Simi Paul High School Assistant (Malayalam) v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **WP(C).No.11250 OF 2015(E)** ## **- PETITIONER :** **SIMI PAUL HIGH SCHOOL ASSISTANT (MALAYALAM), HOLY FAMILY HIGH SCHOOL, THABORE, ANGAMALY, ERNAKULAM DISTRICT, PIN - 683 577.** ||**BY ADVS.**| |---|---| ||**SRI.K.JAJU BABU (SR.)**| ||**SMT.M.U.VIJAYALAKSHMI**| |**RESPONDENTS**|**:-**| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS**| ||**DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHY,**| ||**THIRUVANANTHAPURAM - 695 014.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**ERNAKULAM - 682 030.**| |**4**|**DISTRICT EDUCATIONAL OFFICER**| ||**ALUVA, PIN - 683 101.**| |**5**|**MANAGER**| ||**HOLY FAMILY HIGH SCHOOL, THABORE, ANGAMALY,**| ||**ERNAKULAM DISTRICT, PIN - 683 577.**| ||**BY SRI.P.M.MANOJ, GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.11250 OF 2015(E) -: 2 :- ## **JUDGMENT** ## **Dated this the 30th day of September 2020** This writ petition is filed seeking the following reliefs :- - “(i) Issue a writ of certiorari, or any other appropriate writ, order or direction, calling for the records leading to Ext.P4, P6, P7, P9 and P10 and quash the same to the extent it interferes the appointment of the petitioner from 4.6.2007 to 30.9.2011 and order recovery of the amount paid to the petitioner as salary during the said period. - (ii) Declare that the action of the respondents in cancelling the approval of appointment of the petitioner as HSA (Malayalam) from 4.6.2007 to 30.9.2011 is arbitrary and unsustainable.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner, who was a claimant under Rule 51A Chapter XIVA KER had been appointed against a regular vacancy of HSA (Malayalam) in the 5[th] respondent School by Ext.P3 appointment order. The regular appointment was from 4.6.2007, it was duly approved and the petitioner was drawing salary also. While so, Ext.P4 communication was issued in the year 2011, informing the Manager that there was an audit objection with regard to the approval of the petitioner's appointment and that a protected WP(C).No.11250 OF 2015(E) -: 3 :- teacher ought to have been appointed in the School pursuant to the Government Order dated 1.2.2006. Ext.P5 reply was submitted to the audit objection by the Manager specifically stating that there was no protected HSA (Malayalam) available in the Revenue District during the relevant period and that protected teachers had earlier been appointed by the Manager. However, Ext.P6 order was passed cancelling the approval granted. Though the petitioner approached the Government by filing a revision, Ext.P7 order was passed rejecting the same, without considering the specific contention that there was no protected HSA (Malayalam) available on 4.6.2007 in the Revenue District. 4. The learned counsel for the petitioner submits that the cancellation of the approval granted to the petitioner was completely untenable especially in view of the fact that there was no protected HSA (Malayalam) available in the Revenue District for appointment against the regular vacancy. It is submitted that Ext.P8 reply given by the Deputy Director of Education, Ernakulam would clearly show that there was no such protected hand available as on 4.6.2007. It is submitted by the learned counsel for the petitioner that even if such a protected hand was available, in the absence of a specific contention that a list of such protected teachers had been made available by the Deputy Director of WP(C).No.11250 OF 2015(E) -: 4 :- Education to the Manager, the appointment of the petitioner could not be assailed on those grounds. The learned counsel for the petitioner also submits that the approval cannot be cancelled on the basis of an audit objection. 5. Counter affidavits have been placed on record by the 4[th] respondent as well as the 1[st] respondent. It is submitted in the counter affidavit filed by the 4[th] respondent at paragraphs 5 and 6 as follows :- “5. It is the Deputy Director of Education, who conducted audit and found the objections as referred in Exhibit P4. Exhibit P6, P7 & P9 were made by the competent authorities on the basis of Exhibit P4. 6. Now the Deputy Director of Education, Ernakulam as per Exhibit P8 had informed that there were no protected teachers as on 04.06.2007.” 