High Court of KeralaSingle Judge2021-03-05Writ petition allowed; Exts.P14 and P18 set asi...

Sr. Margaritha M. Joseph v. State of Kerala & Others

Case / Petition Number:WP(C).No.10408 OF 2020(A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-03-05
Court Decision / Holding: Writ petition allowed in part: Exts.P14 and P18 are set aside to the extent they granted daily-wage approvals for the spells 12.06.2006–31.03.2007 and 04.06.2007–31.03.2008 and their rejection of 09.06.2008 is to be reconsidered. The Government is directed to reconsider the petitioner’s spells and the 2008 appointment in light of Sneha Cheriyan (ratio) and the seniority list of the School, affording hearing to the petitioner and the School Manager, and to pass a fresh order expeditiously, but not later than four months from receipt of a copy of this judgment. Ext.P15, consequential to Ext.P14, shall be disregarded during reconsideration.
Final Disposition: Writ petition allowed; Exts.P14 and P18 set aside to the extent granting daily wage approvals for spells 12.06.2006–31.03.2007 and 04.06.2007–31.03.2008 and the rejection of 09.06.2008; Government to reconsider in light of Sneha Cheriyan ratio and school seniority, after hearing, within four months; Ext.P15 to be disregarded during reconsideration.

Parties to the Case

Appellants / Petitioners

Sr. Margaritha M. Joseph

Respondents

State of Kerala represented by Principal Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-695 001
The Director General of Education, Government of Kerala, Jagathy, Thiruvananthapuram-695 014
The Assistant Educational Officer, Arakulam, Arakulam P.O, Idukki-685591
The Assistant Educational Officer, Kuravilangad, Kuravilangad P.O, Kottayam-686 633
The Assistant Educational Officer, Ramapuram, Pala, Kottayam-686 576
The District Educational Officer, Kanjirappally, Kanjirappally P.O, Kottayam-686 507
The District Educational Officer, Thodupuzha, Thodupuzha P.O, Idduki-685 584
The Corporate Educational Agency, Diocese of Pala, Pala P.O, Kottayam-686 575

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Mohanlal

Counsels for Respondents

• Sri. P. M. Manoj

Case Synopsis & Summary

Sr. Margaritha M. Joseph, a Lower Primary School Teacher at St. Mary’s Girls L.P.S., Kuravilangad, Kottayam, impugns several government orders denying substantive approvals for spells of service in the school from 12.06.2006 to 31.03.2007, 04.06.2007 to 31.03.2008, and the rejection of her appointment from 09.06.2008 onwards. The petitioner argues that Exts. P1–P5, P14, P17 and P18 show rejection of spells that were actually spent, whereas her service should be recognized on a substantive scale (not merely daily wage) since she was senior to others in the school. She contends that the bond condition under GO(P) No.10/10/G.Edn dated 12.01.2010, cited to justify non-approval, was not correctly applied, and that post-Sneha Cheriyan jurisprudence requires reconsideration of her claims on the basis of seniority. The respondents submit counter-affidavits noting prior judgments that appointments before 2010 could be approved even if the manager had not submitted certain affidavits and that the 2008 appointment was rightly rejected due to four teachers occupying posts in an additional division. The High Court, acknowledging the Sneha Cheriyan ratio, directs the Government to reconsider the petitioner’s spells and the 2008 appointment in light of seniority, after hearing the petitioner and the manager, and to pass a fresh, reasoned order expeditiously but no later than four months from receipt of the judgment. Ext.P15 shall be disregarded during reconsideration.

Provisions of Law Cited

GO(P) No.10/10/G.Edn dated 12.01.2010GO(Rt) No.3645/2019/G.Edn dated 16.09.2019GO(Rt) No.241/18/G.Edn dated 16.01.2018GO(Rt) No.4828/17/G.Edn dated 16.12.2017

Legal Doctrines & Maxims

Sneha Cheriyan (ratio)
Seniority principle in school appointments and seniority-based placement

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends the challenged Exts. P1–P5, P14, P17 and P18 reflect denial of spells that should have been approved substantively; she seeks approval for spells from 2006–07 to 2009–10 on scale-pay, not daily-wage basis, arguing seniority and the absence of a valid ongoing bond under the GO; she relies on pre-2010 jurisprudence and Sneha Cheriyan to demand reconsideration and a proper order after hearing the petitioner and the Manager. She emphasizes that the 2008 appointment rejection is inconsistent with her senior status and that Ext.P18 corrects a bond-related hurdle, but the overall approach must conform to the ratio in Sneha Cheriyan.

