Shankini M. Raj v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 WP(C) NO. 26661 OF 2023** ## **PETITIONER:** SHANKINI.M. RAJ, AGED 28 YEARS W/O. AJOY JOSHI, RESIDING AT KOOVAPARAMBIL HOUSE, MOOTHAKUNNAM.P.O., ERNAKULAM DISTRICT, PIN - 683516 BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, THIRUVANANTHAPURAM, PIN - 695014 3 THE DISTRICT EDUCATIONAL OFFICER MARINE DRIVE, KOCHI, ERNAKULAM, PIN - 682011 4 THE CORPORATE MANAGER SDPY SCHOOLS, -2- WP(C)No.26661 of 2023 SREE NARAYANA NAGAR, PALLURUTHY, KOCHI, PIN - 682006 BY ADVS. P.MOHANDAS(ERNAKULAM) K.SUDHINKUMAR(K/572/2014) SABU PULLAN(K/35/2001) GOKUL D. SUDHAKARAN(K/000886/2016) R.BHASKARA KRISHNAN(K/000891/2016) BHARATH MOHAN(K/1392/2020) R4 BY SRI.K.P.SATHEESAN (SR.)(S-242) SRI.PREMCHAND R NAIR, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON 16.02.2024 DELIVERED THE FOLLOWING: -3- WP(C)No.26661 of 2023 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** WP(C)No.26661 of 2023 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 16[th] day of February, 2024 ## **JUDGMENT** The petitioner was first appointed as UPST in the school under the corporate manager-ship of the fourth respondent on 1.6.2015 in a vacancy that arose on the promotion of Smt. Shiji M.M., UPST, as HSA (English). Shiji M.M. was promoted as HSA (English) in an anticipated vacancy during the academic year 2015-2016. However, the said post was not sanctioned for the year 20152016, and accordingly, the appointment of the petitioner as UPST with effect from 1.6.2015 was not approved, and the third respondent rejected the same as per orders dated 27.10.2016. Thereafter, the Manager, again anticipating the sanctioning of the post of HSA for the academic year 2016-2017, promoted Shiji. M.M., and in the resultant vacancy, the petitioner was appointed as UPST as per order dated 1.6.2016, Ext.P1. No staff fixation order for the academic year 20162017 was issued within the time stipulated, and when Ext.P1 order of appointment order was forwarded for approval, the same was directed to be resubmitted as and when the staff fixation order was issued. -4- WP(C)No.26661 of 2023 2. The staff fixation order for the academic year 2016-2017 was issued on 15.7.2016, and a post of HST (English) was sanctioned and the appointment of Shiji. M.M. was approved, and consequently, the appointment of the petitioner also ought to have been approved. As stated earlier, the staff fixation order for the academic year 2016-2017 was delayed when another regular vacancy of UPST arose on 1.6.2017. The Manager, without shifting the petitioner to the said regular vacancy, appointed one Smt.Faseela C.M., as UPST. The petitioner was discharging her duties as UPST pursuant to Ext.P1 order. In the meantime, another regular vacancy of UPST arose on the school 1.6.2017 and the fourth respondent manager, without shifting the petitioner to said regular vacancy pending approval of her appointment, appointed Faseela. C.M. The proposal for approval of the appointment of Faseela C.M. was rejected by orders dated 26.10.2018 on the ground that the appointment of the petitioner, who was senior, was pending approval. The petitioner submits that she was continuously discharging her duties as UPST with effect from 1.6.2016 in the school and had marked the attendance till 23.09.2017., on which day she applied for maternity leave for her confinement from 23.9.2017 up to 21.03.2018. Since there were some complications post-delivery, the petitioner had to apply for leave without allowance from 23.09.2017 up to 23.08.2018. As the fourth respondent was not allowing the petitioner to rejoin duties and was not appointing in the regular vacancy, the petitioner had filed a representation before the third respondent dated 1.6.2018, which was directed to be considered by this Court by Ext.P2 judgment. When the petitioner approached the school on 1.6.2018, the petitioner was served with a copy of the proceedings dated 31.05.2016 by the fourth -5- WP(C)No.26661 of 2023 respondent terminating the services of the petitioner as UPST with effect from 1.6.2016. Thereafter, as directed in Ext.P2 judgment, the third respondent heard the matter and set aside the proceedings of the fourth respondent, terminating the service of the petitioner and directing the fourth respondent to re-consider the same by Ext.P3 proceedings. Again the Manager issued proceedings dated 14.3.2019 terminating the services of the petitioner as UPST and declared the appointment of the Smt.Faseela C.M. as UPST in the vacancy that arose on 1.6.2017 by Ext.P4 proceedings. The petitioner then approached this Court challenging Ext.P4 and also the appointment of Faseela C.M. as UPST with effect from 1.6.2017 by filing WP(C)No.12077/2019, which was disposed of by judgment dated 24.9.2020, Ext.P5. 