6. The counter affidavit filed by the 1[st] respondent seeks to justify the orders passed in revision. It is stated that the Public Information Officer, Office of the Deputy Director of Education, Ernakulam has issued Ext.P8 reply stating that there were no undeployed hands available in Aluva Education District as on 4.6.2007. It is stated that staff fixation orders are issued on 15.7.2007 and that during 2007-2008, there were two protected teachers available for deployment in Aluva Education District itself. WP(C).No.11250 OF 2015(E) -: 5 :- It is stated that the Manager had appointed the petitioner overlooking government directions and therefore, the appointment is liable to be cancelled. 7. A reply affidavit has been placed on record by the petitioner stating that the two teachers referred to in the counter affidavit had already been deployed in the academic year 20072008 itself. 8. The learned counsel for the petitioner placed reliance on a decision of a Division Bench of this Court in **State of Kerala and others** v. **S. Haseena and another** [2013 (2) KLT 88]. The Division Bench, after considering the statutory provisions and the Government Orders, had specifically held that it was only by circular dated 19.11.2009 that the requirement that Managers are obliged to seek a list of undeployed protected teachers from the Deputy Directors before making appointments had come into effect. It was clearly held that with regard to vacancies arising before the date of the circular, the specific requirement of law was that the Deputy Director of Education should make available a list of protected teachers available for appointment to the Manager and in the absence of such list being provided by the Deputy Director of Education, the appointments made by the Managers could not be called into question. WP(C).No.11250 OF 2015(E) -: 6 :- 9. Having considered the contentions advanced and having gone through the pleadings, I am of the opinion that in the absence of a specific contention that a list of undeployed protected teachers had been made available to the Manager by the Deputy Director of Education before making the appointment of the petitioner on 4.6.2007, the impugned orders cannot be sustained. The Deputy Director appears to have taken a consistent stand that there were no protected teachers available for deployment in the Revenue District during the period in question. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition are liable to be granted. The impugned orders are set aside. The petitioner shall be entitled to all benefits of approval of appointment granted to her on the basis of Ext.P3 appointment order. The monetary benefits, if any, due to the petitioner shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** Jvt/5.10.2020 WP(C).No.11250 OF 2015(E) -: 7 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 EXT.P-1: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1.9.1999 ISSUED BY THE 5TH RESPONDENT AND APPROVED DATED 3.1.2000 BY THE 4TH RESPONDENT** - **EXHIBIT P2 EXT.P-2: COPY OF APPOINTMENT ORDER OF THE PETITIONER DATED 21.6.2004 ISSUED BY THE 5TH RESPONDENT AND APPROVED DATED 23.9.2006 BY THE 4TH RESPONDENT** - **EXHIBIT P3 EXT.P-3: COPY OF APPOINTMENT ORDER OF THE PETITIONER DATED 4.6.2007 ISSUED BY THE 5TH RESPONDENT AND APPROVED DATED 30.11.2007 BY THE 4TH RESPONDENT** - **EXHIBIT P4 EXT.P-4: COPY OF LETTER NO.8 B6-2019/11 DATED 13.6.2011 ISSUED BY THE 4TH RESPONDENT ALONG WITH RELEVANT EXTRACT OF AUDIT OBJECTION** - **EXHIBIT P5 EXT.P-5: COPY OF REPLY TO THE AUDIT OBJECTION VIDE NO.OA/1754 20111 DATED 3.2.2011 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT** - **EXHIBIT P6 EXT.P-6: COPY OF ORDER NO.EC(4)/62410/12/DPI.K.DIS. DATED 30.8.2013 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P7 EXT.P-7: COPY OF ORDER NO.G.O(RT) NO.4945/2014/G.EDN DATED 12.11.2014 ISSUED BY THE IST RESPONDENT** - **EXHIBIT P8 EXT.P-8: COPY OF QUESTIONNAIRE DATED 10.11.2014 AND REPLY DATED 22.12.2014 VIDE NO.A4/22127/14 ISSUED BY THE OFFICE OF THE 3RD RESPONDENT** - **EXHIBIT P9 EXT.P-9: COPY OF LETTER NO.EC(4)/74385/2013/DPI DATED 4.2.2015 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P10 EXT.P-10: COPY OF LETTER NO.B5/6019/12 DATED 19.3.2015 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE ORDER NO.12953/07/B4 DATED 27.10.2007** WP(C).No.11250 OF 2015(E) -: 8 :- **EXHIBIT P12 TRUE COPY OF THE ORDER NO. B2/9697/07/D DIS DATED 07.11.2007, ALONG WITH TYPED COPY.** ## **RESPONDENT'S/S EXHIBITS: NIL** //TRUE COPY// P.A. TO JUDGE