Smitha Peter v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938** ## **WP(C).No. 25933 of 2016 (N)** **----------------------------** **PETITIONER(S): ----------------------** **SMITHA PETER, AGED 36, W/O. KURIEN ABRAHAM, HIGH SCHOOL ASSISTANT [PS], ST. JOHNS HIGH SCHOOL, ELANAD, VENNUR P.O., TRICHUR -680 587.** **BY ADV. SRI.M.A.FAYAZ.** - **RESPONDENT(S): --------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM- 695 001.** **3. DEPUTY DIRECTOR OF EDUCATION, THRISSUR- 680 001.** **4. DISTRICT EDUCATIONAL OFFICER, THRISSUR- 680 001.** **5. CORPORATE MANAGER, CATHOLIC DIOCESE OF MUVATTUPUZHA, MUVATTUPUZHA- 683 541.** **R1 TO R4 BY GOVT. PLEADER SMT.NISHA BOSE.** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 25933 of 2016 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1. COPY OF THE APPOINTMENT ORDER OF THE 5TH RESPONDENT DATED 03.11.2012.** - **EXHIBIT P2. COPY OF THE PROCEEDINGS TRANSFERRING SMT. RESSY ALEX AS H.S.A [PS] TO ST.JOHNS HIGH SCHOOL, PIRAVOM DATED 29.10.2012.** - **EXHIBIT P3. COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 23.03.2013.** - **EXHIBIT P4. COPY OF THE APPEAL SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P5. COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 04.09.2013.** - **EXHIBIT P6. COPY OF THE REVISION PETITION BEFORE THE 2ND RESPONDENT FILED BY 5TH RESPONDENT.** - **EXHIBIT P7. COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 23.05.2015.** - **EXHIBIT P8. COPY OF THE ORDER OF 4TH RESPONDENT DATED 14.10.2015.** - **EXHIBIT P9. COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 07.07.2016.** - **EXHIBIT P10. COPY OF CERTIFICATE ISSUED BY THE HEADMASTER OF ST. JOSEPH'S HIGH SCHOOL.** - **EXHIBIT P11. COPY OF STAFF FIXATION ORDER DATED 13.04.2016.** - **EXHIBIT P12. COPY OF JUDGMENT IN W.A. NO.1859/2006 DATED 18.10.2006. EXHIBIT P13. COPY OF JUDGMENT IN 2008 [2] KLT 771 [SC] OF THE APEX COURT DATED 08.05.2008.** - **EXHIBIT P14. COPY OF G.O[RT] NO.1427/2011/G.EDN DATED 08.04.2011.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **P.V.ASHA, J.** ----------------------------------------------------- ## W.P(C) No.25933 of 2016-N ---------------------------------------------------Dated this the 4[th] day of July, 2016 ## **JUDGMENT** Heard Sri. M.A. Fayaz, the learned counsel for the petitioner and Smt. Nisha Bose, the learned Senior Government Pleader. 2. Grievance of the petitioner is in denying approval to her appointment as HSA (Physical Science) with effect from 08.11.2012. 3. As per Ext.P1 order, the petitioner was appointed under the corporate management of the 5[th] respondent, as H.S.A (Physical Science) in St.Johns High School, Elanad, w.e.f 8.11.2012 against a vacancy which arose on transfer of Smt.Ressi Alex, H.S.A (Physical Science). As per Ext.P2 order dated 29.10.2012, Smt.Ressi Alex was transferred and posted to St.Johns High School, Piravom. As per Ext.P3 order dated 23.03.2013, the District Educational Officer (D.E.O), Chavakkad, declined approval to the appointment of the petitioner on the ground that the Manager did not produce the order approving W.P(C) No.25933 of 2016-N 2 transfer of Smt.Ressi Alex and did not furnish the undertaking as required in circular No.49982/J2/2012/G.Edn. dt.10.09.2012. 4. Thereupon the Manager preferred Ext.P4 appeal before the Deputy Director of Education, Thrissur (DDE), producing the order approving the transfer of Smt.Ressy Alex and the copy of the undertaking furnished by the Manager, before the D.E.O. But the appeal was rejected by Ext.P5 order dated 04.09.2013 on the ground that, the request of the Manager was for approval of appointment of the petitioner in the scale of pay even for the period from 8.11.2012 to 31.3.2013. At the same time, the DDE found that the reasons by which approval was declined by the D.E.O did not survive. DDE also found that petitioner's appointment was liable to be approved on daily wages for the period from 08.11.2012 to 31.03.2013 and thereafter on scale of pay from 1.6.2013, as per G.O(P) No.56/2011/G.Edn dated 26.02.2011. However it was ordered that the appeal cannot be entertained, since the Manager's request was for approval of appointment of the petitioner on scale of pay for the period from 8.11.12 and since G.O(P) No.56/2011/G.Edn dated 26.2.2011 was already cancelled by the Government as per G.O(P) No.144/2012/G.Edn. dated 22.4.2013 3 W.P(C) No.25933 of 2016-N with effect from the date of that order. 5. The Manager thereafter approached the Director of Public Instructions (DPI) submitting Ext.P6 revision petition, requesting for directions to approve the appointment for the period from 08.11.2012 to 31.03.2013 on daily wages and from 01.06.2013 onwards on scale of pay. The DPI rejected the petition as per Ext.P7 issued on 23.05.2013, on the ground that the Government have not taken a final decision on the question of approval with respect to appointments which do not cover the entire academic year. It was further stated that, this Court has in the judgment dated 15.01.2015 in W.P.(C) No.30107/2013, set aside the G.O.