3. The third respondent pursuant to Ext.P5 order passed Ext.P6 on 30.01.2021, directed the fourth respondent to submit the appointment order of the petitioner for approval with effect from 15.7.2016. The fourth respondent challenged Ext.P6 order by filing a revision before the second respondent, and pursuant to the directions of this Court in Ext.P7 judgment, the second respondent heard the parties and passed Ext.P8 order affirming Ext.P6 order and rejected the appeal filed by the manager. The petitioner challenged Ext.P8 order in a revision petition, which was directed to be disposed of by this Court in the Ext.P9 judgment. Smt Faseela C.M. had also filed a revision against the orders not approving her appointment with effect from 1.6.2017. Pursuant to the said directions, and without the hearing the petitioner, the revision filed by the manager was allowed setting aside Ext.P8 by order dated 16.3.2023, which is -6- WP(C)No.26661 of 2023 marked as Ext.P11, which is challenged in this writ petition. 4. The fourth respondent manager has filed a counter affidavit contending that the petitioner, despite the appointment on 1.6.2015 as well as on 1.6.2016, does not have any approved service. She is also not a claimant either under Rule 43 or Rule 51A of Chapter XIV-A KER, and therefore, she does not have any right to get an appointment in any of the future vacancies arising in the school since she does not have any approved service in the year 2015-2016. Similarly, for the regular vacancies of UPST that arose on 1.6.2017, the manager appointed Faseela C.M., as the petitioner did not have any prior approved service. It is stated that though the petitioner was appointed as UPST on 1.6.2015 in an anticipated vacancy, the said vacancy did not result, and as the appointment was again made anticipating a vacancy on 1.6.2017 was not finalised for want of staff fixation order, the approval of the petitioner was returned. Thus, it is the submission of the manager that she does not have any approved service and, therefore not entitled to claim the vacancy which arose on 1.6.2016 and 1.6.2017 and defended Ext.P11 order. 5. A counter affidavit has also been preferred on behalf of the first respondent, contending that the appointment of the petitioner for the earlier period was not approved and the authority did not consider the request for leave. The petitioner had abstained from school from 23.9.2017 and the fourth respondent has terminated the service of the petitioner with effect from 1.6.2016. -7- WP(C)No.26661 of 2023 It is also stated that since the petitioner does not have approved service, Rule 51A of Chapter XIV-A KER cannot be invoked by her claiming appointment, and accordingly, the first respondent Government tried to sustain Ext.P11. 6. It is seen that this Court had issued notice to the manager and noting that there was a refusal to accept the notice, declared that the service on the fourth respondent manager was complete, proceeded to hear and allowed the writ petition. Subsequently, a review was filed as RP No.1102/2023, and this Court found that since there was no personal service of notice on the fourth respondent manager, allowed the review petition and the judgment dated 26.9.2023 was recalled. 7. Learned counsel for the petitioner, Sri. Elvin Peter P.J. argues that the findings in Ext.P5 judgment, which has become final inter partes, found that the appointment of Shiji. M.M. was approved, and there was an established vacancy to approve the appointment of the petitioner for the academic year 2016-2017 to accommodate the petitioner. These facts are stated in Ext.P11, the impugned order and Exts.P6 and P9 called for no interference at the hands of the Government. He also argues that Ext.P1 was without notice the petitioner and was passed in the revision preferred by another teacher, Faseela C.M. He also contends that Ext.P11 r and the counter-affidavits of the Manager and on behalf of the Government would show as if the claim of the petitioner is under Rule 51A of Chapter XIV-A KER, whereas the petitioner had not claimed any benefits under -8- WP(C)No.26661 of 2023 Rule 51A but sought approval of the appointment made by the manager under Rule 7 of Chapter XIV-A KER to an anticipated vacancy and which was approved later. 8. Learned senior counsel Sri.K.P.Satheesan, instructed by Sri. Sudhin Kumar submits that the petitioner’s appointment was never approved, and in the absence of the petitioner having any approved service, she cannot claim any right either under Rule 43 or 51A of Chapter XIV A KER. It is also argued that her services were terminated, and therefore, the Government is right in passing Ext.P11 order that interfered with the termination order issued by the manager apart from finding that the appointment of the petitioner is to be approved. 9. Sri. Premchand R Nair, the learned senior Government Pleader, also supported Ext.P11, the impugned order, on the same ground that the petitioner did not have approved service. 10. After hearing the learned counsel on all sides, it is relevant to extract the findings in Ext.P5 judgment, which became final interparties. “8. In the above view of the matter, I am of the opinion that it is for the petitioner to establish before the Educational authorities in a properly constituted appeal as against Ext.P6 that the appointment of Shiji.M.M as HST for the academic year 2016-217 stood approved and therefore there was an established vacancy to approve the appointment of the petitioner as per Ext.P2. If the petitioner -9- WP(C)No.26661 of 2023 succeeds in establishing the existence of the vacancy to which she was appointed, the petitioner would be entitled to appropriate reliefs. In the above view of the matter, the petitioner is permitted to file an appeal before the 2nd