Sr. Stella Thomas v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943** ## **WP(C) NO. 26599 OF 2021** ## **PETITIONER/S:** SR. STELLA THOMAS AGED 44 YEARS D/O ALEYKUTTY, LOWER GRADE FULL TIME TEACHER, (L G F T), (HINDI), ST.JOHN'S H S , KURUMANNA, PALA, KOTTAYAM-683651. RESIDING AT ADORATION CONVENT, MARANGATTUPALLY P.O, KOTTAYAM-686635. BY ADV B.MOHANLAL ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF GENERAL EDUCATION GOVERNMENT OF KERALA, JAGATHY P.O, THIRUVANANTHAPURAM695014. 3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALACE ROAD, KOTTAYAM-686001. 4 THE ASSISTANT EDUCATIONAL OFFICER KURAVILANGADU, KURUVILANGADU P.O, KOTTAYAM-686633. 5 THE ASSISTANT EDUCATIONAL OFFICER ERATTUPETTA P.O, KOTTAYAM-686121. 6 THE DISTRICT EDUCATIONAL OFFICER PALA, PALA P.O, KOTTAYAM-686575. 7 THE ASSISTANT EDUCATIONAL OFFICER KOOTHATTUKULAM, KOOTHATTUKULAM P.O, ERNAKULAM-686662. 2 WP(C) NO. 26599 OF 2021 8 THE ASSISTANT EDUCATIONAL OFFICER PALA, PALA P.O, KOTTAYAM-686575. 9 THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALA, PALA P.O, KOTTAYAM-686575. SMT NISHA BOSE SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26599 OF 2021 3 ## **JUDGMENT** Being aggrieved by Ext.P13 order passed by the 1st respondent pursuant to directions issued by this Court in Ext.P12 judgment, the petitioner is before this Court. 2. The petitioner contends that she was appointed to the post of Lower Grade Part time Teacher (Hindi) in the St. Johns HS, Kurumanna, managed by the 9th respondent for the period from 20.10.2003 to 19.12.2003 as per Ext.P1 order. The appointment was approved by the 4th respondent. The petitioner contends that though the 9th respondent appointed the petitioner to the post of L.G.P.T. (Hindi) from 20.6.2006 to 31.3.2007 and from 2.6.2008 to 31.3.2009 in the St. Thomas HSS, Pala, the approval was declined as per Ext.P2 and P5 orders and the same was confirmed in appeal as well. 3. It is contended that the 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. It was in the said circumstances that the approval of the appointment of the petitioner was initially turned down. Later, by G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the ban on appointments was lifted subject to certain conditions. One among the WP(C) NO. 26599 OF 2021 4 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. The Manager failed to execute the bond as required in the Government order. Thereafter the Government issued G.O.(P) No.199/2011/G.Edn dated 01.10.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. 4. According to the petitioner, teachers similarly placed as the petitioner 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 has executed the bond. In the light of the law laid down by this Court, the petitioner approached the 1st respondent and filed Ext.P11 representation. Later, pursuant to directions issued by this Court in Ext.P12 judgment, the representation was taken up and the request made by the petitioner was rejected by Ext.P13 order on the sole ground that this Court had not directed the respondents to invoke the deeming provision while disposing of Ext.P12 judgment and on the ground that the Manager had not executed the bond. The petitioner contends that the order passed by the 1st respondent is in clear violation of the law laid down by this Court in Ext.P9 judgment. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exts.P2, P3, P5, P6 and WP(C) NO. 26599 OF 2021 5 P13 orders and also for a direction to the 1st respondent to grant approval of the appointment from the initial date in the light of Ext.P9 judgment and Ext.P15 Government order. 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 petitioner claims that she was appointed during the period when the ban was in force. As rightly contended by the learned counsel, 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 approved. Insofar as the pendency of the petitions instituted by the Managers before the Hon’ble Apex Court is concerned, the orders WP(C) NO. 26599 OF 2021 6 passed shall be subject to the final orders that may be passed by the Apex Court in the pending litigation. 