Sameeja T.A. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 29840 OF 2021`** ``` PETITIONER: ``` ``` SAMEEJA T.A., AGED 42 YEARS W/O.MARTIN C.M., HOUSE NO.17/586B, CHETTIPARAMBIL HOUSE, ARYAN-ATHIPOZHI ROAD, MUNDAMEVLI P.O., ERNAKULAM DISTRICT, PIN 682 507, WORKING AS HIGH SCHOOL TEACHER (MALAYALAM), LORETTO ANGLO - INDIAN HIGH SCHOOL, SAUDI, MUNDAMVELI P.O., KOCHI 682 507 BY ADVS. V.N.HARIDAS SAIFUDEEN T.S LINDONS C.DAVIS E.U.DHANYA M.MANU ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP.BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2DIRECTOR OF GENERAL EDUCATION OFFICE OF DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM 695 014. 3DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM, KAKKANAD, PIN 682 030 4DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, KOCHI 682 011 SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2- W.P.(C). No. 29840 of 2021 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 29840 of 2021 ============================================================= Dated this the 2[nd ] day of March, 2023 ## **JUDGMENT** The petitioner Smt. Sameeja T.A. was appointed by the erstwhile Manager of Loretto Anglo-Indian High School to the post of HSA (Malayalam) on 01.02.2016. Now the Deputy Director of Education is acting as the Manager of the above school. It is submitted that the school was upgraded to High School in 2001. The post of HSA (Malayalam) was filled up by protected teachers from time to time, is the submission of the petitioner. According to the petitioner, the last vacancy was filled up by a protected teacher by the name, Smt. Bindu A.P. Later, she returned to her parental school on 06.07.2015, and there occurred a clear vacancy. Therefore, on 01.02.2016, the petitioner was appointed as per Ext.P1 is the submission. It is also the case of the petitioner that the list of protected teachers was not provided to the Manager, nor have the respondents deputed any protected teachers to the school. That is the reason why the petitioner was appointed is the submission, and therefore, the appointment of the petitioner 3- W.P.(C). No. 29840 of 2021 is to be approved for that reason is further the submission of the petitioner. 2. It is also submitted that as on the date of occurrence of vacancy GO(P) No.213/2015/G/Edn. Dated 06.08.2015 was governing the field. Ext.P2 is the above Government Order. As per the said order, the managers are obliged to appoint protected teachers under the same management alone. It is also the case of the petitioner that the said part of the Government Order was upheld by this Court in **Kerala Aided L.P. and U.P. School, Kollam v. State of Kerala and Another** [2016 KHC 118]. It is submitted by the petitioner that, certain parts of Ext.P2 order, especially regarding the staff fixation on the basis of pupil-teacher strength fixed in the order, were not approved by this Court and declared that the same is invalid. It is also submitted that as per Ext.P2, the order regarding the teacher’s bank, i.e., GO(P) No.199/11/G.Edn dated 01.10.2011 and other allied orders were withdrawn. Since the said order exists, it is submitted that protected teachers were not drawn to the revenue district at that time. It is also submitted by the petitioner that it was learnt that at a later stage a list was drawn by the 3[rd] respondent, The Deputy 4- W.P.(C). No. 29840 of 2021 Director of Education, Ernakulam. But according to the petitioner, there was no list provided to the Manager at the time of appointment of the petitioner. In compliance with the **Kerala Aided LP and UP School case** (supra), the Government has issued modified order by incorporating the direction of this Court as per Ext.P3 Government Order dated 29.01.2016. As per Ext.P3, all the appointments made in the academic year 2011-12 to 201516 were directed to be approved by considering 1:35 in classes VI to VIII and 1:35 in classes IX and X. It is submitted that from Ext.P3, it is clear that the appointments in the academic year 201112 to 2015-16 were to be approved and therefore, the petitioner’s appointment, which was on 01.02.2016 is to be approved in tune with Ext.P3 order. Later the Government again clarified as per the circular dated 09.11.2016 that the appointments in the academic year 2015-16 could be approved without the condition of appointing the protected teachers. The Circular No.951951/J2/16/G.Edn dated 09.11.2016 is Ext.P4. According to the petitioner, the only condition in Ext.P4 is that the appointments to the leave vacancies for the period less than three months after 29.01.2016 shall not be approved. According to the 5- W.P.(C). No. 29840 of 2021 petitioner, since the petitioner’s appointment is to the permanent vacancy, the same is to be approved. Only the appointments from 2016-17 onwards were restricted by way of Exts.P3 and P4 orders is the submission. Therefore, it is submitted that the Manager at that time complied with the existing orders from time to time and appointed protected teachers as per the Government Order at that time. According to the petitioner, there is no violation of orders and rules while the petitioner was appointed and she joined duty. It is the submission of the petitioner that the petitioner’s appointment which is in tune with the orders of the Government cannot be rejected for the reason that the Manager at that time has not obeyed the orders of the Government from time to time. But the appointment of the petitioner was initially rejected for the reason that there was a writ petition pending before this Court in which there is an order against the appointment. Later when the permission was received from this Court, the proposal was resubmitted, and the same was again rejected by the District Educational Officer for another reason that the appointment was for a period of 8 months before summer vacation and the appointment is having an effect of regular basis with effect from 6- W.P.