RESHMY.M v. THE STATE OF KERALA and OTHERS

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` MONDAY, THE 12[TH]DAY OF DECEMBER 2022 / 21ST AGRAHAYANA,1944 WP(C) NO. 24526 OF 2019 ``` ## `PETITIONER/S:` ``` RESHMY.M. ``` ``` HIGH SCHOOL ASSISTANT (MATHS), MALAYATTIL KESAVAN NAIR MEMORIAL HIGHER SECONDARY SCHOOL, P.O. KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT - 685 608. ``` ``` BY ADVS. V.A.MUHAMMED SRI.M.SAJJAD ``` ## `RESPONDENT/S` **`:`** ``` 1THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2THE DIRECTOR OF GENERAL EDUCATION JAGATHY THIRUVANANTHAPURAM - 695 014. 3THE DEPUTY DIRECTOR OF EDUCATION IDUKKI AT THODUPUZHA - 685 584. 4THE DISTRICT EDUCATIONAL OFFICER THODUPUZHA, IDUKKI DISTRICT - 685 584. 5THE MANAGER MALAYTTIL KESAVAN NAIR MEMORIAL HIGHER SECONDARY SCHOOL, P.O. KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT - 685 608. ``` W.P. (C) No.24526 of 2019 2 ``` SMT,MARY BEENA JOSEPH, SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P. (C) No.24526 of 2019 3 ## **JUDGMENT** The petitioner states that she was appointed as High School Assistant (Maths) in the Malayattil Kesavan Nair Memorial Higher Secondary School, an aided school under the management of the 5th respondent, with effect from 13.06.2006. She contends that by Ext.P3 order dated 1.10.2011 issued by the DEO, approval has been granted to the petitioner with effect from 1.6.2011. According to the petitioner, seeking approval of the appointment from the initial date, the petitioner preferred Ext.P8 revision petition before the Government, and pursuant to orders issued by this Court, the same was considered and was rejected by Ext.P10 order. Being aggrieved, the petitioner has approached this Court seeking to quash Exts.P1 and P2 and for issuance of directions to the 4th respondent to approve the promotion appointment of the petitioner as HSA (Maths) from 13.6.2006 to 31.5.2011. 2. Sri.V. Rajasekharan Nair, the learned counsel, submitted that the Government had, as per G.O (P) No.317/2005/G.Edn. dated 17.8.2005, imposed a ban on the appointment of teachers and non-teaching staff in additional division vacancies. Later, by G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the ban on appointments was lifted subject to certain conditions. W.P. (C) No.24526 of 2019 4 One of the conditions was that the Managers should execute a consent letter undertaking that in future vacancies, protected teachers equal to the number of teachers appointed to the additional division vacancies during the period 2006-07 to 2009-10, would be appointed. The 5th respondent failed to execute the bond as required in the Government Order. Thereafter, the Government issued G.O.(P)No.199/2011/G.Edn dated 01.06.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. The petitioner was also included in the package and her appointment was regularised with effect from 1.6.2011. According to the petitioner, teachers similarly placed as the petitioner had approached this Court and by various judgments, this Court had directed the respondents to approve the appointment from the date of appointment by deeming that the Manager had executed the bond. The learned counsel contends that it is settled by now that even in cases wherein, the Manager has not executed bonds, the Managers would be deemed to have executed the bond and they would be obliged to make appointments from the list of protected teachers, equal to the number of appointments approved during the ban period. According to the learned counsel, none of these aspects were considered by the 1st respondent while issuing Ext.P10 order. W.P. (C) No.24526 of 2019 5 3. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 and if the appointment of the protected teacher is not done as provided in G.O.(P) No.10/10/G.Edn. dated 12.1.2010, then the Manager ought to have executed a bond stating that such appointments would be made in accordance with the provisions of the Government Order. It is further submitted that some of the Managers have challenged G.O.