Simi Ann Mathew v State of Kerala and Others

**WP(C) NO. 23827 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 WP(C) NO. 23827 OF 2021** ## **PETITIONER/S:** SIMI ANN MATHEW, AGED 37 YEARS, W/O JAMES JACOB, VARIKKATTU HOUSE, ITHITHANAM P.O., CHANGANASSERY, KOTTAYAM-686 535 (UPPER PRIMARY SCHOOL TEACHER, SACRED HEART (SH) HIGHER SECONDARY SCHOOL, MYLAPPRA, PATHANAMTHITTA) BY ADV S.SUBHASH CHAND ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY THE DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001. 3 THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA-689 101. 4 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA-689 645. **WP(C) NO. 23827 OF 2021 2** 5 THE CORPORATE MANAGER/CORRESPONDENT, M.S.C.SCHOOLS , UPASANA PASTORAL CENTRE, OMALLOOR, PATHANAMTHITTA-689 647. SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 23827 OF 2021** **3** ## **JUDGMENT** The petitioner is working as an Upper Primary School Teacher in the SH Higher Secondary School, Mylappra, an aided School managed by the 5th respondent. The petitioner challenges Ext.P7 order as per which, the appeal preferred by the School Manager was rejected on the ground that grant of approval on daily wage basis was impermissible in a regular vacancy. ## 2. The brief facts are as under: The petitioner contends that one Smt. Julie Joseph, who was working as an Upper Primary School Teacher in the school, was promoted as a High School Teacher with effect from 14.10.2019 and she was posted in the same school. In the regular promotion vacancy of UPST, which arose in the High School from 14.10.2019, the petitioner was appointed by Ext.P1 order dated 14.10.2019 by the Manager on a daily wage basis for the period from 14.10.2019 to 31.3.2020. The petitioner contends that in view of the law laid down in **State of Kerala v. Sneha Cherian** [2013 (1) KLT 755], the appointment in a regular vacancy could not have been given on a daily wage basis. This, according to the petitioner, was a bona fide mistake on the part **WP(C) NO. 23827 OF 2021 4** of the Manager. The proposal submitted by the Manager before the 4th respondent was in the afore circumstances rejected by Ext.P2 order. The petitioner contends that when approval was granted to the promotion of Smt. Julie Joseph as HST with effect from 14.10.2019, the promotion vacancy had become established and this fact is evident from Ext.P3 order passed by the 4th respondent. The 5th respondent admitting the mistake on his part preferred an appeal before the 3rd respondent. The 3rd respondent by Ext.P4 order rejected the appeal, holding that no order passed by the Government enabled the Corporate Manager to make an appointment on a daily wage basis in a regular vacancy. Being aggrieved, the Manager approached the 2nd respondent and filed an appeal. In the appeal, the Manager had sought permission to convert Ext.P1 daily wage appointment to a regular UPST appointment after condoning the delay involved. However, by Ext.P7 order, the appeal filed by the Manager was rejected. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exts.P2, P4 and P7 and for issuance of further directions to the 2nd respondent to consider Ext.P6 regular appointment order for approval by granting the requisite permission by condoning the delay under the first proviso to Rule 8 Chapter XIVA of the KER. 3. Sri. Subhash Chand, the learned counsel appearing for the petitioner **WP(C) NO. 23827 OF 2021** **5** submitted by referring to Ext.P7 order that the 2nd respondent has rejected the appeal even without affording an opportunity of being heard to the petitioner. It is submitted that under Rule 8 Chapter XIV of the KER, the Manager of an aided school is required to submit papers relating to the appointments made by him for approval before the Educational Officer within a period of 15 days. However, under the first Proviso to the above rule, the concerned Deputy Director of General Education has powers to condone the delay of up to six months and beyond the said period, the power to condone delay is vested upon the Director of General Education. It was by seeking the exercise of the above powers that the 5th respondent had approached the 2nd respondent and preferred the appeal. The 5th respondent had admitted in the appeal that he had committed a mistake in appointing the petitioner in a regular promotion vacancy and had also sought for permission to convert the same into a regular appointment. In order to show the bona fide, the Manager had also produced Ext.P6 regular appointment order before the 2nd respondent. It is contended that it was without considering any of the above aspects that on the solitary ground that no appointment on daily wages could have been made in a regular vacancy that the request made by the Manager was rejected. 4. I have heard the learned Government Pleader and have considered **WP(C) NO. 23827 OF 2021** **6** the submissions advanced. 5. The records reveal that it was by Ext.P1 order that the petitioner was appointed as a UPST on daily wage basis. The appointment was made in a regular promotion vacancy which had arisen in the school with effect from 14.10.2019. It cannot be disputed that the law as settled by the Apex Court, conclusively says that in a regular vacancy, the appointment cannot be given on a daily wage basis. It is in the afore circumstances and admitting the mistake committed by the Manager that Ext.P6 regular appointment order was issued to the petitioner. From Ext.P6, it is obvious that the Manager had recognised the mistake committed by him and had consciously withdrawn Ext.P1 appointment order and issued a fresh order. Even in the appeal filed before the 2nd respondent by the correspondent of the school, the Manager had admitted his mistake and had sought for condoning the delay by invoking the Proviso to Rule 8 Chapter XIVA of the KER. However, from the impugned order it appears that none of these aspects was taken note of by the 2nd respondent and the request made was rejected on the solitary ground that no appointment on daily wage basis was permissible. The petitioner has a specific contention that the principles of natural justice were violated as neither the Manager nor the Teacher was granted an opportunity to advance their contentions. **WP(C) NO. 23827 OF 2021 7** 6. Having considered the matter in all its perspectives, I am of the view that Ext.P7 order warrants interference. The order will stand set aside. There will be a direction to the 2nd respondent to reconsider the issue and pass fresh orders adverting to Ext.P6 regular appointment order and also by considering whether the correspondent has made out a case for condoning the delay under the first Proviso to Rule 8 of Chapter XIVA of the KER. Fresh orders shall be passed, expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment with notice to the petitioner and the Manager. This writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** DSV **WP(C) NO. 23827 OF 2021 8** ## **APPENDIX OF WP(C) 23827/2021** PETITIONER (S) EXHIBITS: Exhibit P1 - TRUE COPY OF THE APPOINTMENT ORDER DATED 14.10.2019 ISSUED BY RESPONDENT NO 5. - Exhibit P2 TRUE COPY OF THE ORDER BEARING NO B4/17070/2019/K.DIS DATED 20.1.2020 PASSED BY RESPONDENT NO 4. - Exhibit P3 TRUE COPY OF THE ORDER BEARING NO B4/17073/P.DIS DATED 4.2.2020 PASSED BY RESPONDENT NO 4. - Exhibit P4 TRUE COPY OF THE ORDER BEARING NO B4/211356/2020 DATED 28.5.2020. - Exhibit P4(A) TRUE COPY OF THE APPEAL BEARING NO 164/PTA/2019-2020 DATED 27.1.2020 SUBMITTED BY RESPONDENT NO 5 BEFORE RESPONDENT NO 3. - Exhibit P5 TRUE COPY OF THE STATUTORY REVISION PETITION BEARING NO 38/PTA/2020-21 DATED 25.6.2020 SUBMITTED BY RESPONDENT NO 5 BEFORE RESPONDENT NO 2. - Exhibit P6 TRUE COPY OF THE APPOINTMENT ORDER DATED 14.10.2019 ISSUED BY RESPONDENT NO 5. - Exhibit P7 TRUE COPY OF THE ORDER BEARING NO PT3/230118/2020 DATED 17.10.2021 PASSED BY RESPONDENT NO 2. RESPONDENT (S) EXHIBITS: NIL