(C). No. 29840 of 2021 the academic year 2016-17. The staff fixation for the year 2016-17 has not been conducted. It is also stated that as per the Circular dated 09.11.2016, all the vacancies newly opened in the school should be filled up with protected hands. Ext.P5 is the order of the District Educational Officer. According to the petitioner, Ext.P5 is against the directions in Ext.P3 Government Order and Ext.P4 circular. Hence, the petitioner submitted a revision before the 1[st] respondent, The State of Kerala, represented by its Secretary to the Government, General Education Department, for approving the appointment as evident by Ext.P6. According to the petitioner, as per the judgment of the Apex Court in **State of Kerala v. Cherian** [2013 (1) KLT 797 (SC)], the appointment having a duration of more than one year shall be approved on a regular basis. It is the submission of the petitioner that since the petitioner’s appointment on a regular basis has a duration of more than one year, the petitioner is eligible to get approval as per the same. This Court, as per the directions in WP(C) No.24936 of 2019, directed the 1[st] respondent to consider and pass orders on Ext.P6. But the appointment of the petitioner was rejected as per Ext.P7 by the 7- W.P.(C). No. 29840 of 2021 Government Order. According to the petitioner, Ext.P7 is passed without considering the relevant facts. 3. It is submitted that in continuation to Ext.P3 order, approving the appointments made in the academic years 2011-12 to 2015-16, the approval for appointments for the period from 2016-17 to 2019-20 was also permitted to be approved on the condition that the Manager shall appoint a protected teacher or execute a bond to appoint a protected teacher in future, as per Ext.P8 Government Order. It is submitted that the procedures, if any, such as execution of bond, are to be complied with by the Deputy Director himself because he is now acting as the Manager of the school. According to the 1[st] respondent, the appointment of the petitioner was not approved for the reason of the Kerala Education (Amendment) Act 2016 published in the Gazette dated 14.12.2016, which came into force with effect from 29.01.2016. Therefore, the appointment to the vacancies shall be filled up by protected teachers, is the finding of the 1[st] respondent. It is the submission of the petitioner that the amendment was published only on 14.12.2016, and the said amendment cannot take away the appointment of the petitioner, which was on 01.2.2016, as evident 8- W.P.(C). No. 29840 of 2021 by Ext.P3. It is the submission of the petitioner that her appointment shall be approved with effect from 01.02.2016 as per Ext.P3 order and Ext.P4 circular or in the alternative, the appointment of the petitioner may be approved with effect from 01.06.2016 as per Ext.P8 Government Order. Hence, this writ petition is filed with the following prayers: _“i) To issue a Writ of certiorari or any other appropriate writ or order for quashing Exhibits.P5 and P7 as unjust illegal and arbitrary;_ _ii) To issue a writ of mandamus or any other appropriate writ or order direction, directing the respondents to approve the appointment of the petitioner 01.02.2016 as per Ext.P3 Government Order and P4 Circular or in alternative w.e.f 01.06.2016 as per Ext.P8 Government order and disburse the service and monetary benefits pursuant to the same within time frame fixed by this Hon’ble Court;_ _iii) And to pass such other appropriate orders or directions as this Hon’ble Court deems fit and proper in the facts and proper in the facts and circumstances of the case.” (sic)_ 4. Heard the counsel for the petitioner and the Government Pleader. 5. The counsel for the petitioner submitted that since the appointment of the petitioner was on 01.02.2016, the respondents denied the benefit of Exts.P3 and P4 circular on one side and also 9- W.P.(C). No. 29840 of 2021 the benefit of Ext.P8 Government Order. The counsel for the petitioner submitted that he is confining his prayer for getting the benefit for approval of the appointment based on Ext.P8 alone. The counsel submitted that there may be a direction to reconsider the matter in the light of Ext.P8 Government Order. The counsel submitted that if the petitioner is denied the benefit of Exts.P3, P4 and P8 based on the reason that the petitioner’s appointment was on 01.02.2016, that will be an injustice to the petitioner. The petitioner submits that her appointment may be regularised based on Ext.P8. 6. I think there is some force in the argument of the petitioner. Now that the petitioner confines her prayer for approval of the appointment based on Ext.P8 Government Order. That question can be reconsidered by the Government. To facilitate the Government to reconsider the matter to give the benefit of Ext.P8 Government Order, I think Ext.P7 can be set aside. Therefore, this writ petition is disposed of in the following manner: 1. Ext.P7 is set aside. 10- W.P.(C). No. 29840 of 2021 2. The 1[st] respondent is directed to reconsider the matter in the light of Ext.P8 Government Order after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within a period of four months from the date of receipt of a copy of this judgment. 3. The petitioner will produce a certified copy of this judgment together with a copy of this writ petition before the 1[st] respondent for compliance. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** das 11- W.P.(C). No. 29840 of 2021 ## **`APPENDIX OF WP(C) 29840/2021`** ``` PETITIONER EXHIBITS Exhibit P1A COPY OF THE APPOINTMENT ORDER DATED 1.2.2016 OF THE PETITIONER Exhibit P2A COPY OF GO (P) NO.213/2015/G.EDN. DATED 6.8.2015 Exhibit P3A COPY OF GO (P) NO.29/2016/G.EDN. DATED 29.1.2016 Exhibit P4A COPY OF THE CIRCULAR NO.951951/J2/16/G.EDN DATED 9.11.2016 OF THE 1ST RESPONDENT Exhibit P5A COPY OF THE ORDER NO.B6-10605/16/KDIS DATED 7.1.2017 OF THE DEO. Exhibit P6A COPY OF THE REVISION DATED 20.1.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P7A COPY OF THE ORDER IN G.O.(MS) NO.4961/2021/G.EDN. DATED 3.11.2021 Exhibit P8A COPY OF G.O.(P) NO.4/2021/G.EDN. DATED 6.2.2021 ```