respondent as against Ext.P6 order issued by the 1st respondent. The petitioner is also free to produce documents to show that the appointment of Shiji M.M as HSST in whose vacancy she had been appointed as UPSA by Ext.P2 order stands approved. In case the petitioner establishes before the 2nd respondent that there was an established vacancy to accommodate her in the academic year 2016-17 the question of her approval shall be duly considered by the 2nd respondent with notice to the petitioner as well as the 1st respondent. It is made clear that since the appointment of the 4th respondent in a vacancy on 01.06.2017 is unconnected with the petitioner’s appointment by Ext.P2, the approval of appointment of the 4th respondent need not await the orders on the appeal to be preferred by the petitioner as against Ext.P6. It will be open to the Educational Authority to consider the claim of the petitioner for approval against the promotion vacancy consequent to a retirement which occurred on 01.06.2017.” 11. A reading of the above in unmistakable terms holds that if the petitioner can establish the fact that the appointment of Shiji M.M. as HSST was approved, which will give rise to an established vacancy to accommodate the petitioner in the academic year 2016-2017, her approval ought to be duly considered. Since these two facts, namely, approval of the appointment of Shiji M.M., as HSST stands approved, which in turn gives rise to an established vacancy to accommodate the petitioner for the academic year 2016-2017, and -10- WP(C)No.26661 of 2023 when both these facts are stated in Ext. P11 itself in favour of the petitioner, there cannot be any reason not to approve the appointment of the petitioner as rightly done in Ext.P6 and P8 orders, which were wrongly interfered with by the Government while passing Ext.P11 order. 12. The argument of the senior counsel, Sri.Satheesan K.P., as well as the Government Pleader, that the petitioner does not have approved service cannot be accepted as much by the findings of this Court in Ext.P5 judgment as by the fact that the petitioner was appointed to an anticipated vacancy. It is also to be noticed that the contention of the learned senior counsel that the petitioner cannot raise any claim under Rule 51A based on Rule 7A(3) of Chapter XIV-A KER also cannot be accepted as the petitioner does not make any claim under Rule 51A of Chapter XIV A KER. The manager is estopped from raising such a plea after being a party to Ext.P5, which has become final. The findings in Ext.P6 and Ext.P8 that the termination of the service of the petitioner by the manager was wrong; is only to be upheld. Given the specific findings in Ext.P5 judgment stated above, and also the orders of the educational authorities, Ext.P6, which was confirmed in Ext.P8, there was no reason for upsetting the same by Ext.P11 order much less without notice to the petitioner. Learned senior counsel also placed reliance on the judgment in **Manager, VKNM Vocational Higher Secondary School v. State of Kerala and others** 2016(1) KHC 430] , which considered the case of claims under Rule 51A of Chapter XIVA KER. This judgment does not apply to the facts of the case for the reasons already mentioned above. -11- WP(C)No.26661 of 2023 13. Under such circumstances, the writ petition is only to be allowed. Ext.P11 is quashed. There will be a direction to respondents 1 to 3 to approve the appointment of the petitioner as UPST with effect from 15.7.2016. The petitioner is also entitled to all the consequential benefits, including seniority, from the said date. Appropriate orders in this regard shall be passed within three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. **Sd/-** **MOHAMMED NIAS C.P.,** **JUDGE** dlk/13.2.2024 -12- WP(C)No.26661 of 2023 ## **APPENDIX OF WP(C) 26661/2023** PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2016 ISSUED BY THE 4TH RESPONDENT APPOINTING THE PETITIONER AS UPST. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 30.10.2018 IN W.P.(C) NO. 35311/2018 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO. B28074/18/K.DIS. DATED 05.01.2019 OF THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO. C/28/19 DATED 14.03.2019 OF THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 24.09.2020 IN W.P.(C) NO. 12077/2019 OF THIS HON'BLE COURT. EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO. B21072/19/K.DIS, DATED 30.01.2021 OF THE 3RD RESPONDENT PASSED IN PURSUANCE OF EXT.P5 JUDGMENT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 10.08.2021 IN W.P.(C) NO. 16083/2021 OF THIS HON'BLE COURT. EXHIBIT P8 TRUE COPY OF THE ORDER NO. E C3/9298/2021/D.G.E. DATED 03.02.2022 OF THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 24.06.2022 IN W.P.(C) NO. 20392/2022 OF THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 25.11.2022 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO. 37982/2022. EXHIBIT P11 TRUE COPY OF THE ORDER G.O.(RT.) NO. 1942/2023/GEDN DATED 16.03.2023 ISSUED BY THE 1ST -13- WP(C)No.26661 of 2023 ## RESPONDENT. ## RESPONDENTS EXHIBITS EXHIBIT-R4(A) TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT DATED 1-6-2016 EXHIBIT-R4(B) TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 10-09-2018 RETURNING THE PROPOSAL OF APPOINTMENT OF THE PETITIONER FOR APPROVAL