ShyLaja.K v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 ``` ## **`WP(C) NO. 169 OF 2015`** ## **`PETITIONER/S:`** ``` SHYLAJA.K AGED 40 YEARS W/O.MOHANAN.K., THIRUVONAM HOUSE, NIDUMBA P.O., CHERUVATHUR (VIA), KASARGOD DISTRICT, PIN-671313. ``` ``` BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2DEPUTY DIRECTOR (EDUCATION) KASARAGOD, VIDYA NAGAR P.O., PIN-671123. 3DISTRICT EDUCATIONAL OFFICER KANHANGAD, PIN-671315. 4THE MANAGER PMSAPTS VHSS, KAIKOTTUKADAVU, ELAMBACHI P.O., KASARAGOD DISTRICT, PIN-671311. 5BEENA.V.M. UPPER PRIMARY SCHOOL ASSISTANT, PMSAPTS VHSS KAIKOTTUKADAVU, ELAMBACHI P.O., KASARAGOD DISTRICT, PIN-671311. ``` ## **`BY ADV GOVERNMENT PLEADER`** ## **`OTHER PRESENT:`** ## **`SR GP SRI T K VIPINDAS`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) 169/2015 2 ## **J U D G M E N T** The petitioner was appointed as Lower Grade Hindi Teacher with effect from 01.06.2010. However, the said appointment was not approved by the Educational Authorities and declined by Ext.P2 dated 12.01.2011 on the grounds that fresh appointments can be considered for approval only after absorption of protected hands as per GO(P) No.10/10/G.Edn dated 12.11.2011, Ext.P3, and also that the original qualification certificate and self attested copies of mark list of SSLC etc. were not produced. The Manager did not file any appeal against Ext.P2 order by which the approval of appointment of the petitioner was declined. However, the petitioner had filed appeal against Ext.P2 before the Deputy Director (Education). The original certificates of the petitioner were produced before the authorities later. In the meantime, certain developments took place. The Manager cancelled the appointment of the petitioner by Ext.P4 order dated 28.02.2011, and appointed the 5[th] respondent in the said school. Later, the petitioner challenged Ext.P4 order in WP(C) No.7894/2011 in which an interim order was passed on 14.03.2011 directing the Manager not to fill up the existing vacancy of Lower Grade Hindi Teacher for a period of two weeks. The 2[nd] respondent Deputy Director of WP(C) 169/2015 3 Education rejected the appeal filed by the petitioner by Ext.P5 order stating that the appointment of the petitioner is against the provisions of Ext.P3 Government Order. Aggrieved by Ext.P5 order, the petitioner filed a review petition before the Government and approached this Court in the pending writ petition, WP(C) No.7894/2011. By Ext.P6 interim order dated 30.06.2011 in the said writ petition, this Court directed the Government to consider the review petition. Pursuant to the said direction, the review petition was taken up by the Government on 21.11.2011 and by Ext.P7 order direction was issued not to approve any appointment of UPSA/Lower Grade Hindi Teacher made in the school before approving the appointment of the petitioner. It was also ordered that a protected teacher in the school has a better claim than a Rule 51A claimant. This Court by interim order dated 13.10.2011 in WP(C) No.7894/2011 directed the Manager to reappoint the petitioner, which was challenged by the Manager before this Court in W.A.No.1660/2011. A Division Bench of this Court called for the writ petition itself and by the common judgment dated 6.12.2011 (Ext.P9) disposed of the writ petition and the writ appeal recording the submission of the Manager that he will reinstate the petitioner in service and liberty was granted WP(C) 169/2015 4 to the respective parties to question the orders of the Government. It appears that the Manager was satisfied with the directions issued by the Government and thereafter he did not question the direction contained under Ext.P7, and reappointed the petitioner in the School and submitted the proposal for approval of petitioner's appointment with effect from 01.06.2010. Pursuant to Ext.P7 order, the District Educational Officer granted approval of petitioner’s appointment by Ext.P10 order dated 19.3.2012. However, the approval of appointment of the petitioner as Lower Grade Hindi Teacher was limited with effect from 13.01.2012. Aggrieved by the said order, the petitioner preferred Ext.P11 appeal before the Deputy Director of Education, who by Ext.P12 order dated 14.12.2012 rejected the appeal primarily on the ground that the Manager has to accommodate a protected teacher in terms of GO(P) No.10/10 dated 12.1.2010. As against Ext.P12, the petitioner filed a revision under Rule 92 of Chapter-XIV-A of KER before the Government. By Ext.P14, the Government rejected the said revision petition. The petitioner has thus approached this Court impugning Exts.P10, P12 and P14 Orders to the extent they did not grant approval of appointment of the petitioner with effect from 1.6.2010, and also Ext.P7 to the extent of granting predominance to a WP(C) 169/2015 5 ## protected teacher over a Rule 51A claimant. 2. The 3[rd] respondent has filed a counter affidavit in which it is stated that it was because of the failure on the part of the Manager to appoint a protected teacher in terms of GO(P) No.10/10 dated 12.10.2010 that the Educational Authorities refused to approve the appointment of the petitioner. Still further, it is contended that there was another incumbent who was discharging her duties during the period the petitioner claims appointment. Hence, it is contended that the authorities were justified in rejecting the claim of the petitioner. A separate counter affidavit has been filed on behalf of the 1[st] respondent also in which the very same contentions are reiterated. 