High Court of KeralaSingle JudgeThe writ petition is disposed of.

SMITHA V. AGED 44 YEARS W/O. KRISHNAKUMAR, UPSA, ASMM HIGHER SECONDARY SCHOOL, ALATHUR v. STATE OF KERALA AND OTHERS

Case / Petition Number:WP(C) NO. 11253 OF 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • RAJA VIJAYARAGHAVAN V T
Judgment Date
2021-10-05
Court Decision / Holding
Ext.P8 order will stand set aside. There will be a direction to the 1st respondent to reconsider the revision petition filed by the petitioner and pass fresh orders with notice to the petitioner as well as the 5th respondent and take a decision, bearing in mind that managers would be deemed to have executed the bond and that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. It would be open to the petitioner to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. The orders shall be passed expeditiously, within three months from the date of receipt of a copy of this judgment.
Final Disposition
The writ petition is disposed of.

Parties to the Case

Appellants / Petitioners

  • SMITHA V.

Respondents

  • State of Kerala
  • The Director of Education, Secretariat, Thiruvananthapuram
  • The Deputy Director of Education, Civil Station, Kenathup- arambu, MKunathurmedu, Palakkad
  • District Educational Officer, Municipal Complex, Robinson Rd, Suth nagar, Palakkad
  • The District Educational Officer (Manager-in-Charge), ASMM Higher Secondary School, Alathur
  • District Educational Officer, Aluva, Ernakulam Dist.

Legal Representation & Advocates

Counsels for Petitioners

  • • K. MOHANAKANNAN
  • • SMT.T.V. NEEMA

Counsels for Respondents

  • • SRI BIJOY CHANDRAN, SR. GOVERNMENT PLEADER

Case Synopsis & Summary

Smitha v. State of Kerala and others concerns a writ petition challenging Ext.P8, which rejected the petitioner’s claim for approval of her appointment as UPST (Untrained Primary School Teacher) from the initial date of appointment at ASMM Higher Secondary School, Alathur. The petitioner contends she was appointed as UPSA from 15.01.2010 in a newly created post; the DEO approved her appointment from 01.06.2011 by including her in the Teachers Package. She seeks approval from the initial date and consequential benefits. The court earlier directed consideration in light of the law in W.A.No.2290/2015 (Ext.P3) and W.P.(C).No.412/2018. Respondents submit that the matter is pending before the Supreme Court and that the appointment was in an additional division vacancy; they argue that bonds must be executed per G.O.(P)10/10/2010 and that appointments should be apportioned 1:1. The petitioner relies on this Court’s decisions, particularly State of Kerala v. V.S. Suma Devi (WA 2111/2015) to assert that bonds may be deemed executed and protection must be extended to equal appointments. The High Court agrees that the sole ground of passing Ext.P8—pendency before the Apex Court—cannot deny relief. Ext.P8 is set aside, and the 1st respondent is directed to reconsider the revision petition and pass fresh orders within three months, bearing in mind that managers would be deemed to have executed bonds and would be obliged to make appointments from the protected teachers list equal to the number of appointments approved during the ban period. The petitioner is permitted to produce copies of the writ petition and judgment for further action. The petition is disposed of.

Provisions of Law Cited

G.O.(P) No.10/10/G.Edn. dated 12-1-2010G.O.(P) 954/2020/G.EDN dated 25-2-2020G.O.(RT) 5475/18/G.EDN dated 29-12-2018GO(RT) NO 2565/2018/G.EDN dated 9-7-2018W.A.No.2111/2015W.A.No.2290/2015W.P.(C).No.412/2018

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that even where bonds were not executed, managers may be deemed to have executed bonds and thus are obliged to appoint from the list of protected teachers equal in number to the appointments approved during the ban period, relying on the principle laid down in Suma Devi (WA 2111/2015) and Ext.P3 judgment. She contends Ext.P9 approving other teachers and Ext.P10 confirming similar relief to a comparable case show denial of relief to be unjustified. It was argued that pendency before the Supreme Court cannot bar relief and that Ext.P8 cannot be sustained; the petitioner seeks quashing Ext.P8 and a direction to grant approval from the initial date of appointment with consequential benefits.