(P) No.199/2011 dated 01.10.2011 and all the consequential orders and there are no instructions from the Government regarding the approval of appointments made after 01.10.2011, and the Writ Appeals filed against the judgment was pending. Therefore the request for approval of the petitioner's appointment made from 08.11.2012 was rejected. 6. The petitioner submits that the Manager resubmitted the proposal for approval to the D.E.O, seeing that the Government had issued G.O(P)No.29/2016/G.Edn. dated 29.01.2016, in tune with the direction of this Court in a batch of W.P(C) No.25933 of 2016-N 4 writ petitions. But by Ext.P9 order dated 7.7.2016, the D.E.O Chavakkad again rejected the proposal on the ground that there was no sanctioned post of H.S.A (Physical Science) in the School for appointing the petitioner, at the relevant time. It is stated that, as per the staff fixation proceedings for the year 2012-13, there were only 7 divisions and 7 posts, sanctioning 2 posts each for Physical Science, Natural Science and Mathematics and 1 post each for Social Science and English. D.E.O found that there were 2 H.S.As in Social Science in the School, as per the staff list furnished as on 8.11.2012; since 7 teachers were already working in 7 sanctioned posts, there was no post for the petitioner and accordingly rejected the proposal. It is this order Ext.P9, which is under challenge in this writ petition. 7. The petitioner points out that her appointment was as H.S.A (Physical Science) and that the D.E.O has found out a new reason to decline approval. The petitioner has produced Ext.P11 staff fixation proceedings in respect of St. Johns School, Elanad, according to which, there are 7 posts sanctioned for the High School for the academic year 2012-13 with 2 divisions each for Stds.VIII and IX and 3 divisions for Std.X. The appendix to Ext.P11 staff fixation proceedings would also indicate that there W.P(C) No.25933 of 2016-N 5 was no reduction to the number of sanctioned posts in Physical Science in the year 2012-13 and the the number of sanctioned posts for that subject continues to be the same, i.e 2 since the year 2010-11 to 2015.16, whereas the number of posts sanctioned for Social Science was reduced to 1 for the year 2012-13 and 2013-14. In Ext.P9 the D.E.O also admits that 2 posts are available for Physical science and reduction of post was in Social Science. The petitioner points out that approval was declined in blatant violation of the orders and precedents on the subject, which insist for following the subject ratio, subject requirement and qualification of teachers, according to which, there should have been one more Physical Science hand in the School on transfer of Smt.Ressi Alex, as there was only one teacher in Physical Science thereafter. Ext.P10 order shows that the transferred teacher is getting salary. While issuing the order Ext.P9, the D.E.O has only looked into the number of teachers in the school as on 08.11.2012. The rejection of approval is not for the reason that there is no post in Physical Science, but on the ground that there are already 7 teachers. 8. As rightly argued by Sri.Fayaz, as per the orders of the Government and DPI on staff fixation as well as Ext.P12 W.P(C) No.25933 of 2016-N 6 judgment - **Rakhee v. State of Kerala** [2007 (1) KLT 766] and the judgment of the Apex Court in **Deepa Augustine v. Geetha Alex** [2008 (2) KLT 771 (SC)], it is well settled that there should be sufficient number of qualified teachers in accordance with the subject requirement and subject ratio, which is the criteria for retrenchment as well as promotion of teachers. But the D.E.O, while declining the approval, has not considered any of these aspects. 9. The orders Exts.P3, P5, P7, P8 and P9 would show that the educational authorities upto DPI have already considered the case of the petitioner for approval and the petitioner suffered rejection in the 1[st] round from each of the authorities on different and distinct grounds. It is seen that the D.E.O has not considered the relevant factors while passing Ext.P9 order. Therefore, I am of the view that instead of relegating the petitioner to statutory remedies again, the D.E.O himself should be directed to reconsider the matter in accordance with law, after hearing the affected parties. In the above circumstances, I quash Ext.P9 order and direct the D.E.O, Chavakkad to re-consider the issue and pass fresh orders on the proposal for approval of Ext.P1 order of W.P(C) No.25933 of 2016-N 7 appointment of the petitioner in accordance with law, after affording an opportunity of hearing to the petitioner, the Manager-the 5[th] respondent, and affected parties if any, within a period of two months from the date of receipt of a copy of this judgment. Since the proposal for approval is seen returned, the Manager shall re-submit the proposal for approval to the D.E.O, within one week from the date of receipt of a copy of this judgment. The D.E.O shall communicate the orders to the petitioner and the Manager, as directed. The Writ Petition is disposed of accordingly. Sd/- **(P.V.ASHA, JUDGE)** rtr/