Contentions of Respondents

The respondents argue that approvals were rightly limited to spells where posts existed; the 2006–07 and 2007–08 spells were approved only on daily-wage basis due to the absence of substantive vacancies and the 2008 appointment was rejected because four teachers occupied the two additional posts; reliance is placed on GO(P) No.10/10/G.Edn and subsequent GO orders (GO RT 3645/2019, 2018 decisions) and on prior judgments that pre-2010 appointments could be approved only where conditions were satisfied; they request dismissal of the petition.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Sneha Cheriyan	2013(1)KHC 660	Positive	The ratio from Sneha Cheriyan is applied to require reconsideration and grant of scale-pay approvals where appropriate.
WP(C) Nos.6039/2012; 15998/2015; 3383/2012; 2290/2015	WP(C).6039/2012; WP(C).15998/2015; WP(C).3383/2012; WP(C).2290/2015	Positive	Judgments cited in counter-affidavit support that appointments before 2010 can be approved even if the manager had not submitted the affidavit, influencing the decision.
WP(C) No.21391/2018	WP(C).21391/2018	Positive	Judgment dated 28.06.2018 directed the Government to take appropriate decision on the representation.
CA No. 3490/2016	CA No. 3490/2016	Mentioned Only	Supreme Court judgment cited as related to the issue; not directly applied in the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **WP(C).No.10408 OF 2020(A)** ## **PETITIONER:** **SR. MARGARITHA M.JOSEPH, AGED 40 YEARS, D/O. JOSEPH, LOWER PRIMARY SCHOOL ASSISTANT, ST. MARY'S GIRLS L.P.S, KURAVILANGAD, KOTTAYAM, RESIDING AT CARMELITE CONVENT, KURAVILANGAD, KOTTAYAM-686 580.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR GENERAL OF EDUCATION, GOVERNMENT OF KERALA, JAGATHY, THIRUVANANTHAPURAM-695 014.** - **3 THE ASSISTANT EDUCATIONAL OFFICER, ARAKULAM, ARAKULAM P.O, IDUKKI-685591.** - **4 THE ASSISTANT EDUCATIONAL OFFICER, KURAVILANGAD, KURAVILANGAD P.O, KOTTAYAM-686 633.** - **5 THE ASSISTANT EDUCATIONAL OFFICER, RAMAPURAM, PALA, KOTTAYAM-686 576.** - **6 THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY, KANJIRAPPALLY P.O, KOTTAYAM-686 507.** - **7 THE DISTRICT EDUCATIONAL OFFICER, THODUPUZHA, THODUPUZHA P.O, IDUKKI-685 584.** - **8 THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALA, PALA P.O, KOTTAYAM-686 575.** **BY ADVS.SRI.P.M.MANOJ -SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.10408 OF 2020(A)** **-2-** ## **JUDGMENT** ## **Dated this the 5th day of March 2021** The petitioner says that she is presently working as a Lower Primary School Teacher (LPST) in ‘St.Mary’s Girls L.P.S’, Kottayam, and that she has been constrained to impugn Exts.P1 to P5, P14, P17 and P18 orders of the respondents, since it has rejected her approval for the spells of service served by her in the School from 12.06.2006 to 31.03.2007 and from 04.06.2007 to 31.03.2008 on scale of pay basis; but has approved it only on daily wage basis. 2. The petitioner says that these orders are bad also for the reason that her appointment from 09.06.2008 has been rejected, even though it is expressly recorded therein that she is the senior most teacher in the School. ## **WP(C).No.10408 OF 2020(A)** **-3-** 3. The petitioner, therefore, prays that the impugned orders be set aside and the competent Educational Authorities be directed to grant her approval to the various spells spent by her for the academic years 2006-07, 2007-08, 2008-09 and 2009-10 on substantive basis. 4. In response to the submissions of the petitioner as made by her learned counsel – Sri.B.Mohanlal, the learned Senior Government Pleader – Sri.P.M.Manoj, submitted that a counter affidavit has been placed on record, wherein, the following have been stated: _“3. It is submitted that as per the judgment in WP(C)No.6039/2012, WP(C)No.15998/2015, WP(C)No.3383/2012 and WP(C)2290/2015, it is directed that the appointments before 2010 can be approved even if the Manager had not submitted the affidavit in terms of GO(P)No.10/10/G.Edn dated 12.01.2010. On the basis of the above judgments the appointments of the petitioner as LPSA from 12.06.2006 to 31.03.2007,_ ## **WP(C).No.10408 OF 