Smt. Sheeba Kumar B and Bini M v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 12[TH]DAY OF OCTOBER 2022 / 20TH ASWINA,1944 ``` ``` WP(C) NO. 25867 OF 2021 ``` ## `PETITIONER/S:` ``` 1SHEEBA KUMAR B AGED 48 YEARS, HSA (NS) W/O.SHAJ.P.A, SANGEERTHANAM, SUDHEESH ROAD, P.O.NIRMALAGIRI, KANNUR-670701. 2BINI.M, AGED 37 YEARS UPST, KUTHUPARAMBA HIGH SCHOOL, KUTHUPARAMBA POST, KANNUR DISTRICT-670643. BY ADVS. POOVAMULLE PARAMBIL ABDULKAREEM K.N.KUMARASWAMY SARMA ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-670002. 4THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICE, THALASSERY, KANNUR DISTRICT-670101. 5THE MANAGER, KUTHUPARAMBA HIGH SCHOOL, KUTHUPARAMBA POST, KANNUR DISTRICT-670643. ``` 2 W.P. (C) No.25867 of 2021 ``` SMT.ANIMA M, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P. (C) No.25867 of 2021 ## **JUDGMENT** The petitioners have approached this Court being aggrieved by the denial of approval of their appointments on the ground that the Manager has not executed a bond in terms of G.O.(P) No. 10/10/G.Edn. dated 12.1.2010. 2. According to the 1st petitioner, she was appointed as a UPSA in an LWA vacancy that arose in the Kuthuparamba High School for the period from 29.1.2001 to 26.3.2001. Later, she was appointed as UPSA from 6.6.2001 onwards in the promotion vacancy of Sri. K. Chandran. The appointment made as above continued up to 31.5.2009, and the same stands approved by orders issued by the 4th respondent. Being a Rule 43 claimant, the 1st petitioner was promoted to the post of HSA (Natural Science), a newly created post, with effect from 1.6.2009 onwards on the strength of Ext.P1 order. However, approval was rejected in view of the economic ban imposed by the Government. It is contended that the 1st petitioner was later shifted to the vacancy of a certain Smt. U.K.Vimala, HSA (NS), who retired on 31.3.2010, and her appointment was with effect from 1.6.2010 onwards. The said appointment stands approved as per Ext.P3 order. However, in spite of the fact that the economic ban was lifted by issuing G.O.(P) No. 10/10, approval has not been granted for the 4 W.P. (C) No.25867 of 2021 reason that the Manager has not executed the bond. It is submitted that the 1st petitioner approached this Court and pursuant to the directions issued by this Court in Ext.P7 judgment, the 1st respondent considered the revision petition and by Ext.P8 order, the petition stands rejected on the ground that the petitions filed by the Managers before the Apex Court challenging the Government order is pending and orders can be issued only after the disposal of the said matter. According to the petitioners, the order issued by the 1st respondent cannot be sustained in the light of the law laid down by this Court in various judgments, which include Ext.P5. 3. It is contended that the 2nd petitioner was appointed in the vacancy which arose when the 1st petitioner was promoted to HSA (Natural Science). It is further contended that the approval of the appointment of the 2nd petitioner was rejected due to the ban imposed by the Government. It is further contended that approval was granted insofar as the 2nd petitioner is concerned with effect from 1.6.2011 onwards. Though the 2nd petitioner preferred an appeal seeking approval of her appointment with effect from the initial date, the same was rejected by the 2nd respondent by Ext.P11 order. Challenging the said order, the 2nd petitioner is stated to have preferred Ext.P12 revision petition before the 1st respondent, which is stated to be pending. 4. Sri.P.P.Abdul Kareem, the learned counsel, submitted that the 5 W.P. (C) No.25867 of 2021 Government had, as per G.O.(P) No.317/2005/G.Edn. dated 17.8.2005, imposed a ban on the appointment of teachers and non-teaching staff in additional division vacancies. Later, by G.O.(P) No.10/10/G.Edn. dated 12.01.2010, the ban on appointments was lifted subject to certain conditions. One of the conditions was that the Managers should execute a consent letter undertaking that in future vacancies, protected teachers equal to the number of teachers appointed to the additional division vacancies during the period 2006-07 to 2009-10 would be appointed. Thereafter, the Government issued G.O.(P)No.199/2011/G.Edn dated 01.06.