3. I have heard Sri.S.P.Aravindakshan Pillay, learned counsel appearing for the petitioner, and Sri.T.K.Vipindas, learned Government Pleader appearing for respondents 1 to 3. There is no appearance for respondents 4 and 5. 4. Sri.S.P.Aravindakshan Pillay, learned counsel appearing for the petitioner would contend that based on the judgment of this Court in **Ciji.P.Jose v. State of Kerala [2012(1) KLT 867]** , which was affirmed by the Division Bench in W.A.No.30/2014 **[State of Kerala v. Ciji P.Jose,** reported in **2015(1) KLT 458],** the finding by the WP(C) 169/2015 6 Educational Authorities that the petitioner’s appointment cannot be approved with effect from 01.06.2010 because of the refusal on the part of the Manager to appoint a protected teacher, cannot be sustained. The Educational Authorities cannot sit in over the principles laid down by a Division Bench of this Court and therefore, prays that the orders impugned in the writ petition be quashed and a declaration be issued that the petitioner is entitled for approval of her appointment with effect from 01.06.2010. 5. On the other hand, the learned Government Pleader would point out that the whole scenario happened because of the action of the Manager in canceling the appointment of the petitioner and appointing another incumbent in the vacancy. However, it is conceded before this Court that the approval of appointment of the 5[th] respondent was declined by the Educational Authorities. But still it is pointed out that the inaction on the part of the Manager in not accommodating a protected teacher will definitely be a guiding factor before the Educational Authorities while considering the request for approval of the appointment of the petitioner. The learned Government Pleader also pointed out that in tune with the amendment to the proviso to Rule 51A _,_ the petitioner is not entitled to any relief in the writ petition. WP(C) 169/2015 7 6. The learned counsel appearing for the petitioner would also point out that as per Ext.P15 affidavit filed by the Manager before the Deputy Director of Education, it is conceded by the Manager that he will appoint a protected teacher in the next arising vacancy. This affidavit is dated 24.11.2010. Therefore, according to the learned counsel appearing for the petitioner, the stand of the Educational Authorities as affirmed by the Government definitely calls for interference at the hands of this Court. 7. I have considered the rival submissions raised across the bar. 8. The only point which arises for consideration by this Court is as to whether a protected teacher is entitled to claim preference over a Rule 51A claimant. This point is no longer res integra insofar as the categoric finding of the Division Bench in **State of Kerala v. Ciji P.Jose [2015 (1) KLT 458]** . Therefore, this Court necessarily finds that the petitioner is entitled to succeed. Accordingly, Ext.P7 order to the extent it states that a protected teacher has superior claim over a Rule 51A claimant is quashed. So also, Exts.P10, P12 and P14 orders to the extent of granting approval of appointment of the petitioner with effect from 13.10.2012 alone are set aside. It is declared that the WP(C) 169/2015 8 petitioner is entitled to have her appointment approved with effect from 01.06.2010. The 3[rd] respondent is directed to pass consequential orders in the light of the principles laid down by this Court in **Ciji P.Jose** _(supra)_ and grant all consequential monetary benefits to the petitioner. Needful in this regard shall be done by the 3[rd] respondent as early as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. No order as to costs. Sd/- **EASWARAN S. JUDGE** jg WP(C) 169/2015 9 ## **`APPENDIX OF WP(C) 169/2015`** ## **`PETITIONER EXHIBITS`** ``` P1: COPY OF THE RASHTRAPBHASHA VISHARAD DEGREE CERTIFICATE OF THE PETITIONER. ``` ``` P2: COPY OF THE ORDER NO.K.DIS.3707/2010/B3 DATED 12.1.2011 OF THE 3RD RESPONDENT. ``` ``` P3: COPY OF THE G.O(P)NO.10/10/G.EDN. DATED 12.01.2010. ``` ``` P4: COPY OF THE ORDER NO.6/11/2010-11 DATED 28.2.2011 OF THE 4TH RESPONDENT. ``` ``` P5: COPY OF THE ORDER NO.B1/2098/2011/K.DIS DATED 19.4.2011 OF THE 2ND RESPONDENT. ``` ``` P6: COPY OF THE INTERIM ORDER DARTED 30.6.2011 IN I.A.NO.10166 OF 2011 IN WP(C)NO.7894 OF 2011 OF THIS HON'BLE COURT. ``` ``` P7: COPY OF THE GO(RT)NO.5138/2011/G.EDN. DATED 21.11.2011. ``` ``` P8: COPY OF THE ORDER DATED 24.10.2011 IN WPC.NO.7894 OF 2011, THIS HON'BLE COURT. ``` ``` P9: COPY OF THE JUDGMENT DATED 6.12.2011 IN W.A.NO.1660/11, THE DIVISION BENCH OF THIS HON'BLE COURT. ``` ``` P10: COPY OF THE ORDER NO.B3/2067/11 DATED 19.3.2012 OF THE 3RD RESPONDENT. ``` ``` P11: COPY OF THE APPEAL DATED 16.4.2012 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. ``` ``` P12: COPY OF THE ORDER NO.B1/6074/2012/K.DIS DATED 14.12.2012 OF THE 2ND RESPONDENT. ``` ``` P13: COPY OF THE REVIEW PETITION DATED 22.01.2013 SUBMITTED BY THE PETITIONER BEFORE GOVERNMENT. ``` ``` P14: COPY OF THE GOVERNMENT LETTER NO.46641/E1/13/G.EDN. DATED 4.11.2014. ``` ``` P15: COPY OF THE LETTER DATED 17.5.2011 OF THE 4TH RESPONDENT WITHOUT ITS ENCLOSURES ALONG WITH A COPY OF THE AFFIDAVIT SUBMITTED BY THE 4TH RESPONDENT EXPRESSING WILLINGNESS TO COMPLY WITH EXT.P3 GOVERNMENT ORDER. ```