Seena P.C. v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944`** ## **`WP(C) NO. 39055 OF 2022`** ## **`PETITIONER/S:`** ``` SEENA P.C.,AGED 41 YEARS W/O. MICHEL ZAKARIAZ, U.P.S.A., ST.AGNE'S L.P.S., MUTTIYARA, KADUTHURUTHY, KOTTAYAM, RESIDING AT MAPPALLIL HOUSE, KADAPLAMATTOM P.O., KOTTAYAM. BY ADVS. B.MOHANLAL ABIJITH M. ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY P.O., THIRUVANANTHAPURAM-695 014.` - `3 THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM-686 001.` - `4 THE ASSISTANT EDUCATIONAL OFFICER, RAMAPURAM P.O., KOTTAYAM - 686 576.` - `5 THE ASSISTANT EDUCATIONAL OFFICER, ERATTUPETTA, KOTTAYAM-686 121.` - `6 THE ASSISTANT EDUCATIONAL OFFICER, ARAKULAM, IDUKKI-685 591.` - `7 THE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALA, PALA-686 575.` ## **`OTHER PRESENT:`** ``` SMT. SURYA BINOY SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2- W.P.(C). No. 39055 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 39055 of 2022 ============================================================= Dated this the 28[th ] day of February, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“(1) To call for the records leading to Ext.P8, P15 and P16 Orders from the Respondents and issue of a writ of certiorari or other appropriate writ order or direction quashing Ext.P8, P15 and P16 Orders of the Respondents declining to approve the appointment of the Petitioner to the post of L.P.S.A. in S.T.L.P.S. Thudaganad for the Academic year 2009-2010 and 2010-2011 on regular basis in the 7[th] Respondent Corporate Educational Agency._ _(ii) To issue a writ of mandamus or other appropriate writ, order or direction commanding the Respondents to grant approval of appointment to the Petitioner to the post of L.P.S.A. in S.T.L.P.S. Thudanganad for the Academic year 2009-2010 and 2010-2011 in the 7[th] Respondent Corporate Educational Agency on regular basis in the light of State of Kerala Vs. Nadeera and Others in 2013 (2) KLT Page-88 within a stipulated time as directed by this Hon'ble Court._ _(iii) To declare that the Petitioner is entitled to get approval of appointment to the post of post of L.P.S.A. in S.T.L.P.S. Thudaganad for the Academic year 2009-2010 and 20102011 in the 7[th] Respondent Corporate Educational Agency_ 3- W.P.(C). No. 39055 of 2022 _on regular basis in the light of State of Kerala Vs. Nadeera and Others in 2013(2) KLT Page-88._ _(iv) To issue a writ of mandamus or other appropriate writ, order or direction commanding the Respondents to grant scale of pay to the Petitioner for the Academic Year 20092010 and 2010-2011 on regular basis after approval of appointment of the Petitioner by the Educational Authorities._ _(v) To dispense with the translation of the documents produced in the Vernacular Language._ _(vi) To issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.” (sic)_ 2. It is the case of the petitioner that she after qualifying TTC got appointment to the post of LPSA in the 7[th] respondent Corporate Educational Agency on different spells from 16.11.2005 to 25.03.2008 and it is the case of the petitioner that it was approved by respondents 4 to 6 only on daily wage basis. It is the further case of the petitioner that the 6[th] respondent educational officer rejected the approval of the petitioner for the period from 2008-09 to 2010-11 as per Ext.P6 to P8 order because of GO(P) No.317/2005/G.Edn., dated 17.08.2005. It is 4- W.P.