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. According to the petitioners, similarly placed teachers had approached this Court, and by various judgments, this Court had directed the respondents to approve the appointment from the date of appointment by deeming that the manager had executed the bond. It is further submitted that the revision petition filed by the 1st petitioner was rejected by Ext.P8 order on the sole ground that the managers have preferred a petition before the Apex Court challenging the orders passed by this Court upholding G.O.(P) No.10/10 and according to the learned counsel, the said reason cannot be sustained under law in view of Ext.P5 and various other judgments. It is further submitted that the revision petition filed by the 6 W.P. (C) No.25867 of 2021 2nd petitioner and pending before the 1st respondent is also liable to be considered by deeming that the Managers have executed the bond. 5. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 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. 6. I have considered the submissions advanced. The appointment of the 1st petitioner was approved only with effect from 01.06.2010 on the ground that there was a ban on appointments 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. A Division Bench of this Court in **State of Kerala and Ors. v. V.S.Suma Devi and Ors** . [judgment dated 01.08.2017 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 7 W.P. (C) No.25867 of 2021 are approved. Insofar as the pendency of the petitions instituted by the Managers before the Hon’ble Apex Court is concerned, the orders passed shall be subject to the final orders that may be passed by the Apex Court in the pending litigation. 7. In that view of the matter, Ext.P8 order issued by the 1st respondent cannot be sustained under law. Necessary directions can be issued to reconsider Ext.P6 revision petition filed by the 1st petitioner and to consider Ext.P12 revision petition filed by the 2nd petitioner and pass orders in accordance with law. Resultantly, this writ petition is disposed of by issuing the following directions. a) Ext.P8 order will stand quashed. b) The 1st respondent is directed to reconsider Exts.P6 revision petition filed by the 1st petitioner and P12 revision petition filed by the 2nd petitioner with notice to the concerned petitioners and the 5th respondent and take a decision, taking note of the law laid down by this Court in **Suma Devi** (supra). Orders shall be passed expeditiously, in any event, within a period of four months from the date of receipt of a copy of this judgment. While considering the revision petitions, the Secretary to Government shall be free 8 W.P. (C) No.25867 of 2021 to reckon, if all conditions are satisfied, 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. It is made clear that the orders passed by the 1st respondent shall be subject to the final orders passed by the Apex Court in the pending petitions. c) It would be open to the petitioners to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. The writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru 9 W.P. (C) No.25867 of 2021 ## `APPENDIX OF WP(C) 25867/2021` |`PETITIONER’S EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE APPOINTMENT ORDER DATED`| ||`01/06/2009 ISSUED BY THE 5TH RESPONDENT.`| |`Exhibit P2`|`TRUE COPY OF THE ORDER NO.K.DIS/B6/4413. DATED`| ||`28/06/2010 ISSUED BY THE 4TH RESPONDENT.`| |`Exhibit P3`|`TRUE COPY OF THE APPOINTMENT ORDER DATED`| ||`01/06/2020 ISSUED BY THE 5TH RESPONDENT WITH`| ||`APPROVAL.`| |`Exhibit P4`|`TRUE COPY OF THE STAFF FIXATION ORDER`| ||`B6/5424/09/D.DIS DATED 11/01/2020 FOR THE YEAR`| ||`2009-10 ISSUED BY THE 4TH RESPONDENT.`| |`Exhibit P5`|`TRUE COPY OF THE JUDGMENT DATED 10/06/2015 IN`| ||`WP(C)NO.16555/2013 PASSED BY THIS HON'BLE`| ||`COURT.`| |`Exhibit P6`|`TRUE COPY OF THE REVISION PETITION DATED`| ||`12/8/2020 THUS SUBMITTED BY THE PETITIONER`| ||`BEFORE THE 1ST RESPONDENT.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT DATED 20/01/2021 IN`| ||`WP(C)NO.1562/2021 ISSUED BY THIS HON'BLE COURT.`| |`Exhibit P8`|`TRUE COPY OF THE G.O(RT)NO.3885/2021/G.EDN.`| ||`DATED 02/09/2021 ISSUED BY THE 1ST RESPONDENT.`| |`Exhibit P9`|`TRUE COPY OF THE APPOINTMENT ORDER DATED`| ||`01/06/2009 ISSUED BY THE 5TH RESPONDENT.`| |`Exhibit P10`|`TRUE COPY OF THE APPEAL PETITION DATED`| ||`22/03/2016 SUBMITTED BY THE 2ND PETITIONER.`| |`Exhibit P11`|`TRUE COPY OF THE ORDER`| ||`NO.RA(3)/16700/2016/DPI/K.DIS.DATED 22/06/2017`| ||`ISSUED BY THE 2ND RESPONDENT.`| W.P. (C) No.25867 of 2021 10 ``` Exhibit P12TRUE COPY OF THE REVISION PETITION DATED 21/1/2021 SUBMITTED BY THE 2ND PETITIONER. ``` ``` RESPONDENTS EXHIBITS : NIL ```