Sreeja V.J. and Smitha K.N. v. State of Kerala and Ors

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 ``` ## `WP(C) NO. 5194 OF 2022` ## `PETITIONER/S:` ``` 1SREEJA V.J., AGED 48 YEARS UPSA AUP SCHOOL, VARODE POST, OTTAPALAM, PALAKKAD DISTRICT-679102. 2SMITHA K.N., AGED 41 YEARS UPSA AUP SCHOOL, VARODE POST, OTTAPALAM, PALAKKAD DISTRICT-679102. ``` ## `BY ADV POOVAMULLE PARAMBIL ABDULKAREEM` ## `RESPONDENT/S:` - `1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014.` - `3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD-678001.` - `4 ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASISTANT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD DISTRICT-679101.` - `5 THE MANAGER, AUP SCHOOL, VARODE POST, OTTAPALAM, PALAKKAD DISTRICT-679102.` - ** ADDL. R6 `THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD.` ``` WP(C) NO. 5194 OF 2022 2 ``` ``` **ADDL R6 IS SUOMOTU IMPLEADED AS PER ORDER DATED 8.6.2022 IN WPC NO. 5194/2022. ``` ``` SRI PREMCHAND R NAIR, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 5194 OF 2022 3 ``` ## **JUDGMENT** The petitioners contend that they were working as UPSAs in the AUP School, Avarode. According to the 1st petitioner, she was appointed as UPSA in the aforesaid school against a newly created post with effect from 16.7.2007 as per Ext.P1 order. The 2nd petitioner was appointed as UPSA in the aforesaid school with effect from 1.6.2009 against a newly created post as per Ext.P8 order. The grievance of the petitioners is with regard to the refusal on the part of the respondents to grant approval of their appointments for the period from 16.7.2007 to 31.5.2009 and 1.6.2009 to 31.5.2011 respectively. 2. It is contended by the petitioners 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. 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 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, ``` WP(C) NO. 5194 OF 2022 4 ``` 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. The petitioners were also included in the package and their appointments were regularised with effect from 1.6.2011. 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 contended that the petitioners have filed Exhibits P14 and P15 revisions before the Government seeking approval of their appointments treating that the manager has executed the bond. 3. Sri. P.P.Abdul Kareem, the learned counsel appearing for the petitioners 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 ``` WP(C) NO. 5194 OF 2022 5 ``` ban period. Though various other prayers were sought, when the matter came up for consideration, the learned counsel appearing for the petitioners submitted that the representations submitted by the petitioners be heard and disposed of in the light of the law laid down by this court. 4. The learned Government Pleader, on instructions, 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. The learned Government Pleader would further submit that the Revision Petition preferred by the petitioners herein by separate orders dated 15.02.2022 were remitted back to the DEO by the 1st respondent as per Rule 92 (1) C of Chapter XIV A of the KER. According to the learned ``` WP(C) NO. 5194 OF 2022 6 ``` Government Pleader, the matter is now pending consideration before the District Educational Officer. It is submitted that no orders have been passed till date. 5. In the nature of the order that I propose to pass, notice to the party respondent is dispensed with. As it is submitted that the matter is now pending before the DEO, Ottappalam, the said authority is suo motu impleaded as additional 6th respondent. 6. I have considered the submissions advanced. The writ petitioners were 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 appointments of the petitioners were approved only with effect from 1.6.2011 on the ground that there was a ban on appointments at the time of their 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 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 ``` WP(C) NO. 5194 OF 2022 7 ``` 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 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 this writ petition can be disposed of by issuing the following directions: a) The DEO, Ottappalam, the additional 6th respondent is directed to take up consider and pass orders on Exhibits P14 and P15 revision petitions filed by the petitioners with notice to the petitioners as well as 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 two months from the date of receipt of a copy of this judgment. ``` WP(C) NO. 5194 OF 2022 8 ``` - b) While considering the representations, 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. 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 ``` WP(C) NO. 5194 OF 2022 9 ``` APPENDIX ``` PETITIONER’S EXHIBITS : ``` - `Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 16/07/2007 ISSUED BY THE 5TH RESPONDENT TO THE 1ST PETITIONER.` - `Exhibit P2 TRUE COPY OF THE ORDER NO. L. DIS D/3178/07 DATED 22/10/2007 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P3 TRUE COPY OF THE APPEAL PETITION DATED 26/03/2008 SUBMITTED BY THE 5TH RESPONDENT.` - `Exhibit P4 TRUE COPY OF THE ORDER NO. B5-27881/07/D.DIS DATED 12/02/2008 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE ORDER NO. D.DIS/32749/08/RA(1)/DPI DATED 18/02/2009 ISSUED BY THE 2ND RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE ORDER NO. D.DIS. D/1537/09 DATED 28/08/2009 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P7 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2009 ISSUED BY THE 5TH RESPONDENT TO THE 1ST PETITIONER.` - `Exhibit P8 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2009 ISSUED BY THE 5TH RESPONDENT TO THE 2ND PETITIONER.` - `Exhibit P9 TRUE COPY OF THE ORDER NO. K.DIS.D/2660/09 DATED 27/08/2010 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P10 TRUE COPY OF THE LETTER NO. 60930/J2/G.EDN. DATED 25/10/2011 ISSUED TO THE 1ST RESPONDENT.` ``` WP(C) NO. 5194 OF 2022 10 ``` - `Exhibit P11 TRUE COPY OF THE JUDGMENT DATED 26/07/2017 IN WA NO.2592/2015 PASSED BY THIS HON'BLE COURT.` - `Exhibit P12 TRUE COPY OF THE CIRCULAR NO.100/J2/2017/G.EDN. DATED 11/09/2018 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P13 TRUE COPY OF THE GO(P) NO.4/2021/G.EDN. DATED 06/02/2021 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P14 TRUE COPY OF THE REVISION PETITION DATED 10/01/2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT.` - `Exhibit P15 TRUE COPY OF THE REVISION PETITION DATED 10/01/2022 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT.` - `Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 31/01/2022 IN WPC NO.3057/2022 PASSED BY THIS HON'BLE COURT.` - `Exhibit P17 TRUE COPY OF THE STAFF FIXATION ORDER NOS. D.DIS.D/2448/07 DATED 03/10/2007 FOR THE YEAR 2007-08 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P18 TRUE COPY OF THE STAFF FIXATION ORDER D.DIS/D/2866/09 DATED 17/02/2022 FOR THE YEAR 2009-10 ISSUED BY THE 4TH RESPONDENT.` ``` RESPONDENTS EXHIBITS : NIL ```