(C). No. 39055 of 2022 the case of the petitioner that subsequently, the Government issued GO(P) No.10/10/G.Edn., dated 12.01.2010 lifting the ban on appointment and the approval will be on condition that the manager would have to execute bond with the educational authority undertaking to appoint protected teachers. The staff fixation order for the period was modified by the concerned educational officers, and according to the petitioner, there exist vacancies to accommodate the petitioner. It is the further case of the petitioner that, if the educational authorities declined the approval on the ground that the manager did not execute bond/declaration as required in terms of GO(P) No.10/10/G.Edn., dated 12.01.2010, the appointment can be approved deeming that there is a bond. Pointing out the above aspects, the petitioner filed representation before the 1[st] respondent on 20.12.2016 requesting to approve the appointment for the period 2008-09 to 2009-10 covered by Exts.P6 and P7and thereafter filed WP(C) No.28242 of 2017. This Court as per the judgment in the above 5- W.P.(C). No. 39055 of 2022 writ petition directed the 1[st] respondent to consider the representation submitted by the petitioner. Accordingly, the 1[st] respondent passed Ext.P11 order directing the 6[th] respondent to approve the appointment of the petitioner for the period 2008-09 and 2009-10 and accordingly, the 6[th] respondent approved the appointment as per Exts.P12 and P13. It is the case of the petitioner that respondents have not taken steps to approve the appointment of the petitioner for the period from 15.06.2010 to 31.03.2011. Hence, the petitioner filed representation before the 1[st] respondent, which resulted in Ext.P14 judgment. This court directed the 1[st] respondent to consider the representation within two months and pass orders after hearing the parties. Thereafter, the 1[st] respondent rejected the claim by Ext.P15. It is the case of the petitioner that the 6[th] respondent misinterpreting the directions in Ext.P11 order and cancelled the approval of appointment granted as per Ext.P13 by Ext.P16 order. It is also the case of the petitioner that the 3[rd] respondent Deputy Director of Education 6- W.P.(C). No. 39055 of 2022 failed to furnish the list of protected teachers for the academic year 2009-10 and 2010-11 to be appointed by the 7[th] respondent manager as provided in GO(P) No.10/10/G.Edn., dated 12.01.2010 and hence there is no obligation on the part of the manager to appoint a protected teacher as held by this Court in **Moosakutty v. DEO, Wandoor** [2009(3) KLT 863] and **State of Kerala v. Nadeera and others** [2013(2)KLT 88]. It is also submitted that a division bench of this Court in WA No.300 of 2019 considered the ambit of GO(P) No.10/10/G.Edn., dated 12.01.2010. Thereafter, similarly situated teacher, whose appointment was not approved for the academic year 2010-11 approached this Court by filing WP(C) No.25774 of 2020 and this Court set aside Ext.P15 in this case. According to the petitioner, the petitioner is also similarly situated person and therefore, the petitioner is entitled the same benefit. The counsel also submitted that as per Ext.P16, the approval of the 7- W.P.(C). No. 39055 of 2022 appointment of the petitioner for the period from 2009-10 was rejected. Ext.P16 is also challenged by the petitioner. 3. Heard the counsel for the petitioner and the Government Pleader. 4. A perusal of Ext.P15 order will show that the approval of the appointment of the petitioner for the period from 15.06.2010 to 31.03.2011 was rejected. As far as one sister Mercy Peter also concerned, the approval was rejected by Ext.P15 order itself for the same reason. The above mentioned Sister Mercy Peter challenged Ext.P15 order before this Court by filing WP(C) No.25774 of 2020. This Court considered that writ petition in detail and set aside Ext.P15 as far as Sister Mercy Peter is concerned as evident by Ext.P18. I think, it will be beneficial to extract the relevant portion of that judgment here: 8- W.P.