Contentions of Respondents

The Government Pleader contends that appointments in additional division vacancies must be apportioned 1:1, and where a manager has not executed a bond as per G.O.(P) 10/10/2010, the Manager should have executed such bond; several managers have challenged G.O.(P) 10/10 before the Supreme Court, hence the request was denied; the matter is pending before the Apex Court; the petition for relief is argued to be unmerited given these proceedings.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
State of Kerala and Ors. v. V.S. Suma Devi and OrsW.A.No.2111/2015PositiveCourt relied on the ratio from Suma Devi (WA 2111/2015) to deem bonds executed and require managers to facilitate appointments from the protected list.
W.A.No.2290/2015W.A.No.2290/2015PositiveJudgment dated 25.07.2017 in W.A.No.2290/2015 is cited as law laid down to be applied in the present case.
W.P.(C).No.412/2018W.P.(C).No.412/2018Mentioned OnlyBackground reference to earlier petition; cited to show prior directives but not as binding ratio in the present decision.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against SMITHA V. AGED 44 YEARS W/O. KRISHNAKUMAR, UPSA, ASMM HIGHER SECONDARY SCHOOL, ALATHUR v. STATE OF KERALA AND OTHERS and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) NO. 11253 OF 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** **WP(C) NO. 11253 OF 2020** ## **PETITIONER:** SMITHA V. AGED 44 YEARS W/O. KRISHNAKUMAR, UPSA, ASMM HIGHER SECONDARY SCHOOL, ALATHUR, RESIDING AT DEVI NANDANAM, BEHIND ASMM HIGH SCHOOL ALATHUR P.O, PALAKKAD DISTRICT BY ADVS. K.MOHANAKANNAN SMT.T.V.NEEMA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE DIRECTOR OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001 3 DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KENATHUPARAMBU,M KUNATHURMEDU, PALAKKAD 678 001 4 DISTRICT EDUCATIONAL OFFICER, MUNICIPAL COMPLEX, ROBINSON RD, OPP. GOVERNMENT HOSPITAL, SANTHI NAGAR, SULTANPET, PALAKKAD, KERALA 678 014 5 THE DISTRICT EDUCATIONAL OFFICER, (MANAGER-INCHARGE), PALAKKAD, ASMM HIGHER SECONDARY SCHOOL, ALATHUR, PALAKKAD 678 642 **WP(C) NO. 11253 OF 2020** **2** 6 DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM DISTRICT 683101 SRI BIJOY CHANDRAN SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 11253 OF 2020** **3** ## **JUDGMENT** Challenge in this petition is mounted against Ext.P8 order passed by the 1st respondent rejecting the claim of the petitioner for approval of appointment as UPST from the initial date of appointment in the ASMM Higher Secondary School, Alathur. 2. The petitioner states that she was appointed as UPSA in ASMM Higher Secondary School, Alathur with effect from 15.01.2010 in a newly created post as is evident from Ext.P1. The appointment of the petitioner was approved by the DEO with effect from 01.06.2011 by including her in the Teachers Package. Being aggrieved by the refusal on the part of the respondents in approving the appointment from the initial date of appointment, the petitioner along with other teachers had approached this Court and filed W.P.(C).No.412/2018. This Court by Ext.P2 judgment disposed of the matter directing the respondents to consider the issue in the light of the law laid down in judgment dated 25.07.2017 in W.A.No.2290/2015. The petitioner contends that pursuant to directions as aforesaid the 1st respondent considered the representation and the request of the petitioner was rejected on the sole ground that the matter is now pending consideration of the Hon’ble Supreme Court of India. The petitioner contends that the stand taken by the respondents cannot be sustained as by Exts.P5 and P6 orders teachers similarly placed as **WP(C) NO. 11253 OF 2020** **4** the petitioner was given the benefit of the law laid down by this Court in Ext.P3 judgment. 3. The petitioner contends that Ext.P4 was challenged before this Court and pursuant to directions issued in W.P.(C) No.5135/2019, the matter was reconsidered by the Government. However, by Ext.P8 order the request was again rejected holding that the appointment of the petitioner though in an additional division vacancy, as the Managers have challenged the judgment rendered by this Court before the Apex Court, the petitioner is not entitled to approval of her appointment from the initial date of her appointment. 4. The petitioner contends that in compliance with the direction issued by the Division Bench in Ext.P3 judgment, the Government has granted approval to 9 teachers by Ext.P9 proceedings and that by Ext.P10 proceeding, Smt.Deepa.N.K another teacher similarly placed as the petitioner was granted approval. It is in the afore circumstances that the petitioner is before this Court seeking to quash Ext.P8 and for a further direction to the 4th respondent to approve the appointment of the petitioner as UPST with effect from 15.01.2010 to 30.05.2011 and grant all consequential benefits. 5. A counter affidavit has been filed by the 4th respondent reiterating that the appointment of the petitioner was against an additional post and that the matter is pending consideration of the Hon’ble Supreme Court of India **WP(C) NO. 11253 OF 2020** **5** orders could not be passed approving the appointment. It is also stated that it is due to the appointment dispute of the teachers in the school that the seniority list has not been finalised. It is also stated that due to the management dispute in the Alathur ASMM HS, the respondent is the Manager in charge of the School. 