2020(A)** **-4-** _04.06.2007 to 31.03.2008 and 09.06.2008 onwards can be approved as it is made in the additional division vacancy for the academic year 2006-07. At the same time the validity of the paragraph V and VI of GO(P) No.10/10/G.Edn dated 12.01.2010 is under the consideration of the Honourable Supreme Court in CA No. 3490/2016 and related cases. As per the judgment dated 28.06.2018 in WP(C)No.21391/2018 filed by the petitioner, Government was directed to take appropriate decision on the representation dated 20.12.2017 submitted by the petitioner before the Government. Accordingly Government issued GO(Rt)No.3645/2019/G.Edn dated 16.09.2019 directing the Assistant Educational Officer, Arakulam to approve the appointments of the petitioner from 12.06.2006 to 31.03.2007 and from 04.06.2007 to 31.03.2008 if it is otherwise in order. Also the appointment from 09.06.2008 was rejected._ _4. It is submitted that one additional division each could be sanctioned in S.T.L.P.S Thudanganad for the academic year 2006-07 and 2007-08 and these posts continued till 2010-11. But during the academic year 2008-09 and 2009-10 additional divisions are not allowable due to the lack of students. But the Manager had appointed 4 teachers Sr.Margaritha M Joseph, Sr.Molly P.V., Sri.Thomas Sebastian and Smt.Seena P.C in the above additional division vacancies, during the year 2009-10 and the appointments of Smt.Seena PC and_ **WP(C).No.10408 OF 2020(A)** **-5-** _Sri.Thomas Sebastian were approved as per GO(Rt)No.241/18/G.Edn dated 16.01.2018 and GO (Rt) No. 4828 /17/ G.Edn dated 16.12.2017 respectively._ _5. As there were 4 claimants for the 2 additional posts sanctioned during 2006/07 and 2007-08, the 3[rd] respondent after conducting a hearing including all the affected parties, arrived at a conclusion that Sr.Margaritha M Joseph and Sr.Molly PV are the senior teachers among them and their appointments are liable to be got approved. Also the approval given to the appointments of Sri.Thomas Sebastian and Smt.Seena PC during 200910 are to be cancelled and the excess amount disbursed as salary to them are to be recovered. In compliance of the GO(Rt) No.3645/2019/G.Edn dated 16.09.2019 the appointments of the petitioner from 12.06.2006 to 31.03.2007 and from 04.06.2007 to 31.03.2008 were approved by the 3[rd] respondent on daily wages basis as per order No.C/16476/2019 dated 30.12.2019 and C/16476/2019 dated 30.12.2019 respectively. Also as per Exhibit P14 Government Order, the appointment of the petitioner from 09.06.2008 onwards was rejected.”_ 5. The learned Government Pleader, thereafter, submitted that since the petitioner had served only small spells during the academic years 2006-07 and 2007-08, she has ## **WP(C).No.10408 OF 2020(A)** **-6-** been granted approval to those spells on daily wage basis and that her approval from 09.06.2008 has been rejected, because four teachers were working, when only two additional vacancies were available. He thus prayed that this writ petition be dismissed. 6. Even when I hear the learned Senior Government Pleader on the afore lines, the impugned orders make it clear that the petitioner’s approval had not been granted earlier, since the Manager of the School had not executed a bond in terms of GO(P) No.10/10/G.Edn dated 12.01.2010. However, that issue has been now set right through Ext.P18, whereby, the Government directed that such a bond be deemed to have been executed; and consequently the petitioner was given approval for the spells between 04.06.2007 and ## **WP(C).No.10408 OF 2020(A)** **-7-** 31.03.2008 on daily wage basis, presumably because, as per the extant Government Orders, the periods were less than one academic year could have only been so approved. 7. However, it is without doubt that after the Hon’ble Supreme Court delivered the judgment in **State of Kerala v. Sneha Cheriyan** [2013(1)KHC 660], such objections cannot remain against the petitioner and that she will have to be granted approval on scale-of-pay basis during afore said period also. 8. That said, even the afore extracted counter affidavit of the 7[th] respondent does not explain why the petitioner has been denied approval from 09.06.2008. This is pertinent because, in paragraph 5 thereof, it is virtually admitted that the petitioner and a teacher by name Sr.Molly P.V., are the senior ## **WP(C).No.10408 OF 2020(A)** **-8-** most teachers and that their appointments are liable to be approved. After saying so, it is inscrutable how the impugned orders decline approval to the petitioner from 09.06.2008. 