7. After having carefully evaluated the contentions raised in this writ petition, the submissions made across the Bar and the facts and circumstances, I am of the view that there was no justification on the part of the 1st respondent in rejecting the representation filed by the petitioner on the ground that the Manager had not executed the bond. In Ext.P9 judgment of a Division Bench of this Court relying on the law laid down in **Suma Devi** (supra) had held that even in the case of non-execution of the bond by the Managers, it should be deemed to have been executed and they would be obliged to make an equal number of appointments when the appointments to additional vacancies during the ban period are approved. 8. In that view of the matter, I am of the view that Ext.P13 order cannot be sustained. Ext.P13 order will stand set aside. The 1st respondent shall reconsider Ext.P11 and pass fresh orders for which the following directions are issued. a) There will be a direction to the 1st respondent to reconsider Ext.P11 in the light of the law laid down by this Court in Ext.P9 judgment and pass fresh orders with notice to the petitioner as well as the 9th respondent and take a decision, as per procedure and in accordance with the law. b) Orders shall be passed expeditiously, in any event, within a period of WP(C) NO. 26599 OF 2021 7 three months from the date of receipt of a copy of this judgment. c) While considering Ext.P11, the Secretary to Government shall consider whether G.O.(P) No.10/10/G.Edn. dated 12.1.2010 would apply and if it applies, the 1st respondent shall be free to reckon 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. d) 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, if she is otherwise entitled to. It is made clear that the orders passed by the 1st respondent shall be subject to the decision of the Hon’ble Supreme Court in the pending petitions. e) 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 writ petition is disposed of. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS WP(C) NO. 26599 OF 2021 8 ## **APPENDIX OF WP(C) 26599/2021** PETITIONER EXHIBITS |Exhibit P1|THE TRUE COPY OF THE APPOINTMENT ORDER| |---|---| ||DATED 20.10.2003 ISSUED BY THE 9TH| ||RESPONDENT AND ITS APPROVAL ORDER| ||NO.E.4487/05/K.DIS DATED 12.01.2006 ISSUED| ||BY THE 4TH RESPONDENT TO THE PETITIONER| |Exhibit P2|THE TRUE COPY OF THE ORDER NO.B2-| ||3951/2006/K.DIS DATED 10.11.2006 ISSUED BY| ||THE 6TH RESPONDENT TO THE PETITIONER.| |Exhibit P3|THE TRUE COPY OF THE ORDER NO.B3-| ||19085/06/D.DIS DATED 26.04.2007 ISSUED BY| ||THE 3RD RESPONDENT TO THE PETITIONER.| |Exhibit P4|THE TRUE COPY OF THE APPOINTMENT ORDER| ||18/06/207 ISSUED BY THE 9TH RESPONDENT AND| ||ITS APPROVAL ORDER NO:C/2492/07/K.DIS| ||DATED 17.10.2007 ISSUED BY THE 5TH| ||RESPONDENT TO THE PETITIONER.| |Exhibit P5|THE TRUE COPY OF THE ORDER NO.B2-| ||3724/2008/K.DIS DATED 07.10.2008 ISSUED BY| ||THE 6TH RESPONDENT TO THE PETITIONER.| |Exhibit P6|THE TRUE COPY OF THE ORDER NO.B3-| ||16905/08/D.DIS DATED 07.11.2008 ISSUED BY| ||THE 3RD RESPONDENT TO THE PETITIONER.| |Exhibit P7|THE TRUE COPY OF THE APPOINTMENT ORDER| ||DATED 27.06.2012 ISSUED BY THE 9TH| ||RESPONDENT AND ITS APPROVAL ORDER| ||NO.C/2360/17.K.DIS DATED 14.05.2018 ISSUED| ||BY THE 7TH RESPONDENT TO THE PETITIONER.| |Exhibit P8|THE TRUE COPY OF THE ORDER| ||NO.C/1412/2017/K.DIS DATED 19.06.2017| ||ISSUED BY THE 8TH RESPONDENT TO THE| ||PETITIONER.| |Exhibit P9|THE TRUE COPY OF THE COMMON JUDGMENT DATED| ||09.08.2019 IN W A NO.300/2019 AND| ||CONNECTED CASES OF THE HON'BLE COURT.| WP(C) NO. 26599 OF 2021 9 - Exhibit P10 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER OF THE 9TH RESPONDENT CORPORATE EDUCATIONAL AGENCY. - Exhibit P11 THE TRUE COPY OF THE REPRESENTATION DATED 20.05.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - Exhibit P12 THE TRUE COPY OF THE JUDGMENT DATED 06.07.2018 IN WPC NO.22675/2018 OF THIS HON'BLE COURT. - Exhibit P13 THE TRUE COPY OF THE G O (RT) NO.253/2019/G.EDN DATED 21.01.2019 ISSUED BY THE 1ST RESPONDENT. - Exhibit P14 THE TRUE COPY OF THE CIRCULAR NO.100/J2/2017/G.EDN DATED 11.09.2018 ISSUED BY THE 1ST RESPONDENT. - Exhibit P15 THE TRUE COPY OF THE ORDER G O (P) NO.4/2021/G.EDN DATED 06.02.2021 ISSUED BY THE 1ST RESPONDENT. - Exhibit P16 THE TRUE COPY OF THE ORDER NO.A/144/2021 DATED 13.07.2021 ISSUED BY THE 9TH RESPONDENT TO THE PETITIONER. RESPONDENT EXHIBITS NIL avs