(C). No. 39055 of 2022 _“4. I have heard Shri.B.Mohan Lal, learned counsel for the petitioner and Shri.P.M.Manoj, learned Senior Government Pleader, for the official respondents._ _5. When this matter was considered on an earlier date, the learned Senior Government Pleader had submitted that the rigour of the aforementioned Government Order would apply in this case fully because, even though the Manager was furnished with the list of protected teachers in the Educational District concerned, he had chosen not to appoint anyone of them and to prefer the petitioner._ _6. This contention of the learned Senior Government Pleader was refuted by Shri.B.Mohan Lal saying that no such list of protected teachers had been furnished by any of the educational Authorities to the Manager; and I, therefore, indited an order dated 09.12.2020, in the following manner:_ _“Shri.B.Mohan Lal, learned counsel for the petitioner submits, that the competent Educational Authority had not furnished a list of protected teachers to the Manager at the time when his client's appointment was made. The learned Government Pleader seeks time to obtain instructions in this regard.”_ _7. Today when this matter was called, the learned Senior Government Pleader, Shri.P.M.Manoj, conceded that even though the Deputy Director of Education had forwarded the list of protected Teachers to the District Educational Officers (DEOs) concerned, there is nothing on record to_ 9- W.P.(C). No. 39055 of 2022 _even indicate that the jurisdictional DEO of the area in question had forwarded the same to the Manager of the School._ _8. When I hear the submissions of the learned Senior Government Pleader as afore, it is ineluctable that unless it is shown by the educational Authorities that a list of protected teachers had been made available to the Manager at the relevant time, the declarations of law by this Court in Nadeera (Supra) and Moosakutty (Supra) would be attracted in its full vigour._ _9. Since it is now admitted that no list of protected teachers had been issued by the DEO to the Manager of the School in question, I am certain in my mind that petitioner is entitled to relief, as sought for, based on the aforementioned judgments._ _In the afore circusmtances, I allow this writ petition and set aside Exts.P2 and P9; with a consequential direction to the 4th respondent - Assistant Educational Oficer to grant approval to the petitioner's appointment for the period between 16.08.2010 and 31.03.2011, based on the proposals furnished before him, deeming that the Manager of the School had executed a Bond in terms of G.O.(P)No.10/10/G.Edn. Dated 12/01/2010._ _The afore exercise shall be completed by the AEO as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment and all resultant benefits to the petitioner, based on the same,_ 10- W.P.(C). No. 39055 of 2022 _shall be disbursed to her within a period of three months thereafter.”_ 5. I think the petitioner is also entitled the same benefit. So the appointment of the petitioner for the period from 15.06.2010 to 31.03.2011 is to be approved by the educational authority. As far as Ext.P16 is concerned, it is an order passed by the Assistant Educational Officer. The petitioner can challenge Ext.P16 before the 1[st] respondent Government itself, within a time frame and till then the recovery based on Ext.P16 can be deferred. Therefore, this writ petition is disposed of in the following manner: 1. Exts.P8 and Ext.P15 are set aside. 2. The competent authority among the respondents will order the pass consequential approving appointment of the petitioner for the period from 15.06.2010 to 31.03.2011, as expeditiously as 11- W.P.(C). No. 39055 of 2022 possible, at any rate within two months from the date of receipt of a copy of this judgment. 4. As far as Ext.P16 is concerned, the petitioner is free to challenge Ext.P16 by filing a revision before the 1[st] respondent within one month from the date of receipt of a copy of this judgment. 5. Once such a revision is received, the 1[st] respondent will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner, within four months from the date of receipt of the revision. 6. Till final orders are passed as directed above, the recovery based on Ext.P16 shall be deferred. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das 12- W.P.(C). No. 39055 of 2022 ## **`APPENDIX OF WP(C) 39055/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1THE TRUE COPY OF THE APPOINTMENT ORDER DATED 16/11/2005 ISSUED BY THE 7TH RESPONDENT AND ITS APPROVAL ORDER NO:C- 4776/05/K.DIS DATED 22/12/2005 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. Exhibit P2THE TRUE COPY OF THE APPOINTMENT ORDER DATED 18/09/2006 ISSUED BY THE 7TH RESPONDENT AND ITS APPROVAL ORDER NO: C-441/10/K.DIS. DATED 24/02/2010 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. Exhibit P3THE TRUE COPY OF THE APPOINTMENT ORDER DATED 15/06/2007 ISSUED BY THE 7TH RESPONDENT AND ITS APPROVAL ORDER NO:C/2473/07/K.DIS. DATED 07/08/2007 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. Exhibit P4THE TRUE COPY OF THE APPOINTMENT ORDER DATED 24/09/2007 ISSUED BY THE 7TH RESPONDENT AND ITS APPROVAL ORDER NO: D-4316/07/K.DIS DATED 17/10/2007 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. Exhibit P5THE TRUE COPY OF THE APPOINTMENT ORDER DATED 13/11/2007 ISSUED BY THE 7TH RESPONDENT AND ITS APPROVAL ORDER NO: C/5374/07/K.DIS DATED 03/12/2007 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. Exhibit P6THE TRUE COPY OF THE APPROVAL ORDER NO: C/974/08/K.DIS DATED 25/10/2008 ISSUED BY THE 6TH RESPONDENT. Exhibit P7THE TRUE COPY OF THE APPROVAL ORDER NO: C/1008/09/K.DIS. DATED 12/10/2009 ISSUED BY THE 6TH RESPONDENT. Exhibit P8THE TRUE COPY OF THE APPROVAL ORDER NO: C/984/2010 DATED NIL ISSUED BY THE 6TH RESPONDENT. ``` 13- W.P.(C). No. 39055 of 2022 |`Exhibit P9`|`THE TRUE COPY OF THE APPOINTMENT ORDER`| |---|---| ||`DATED 13/07/2011 ISSUED BY THE 7TH`| ||`RESPONDENT AND ITS APPROVAL ORDER NO:`| ||`C/973/11/K. DIS DATED 15/03/2012 ISSUED`| ||`BY THE 6TH RESPONDENT TO THE`| ||`PETITIONER.`| |`Exhibit P10`|`THE TRUE COPY OF THE APPOINTMENT ORDER`| ||`DATED 04/06/2012 ISSUED BY THE 7TH`| ||`RESPONDENT AND ITS APPROVAL ORDER NO:`| ||`C/1160/13/K.DIS DATED 03/2013 ISSUED BY`| ||`THE 5TH RESPONDENT.`| |`Exhibit P11`|`THE TRUE COPY OF THE G.O.(RT) NO:`| ||`241/2018/G.EDN. DATED 16.01.2018 ISSUED`| ||`BY THE 1ST RESPONDENT.`| |`Exhibit P12`|`THE TRUE COPY OF THE APPOINTMENT ORDER`| ||`DATED 02/06/2008 ISSUED BY THE 7TH`| ||`RESPONDENT AND ITS APPROVAL ORDER NO.`| ||`C/1712/2017/K.DIS DATED 28.03.2018`| ||`ISSUED BY THE 6TH RESPONDENT.`| |`Exhibit P13`|`THE TRUE COPY OF THE APPOINTMENT ORDER`| ||`DATED 01/06/2009 ISSUED BY THE 7TH`| ||`RESPONDENT AND ITS APPROVAL ORDER NO:`| ||`C/1712/2017/K. DIS DATED 28.03.2018`| ||`ISSUED BY THE 6TH RESPONDENT.`| |`Exhibit P14`|`THE TRUE COPY OF THE JUDGMENT DATED`| ||`05/07/2018 IN W.P. (C)NO:22352/2018 OF`| ||`THIS HON'BLE COURT.`| |`Exhibit P15`|`THE TRUE COPY OF THE G.O.`| ||`(RT)NO.4124/2019/G.EDN DATED 11.10.2019`| ||`ISSUED BY THE 1ST RESPONDENT.`| |`Exhibit P16`|`THE TRUE COPY OF THE ORDER NO:`| ||`C/1711/2017 DATED 10/12/2018 ISSUED BY`| ||`THE 6TH RESPONDENT TO THE PETITIONER.`| |`Exhibit P17`|`THE TRUE COPY OF THE JUDGMENT DATED`| ||`09/08/2019 IN W.A.NO:300/2019 OF THIS`| ||`HON'BLE COURT.`| |`Exhibit P18`|`THE TRUE COPY OF THE JUDGMENT DATED`| ||`27/07/2021 IN W.P. (C)NO:25774/2020 OF`| ||`THIS HON'BLE COURT.`|