6. A reply affidavit has been filed wherein it is stated that the mere fact that an SLP has been filed against the judgment is no reason to deny the benefits to which the petitioner is entitled. It is also submitted that no stay has been granted by the Hon’ble Supreme Court. It is also stated that in view of Ext.P9 approving the appointment of teachers, there is no reason to deny the very same relief to the petitioner. 7. Sri. K.Mohanankannan, the learned counsel appearing for the petitioner submitted that it is settled by now that even in cases wherein, bonds have not been executed by the Manager, the Managers would be deemed to have executed the bond and they would be obliged to make appointments from the list of protected teachers, equal to the number of appointments approved during the ban period. The learned counsel points out that the law laid down by this Court has not been taken note of while passing Ext.P10 order. 8. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 **WP(C) NO. 11253 OF 2020** **6** and if the appointment of the protected teacher is not done as provided in G.O. (P) No.10/10/G.Edn. dated 12.1.2010, then the Manager ought to have executed a bond stating that such appointments would be made in accordance with the provisions of the Government Order. It is further submitted that some of the Managers have challenged G.O.(P) No.10/10/G.Edn. dated 12.1.2010 and those matters are now pending before the Apex Court and it is for the said reason that the request was rejected. 9. I have considered the submissions advanced. 10. The writ petitioner was appointed during the period when the ban, pursuant to G.O.(P) No.10/10/G.Edn. Dated 12.1.2010, was in force. The appointment of the petitioner was approved only with effect from 1.6.2011 on the ground that there was a ban on appointment at the time of her initial appointment and that the Manager had failed to execute the bond in terms of G.O.(P)No.10/10. The writ petition is filed seeking approval of the petitioner’s appointment with effect from the date of her initial appointment and payment of consequential benefits due to her . A Division Bench of this Court in **State of Kerala and Ors. v. V.S.Suma Devi and Ors** . [judgment dated 1.8.2017 in W.A.No.2111/2015], has held that in the case of non-execution of the bond by the Managers, it should be deemed that bonds have been executed and the Managers would be obliged to make an equal number of appointments when the appointments to additional vacancies made during the ban period are **WP(C) NO. 11253 OF 2020** **7** approved. A mere perusal of the impugned order would show that the solitary reason given to deny the benefit to the petitioner is that the Managers have challenged the judgment of the Division Bench before the Apex Court and that the said proceeding is pending. I am of the considered opinion that the aforesaid reason cannot be a ground to reject the request made by the petitioner. In that view of the matter, interference is warranted in this writ petition. Resultantly, Ext.P8 order will stand set aside. There will be a direction to the 1st respondent to reconsider the revision petition filed by the petitioner and pass fresh orders with notice to the petitioner as well as the 5th respondent and take a decision, taking note of the law laid down by this Court in **Suma Devi** (supra) and also in Exhibit P3 judgment. Orders shall be passed expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. While considering the revision petition, the Secretary to Government shall bear in mind that the Managers would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. The fact that the petition challenging G.O.(P) No.10/10 filed by the Managers is pending consideration of the Hon’ble Supreme Court shall not be taken as a ground to deny the benefits to the petitioner. It would be open to the petitioner to produce a copy of the **WP(C) NO. 11253 OF 2020** **8** writ petition along with the judgment before the concerned respondent for further action. The writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 11253 OF 2020** **9** ## **APPENDIX OF WP(C) 11253/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE ORDER OF APPOINTMENT 15-| |---|---| ||1-2010 OF THE PETITIONER| |EXHIBIT P2|TRUE COPY OF THE JUDGMENT IN W.P(C) NO.| ||412/2018 DATED 23-1-2018| |EXHIBIT P3|THE JUDGMENT IN W.A 2290/2015 DATED 25-07-| ||2017| |EXHIBIT P4|TRUE COPY OF THE GOVERNMENT ORDER GO(RT)| ||5475/18/G.EDN DATED 29-12-2018| |EXHIBIT P5|TRUE COPY OF ORDER NO. B2/1729/2015 DATED| ||7-12-2018 OF THE DISTRICT EDUCATIONAL| ||OFFICER, PALAKKAD| |EXHIBIT P6|TRUE COPY OF ORDER NO. B2/591/18 DATED 12-| ||4-2019| |EXHIBIT P7|TRUE COPY OF THE ARGUMENT NOTE SUBMITTED| ||BY THE PETITIONER ON 20-08-2019| |EXHIBIT P8|TRUE COPY OF THE GOVERNMENT ORDER GO(P)| ||954/2020 /G.EDN DATED 25-2-2020| |EXHIBIT P9|TRUE COPY OF THE GO(RT) NO 2565/2018/G.EDN| ||DATED 9-7-2018| |EXHIBIT P10|TRUE COPY OF THE GOVERNMENT LETTER DATED| ||25-7-2018 ADDRESSED TO THE 6TH RESPONDENT| //True copy// PA TO JUDGE