(P) No.10/10/G.Edn. dated 12.1.2010 and those matters are now pending before the Apex Court. It is further submitted that it is for the 1st respondent to consider whether the petitioner would be entitled to the benefits of G.O.(P) No.10/10/G.Edn. 4. I have considered the submissions advanced. The petitioner claims that she was appointed during the period when the ban was in force. The question as to whether the above Government Order would apply to the petitioner herein has to be ascertained by the 1st respondent. As rightly contended by the learned counsel, a Division Bench of this Court in **State of Kerala and Ors. v. V.S.Suma Devi and Ors** . [judgment dated 1.8.2017 in W.A.No.2111/2015], has held that in the case of non-execution of the bond by the Managers, it should be deemed that bonds have been executed and the Managers would be obliged to make an equal number of appointments when W.P. (C) No.24526 of 2019 6 the appointments to additional vacancies made during the ban period are approved. Insofar as the pendency of the petitions instituted by the Managers before the Hon’ble Apex Court is concerned, the orders passed shall be subject to the final orders that the Apex Court may pass in the pending litigation. I find that while considering the revision petition filed by the petitioner herein, none of these aspects were considered by the 1st respondent. In that view of the matter, Ext.P10 order cannot be sustained under law. The matter requires reconsideration at the hands of the 1st respondent. 5. In view of the discussion above, the petitioner is entitled to succeed. Ext.P10 will stand quashed. There will be a direction to the 1st respondent to reconsider Ext.P8 petition and pass fresh orders in the light of the observations above. While reconsidering the petition, the Secretary to Government shall consider whether G.O.(P) No.10/10/G.Edn. dated 12.1.2010 would apply and if it applies, the 1st respondent shall be free to reckon that the Managers would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. The fact that the petition challenging G.O.(P) No.10/10 filed by the Managers is pending consideration of the Hon’ble Supreme Court shall not be taken as a ground to deny the benefits W.P. (C) No.24526 of 2019 7 to the petitioner. It is made clear that the orders passed by the 1st respondent shall be subject to the decision of the Hon’ble Supreme Court in the pending petitions. Appropriate orders shall be passed as directed above, expeditiously, in any event, within four months from the date of receipt of a copy of this judgment. Before passing orders, the petitioner, as well as the Manager, shall be afforded an opportunity of being heard. This writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru W.P. (C) No.24526 of 2019 8 ## `APPENDIX OF WP(C) 24526/2019` ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE ORDER NO.B5-3615/06/K.DIS. DATED 22.8.2006 OF THE 4TH RESPONDENT. ``` ``` EXHIBIT P2TRUE COPY OF THE ORDER NO.B4/14555/06/K.DIS. DATED 23.11.2006 OF THE DEPUTY DIRECTOR OF EDUCATION. ``` - `EXHIBIT P3 TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF THE PETITIONER DATED 13.6.2006.` - `EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 12.12.2005 AND APPROVAL THEREON.` ``` EXHIBIT P5TRUE COPY OF THE JUDGMENT IN WPC NO.1552/2012-T DATED 29.3.2017. ``` - `EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO.16337/2009 DATED 9.7.2010.` - `EXHIBIT P7 TRUE COPY OF THE ORDER NO.60930/J2/11/G.EDN. DATED 25.10.2011 OF THE GOVERNMENT.` ``` EXHIBIT P8TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 9.3.2014. ``` ``` EXHIBIT P9TRUE COPY OF THE JUDGMENT IN WPC NO.17397/2014-T DATED 13.1.2015. ``` ``` EXHIBIT P10TRUE COPY OF THE G.O.(RT) NO.165/2016/G.EDN. DATED 14.1.2016 OF THE GOVERNMENT. ``` W.P. (C) No.24526 of 2019 9 ``` Exhibit P11 ``` ``` TRUE COPY OF THE JUDGMENT IN W.P.C 35602/2019 DATED 14/02/2022. ``` ``` RESPONDENTS EXHIBITS : NIL ```