9. I am, therefore, certain that Government must reconsider this matter taking note of the ratio in **Sneha Cheriyan (supra)** and also the seniority in the School for the relevant period in question. In the afore circumstances, I order this writ petition and set aside Exts.P14 and P18 to the extent to which it has granted approval to the petitioner between 12.06.2006 to 31.03.2007 and 04.06.2007 to 31.03.2008 on daily wage basis and has rejected her approval with effect from 09.06.2008; with a consequential direction to the competent Secretary of the Government to reconsider the petitioner's claims adverting ## **WP(C).No.10408 OF 2020(A)** **-9-** to the ratio in **Sneha Cheriyan (supra)** and after verifying the seniority list of the School in question, and after affording an opportunity of being heard to the petitioner, as also the Manager of the School - either physically or through video conferencing – thus leading to an appropriate order thereon, as expeditiously as is possible, but not later than four months from the date of receipt of a copy this judgment. It is needless to say that Ext.P15, which is an order consequential to Ext.P14, shall be disregarded while the afore exercise is completed. ## **Sd/-** **DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C).No.10408 OF 2020(A)** ## **-10-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORDER NO. C/1374/06/K.DIS DATED 09/10/2006 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P2 THE TRUE COPY OF THE ORDER NO.B1/7479/06/K.DIS DATED 28.04.2007 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER. EXHIBIT P3 THE TRUE COPY OF THE ORDER NO.C/1144/07/K.DIS DATED 20.09.2007 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P4 THE TRUE COPY OF THE ORDER NO. B1/2499/08/K.DIS DATED 25.09.2008 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER. EXHIBIT P5 THE TRUE COPY OF THE ORDER NO. C/1002/08/K.DIS DATED 11.08.2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P6 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 11.11.2010 ISSUED BY THE 8TH RESPONDENT AND ITS APPROVAL ORDER NO. C- 5174/2010/K.DIS DATED 12.01.2011 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 25.01.2013 ISSUED BY THE 8TH RESPONDENT AND ITS APPROVAL ORDER NO. C- 477/13/K.DIS DATED 11.03.2013 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P8 THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 8TH RESPONDENT DATED 03.06.2013 AND ITS APPROVAL ORDER NO.B4/7607/2015/K.DIS DATED 27.04.2016 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT DATED 18.02.2015 IN W.P.(C) NO. 6039/2012 OF THIS HON'BLE COURT** **-11-** ## **WP(C).No.10408 OF 2020(A)** - **EXHIBIT P10** **THE TRUE COPY OF THE JUDGMENT DATED 28.07.2015 IN W.P.(C)NO. 15998/2015 OF THIS HON'BLE COURT.** - **EXHIBIT P11** - **THE TRUE COPY OF THE JUDGMENT DATED 17.11.2016 IN W.P.(C) NO.3383/2013 OF THIS HON'BLE COURT.** - **EXHIBIT P12 THE TRUE COPY OF THE JUDGMENT DATED 25.07.2017 IN W.A.NO.2290/2015 OF THIS HON'BLE COURT.** - **EXHIBIT P13 THE TRUE COPY OF THE JUDGMENT DATED 28.06.2018 IN W.P.(C) NO.21391/2018 THIS HON'BLE COURT.** - **EXHIBIT P14 THE TRUE COPY OF THE ORDER NO. G.O(RT) NO. 3645/2019/G.EDN. DATED 16.09.2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P15 THE TRUE COPY OF THE ORDER NO. C/1711/2017 DATED 10.12.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P16 THE TRUE COPY OF THE COMMUNICATION NO.B/104/2008 DATED 26.10.2019 ISSUED BY THE 8TH RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT P17 THE TRUE COPY OF THE ORDER NO. C/16479/2019 DATED 30.12.2019 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P18 THE TRUE COPY OF THE ORDER C/16476/2019 DATED 30.12.2019 ISSUEDBY THE 3RD RESPONDENT.** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE