Shaiju P Varghese v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944`** ## **`WP(C) NO. 21520 OF 2022`** ## **`PETITIONER/S:`** ``` SHAIJU P VARGHESE. AGED 42 YEARS SON OF VARGHESE, LPSA, ST XAVIER'S LP SCHOOL, KURUPPANTHARA, KOTTAYAM DISTRICT - 686 603. (RESIDING AT PULLAKALA (H), KALLARA PO, KOTTAYAM - 686 611). BY ADVS. V.A.MUHAMMED M.SAJJAD ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, THIRUVANANTHAPURAM-695 001. 2THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014. 3THE DEPUTY DIRECTOR OF EDUCATION, PALACE RD, KOTTAYAM - 686 001. 4THE DISTRICT EDUCATIONAL OFFICER, PALA, KOTTAYAM DISTRICT - 686 506. 5THE ASSISTANT EDUCATIONAL OFFICER, KURAVILANGAD, KOTTAYAM DISTRICT - 686 633. 6THE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALA, KOTTAYAM DISTRICT - 686 575. 7HEADMASTER, HOLY CROSS HSS, CHERUPUNKAL, ``` ``` WP(C) NO. 21520 OF 2022 ``` ``` 2 ``` ``` KOTTAYAM DISTRICT - 686 584. 8THE HEADMASTER, ST XAVIER'S LPS, KURUPPANTHARA, KOTTAYAM DISTRICT - 686 603. ``` ``` SRI PREMCHAND R NAIR SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON01.07.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 21520 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** The petitioner states that he entered service as Lower Primary School Assistant (L.P.S.A.) in the Holy Cross HSS, Cherpunkal, with effect from 02.06.2008 in an additional division vacancy. The grievance of the petitioner concerns the non-approval of the appointment of the petitioner from the date of appointment. 2. Sri. V. Rajasekharan Nair, the learned counsel appearing for the petitioner 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. One among 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. 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 ``` WP(C) NO. 21520 OF 2022 ``` ``` 4 ``` was also included in the package and his appointment was regularised with effect from 1.6.2011. According to the petitioner, similarly placed teachers 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 petitioner contends that relying on the law laid down by this Court, the petitioner has preferred Ext.P10 revision petition before the 1st respondent. It is in the afore circumstances that the petitioner is before this Court seeking a direction to the 1st respondent to consider and pass orders in the revision petition. 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 submitted that if the limited request is only to consider the revision petition, there cannot be any impediment. ``` WP(C) NO. 21520 OF 2022 ``` ``` 5 ``` 4. In the nature of the order that I propose to pass, notice to the party respondents is dispensed with. 5. I have considered the submissions advanced. The writ petitioner was appointed during the period when the ban, pursuant to G.O.(P) No.10/10/G.Edn. Dated 12.1.2010, was in force. The appointment of the petitioner was approved only with effect from 1.6.2011 on the ground that there was a ban on appointments at the time of his initial appointment and that the Manager had failed to execute the bond in terms of G.O.(P)No.10/10. 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 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 may be passed by the Apex Court in the pending litigation. ``` WP(C) NO. 21520 OF 2022 ``` ``` 6 ``` 6. After having carefully evaluated the contentions raised in this writ petition, the submissions made across the Bar and the facts and circumstances, I am of the view that this writ petition can be disposed of by issuing the following directions: - a) The 1st respondent is directed to take up, consider and pass orders on Exhibit P10 revision petition filed by the petitioner with notice to the petitioner as well as the 6th respondent and take a decision, taking note of the law laid down by this Court in **Suma Devi** (supra). Orders shall be passed expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. - b) While considering the revision petition, the Secretary to Government 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. It is ``` WP(C) NO. 21520 OF 2022 ``` ``` 7 ``` made clear that the orders passed by the 1st respondent shall be subject to the final orders passed by the Apex Court in the pending petitions. c) It would be open to the petitioner to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. The writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 21520 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 21520/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 02.06.2008 ``` - `Exhibit P2 TRUE COPY OF THE PROCEEDINGS OF THE DEO, PALA VIDE ORDER NO. B2-3733/2008/K.DIS DATED 05.09.2008` - `Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION VIDE ORDER NO. B3/15386/2008/D.DIS DATED 11.11.2008.` - `Exhibit P4 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01.06.2009 AT HOLY CROSS HSS, CHERUPUNKAL.` - `Exhibit P5 TRUE COPY OF THE APPOINTMENT ORDER OF THE 01.06.2010 AT HOLY CROSS HSS, PETITIONER CHERUPUNKAL.` - `Exhibit P6 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 15.06.2011 AT ST PETER'S LPS, ELANJI.` ``` Exhibit P7TRUE COPY OF THE JUDGMENT IN W.A. NO.2290/2015 DATED 25.07.2017 ``` ``` Exhibit P7 ATRUE COPY OF THE JUDGMENT IN WA NO. 2091/2018 DATED 28.06.2019. ``` ``` Exhibit P8TRUE COPY OF THE GO(RT) NO. 4814/2017/G.EDN DATED 15.12.2017. ``` ``` Exhibit P9TRUE COPY OF GO(RT) NO. 3124/2021/G.EDN DATED 24.06.2021. ``` - `Exhibit P10 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 28.05.2022`