State of Kerala represented by its Secretary, General Education Department, Government Secretariat, Thiruvananthapuram - 695001; The Director of General Education, Directorate of General Education, Thiruvananthapuram - 695014; The Deputy Director of Education, Civil Station, Ernakulam - 682030; The District Educational Officer, Office of the District Educational Officer, Ernakulam - 682011; The Assistant Educational Officer, Vypeen, Edavanakkad, Ernakulam District - 682502 v Felicia Maria Joseph and The Manager, St. Gregory's U.P School, Kuzhuppilly, Ernakulam District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **WA.No.68 OF 2021** **AGAINST THE JUDGMENT DATED 24-07-2020 IN WP(C) 8269/2020(G) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 5:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001,** - **2 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, THIRUVANANTHAPURAM - 695014,** - **3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, ERNAKULAM - 682030.** - **4 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM - 682011.** - **5 THE ASSISTANT EDUCATIONAL OFFICER, VYPEEN, EDAVANAKKAD, ERNAKULAM DISTRICT - 682502.** **BY GOVERNMENT PLEADER SMT. RAJI T. BHASKAR** ## **RESPONDENTS/PETITIONER & 6TH RESPONDENT:** - **1 FELICIA MARIA JOSEPH AGED 41 YEARS, W/O. JOSEMON M.T, U.P.S.T. ST.GREGORY'S UP SCHOOL, KUZHUPPILLY, ERNAKULAM DISTRICT, MAZHIVANCHERY HOUSE, AYYAMPILLY P.O, ERNAKULAM - 682501.** - **2 THE MANAGER ST.GREGORY'S U.P SCHOOL, KUZHUPPILLY, ERNAKULAM - 682501.** **R1 BY ADV. SRI.ELVIN PETER P.J. R1 BY ADV. SRI.K.R.GANESH R2 BY ADV. SRI.N.K.SUBRAMANIAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No.68/2021 -2- ## **J U D G M E N T** Dated this the 10[th] day of March, 2021 ## Gopinath, J: This appeal is filed by the State of Kerala and its officers challenging the direction issued by a Learned Single Judge of this Court, directing the approval of the appointment of one Felicia Maria Joseph as an Upper Primary School Assistant (U.P.S.A), in the St.Gregory’s U.P School, Kuzhuppilly, with effect from 1-6-2016. 2. Felicia Maria Joseph, the 1[st] respondent in this appeal was initially appointed as U.P.S.A on 03-06-2013 in the leave vacancy of one Jiby Varghese. That appointment was to continue till 30-09-2017. This spell of appointment in the leave vacancy was duly approved. In the meanwhile, consequent to retirement of one Lissy P.C, the 1[st] respondent was appointed as U.P.S.A, on a permanent basis, with effect from 01-062016. This appointment was not approved and was rejected by the Assistant Educational Officer (AEO) through Ext.P3 order dated 31-102016, on the ground that there were no government orders for approval of the appointment. By an order dated 24-11-2016 an appeal to the District Educational Officer (DEO) was rejected on the ground that the staff fixation for the years 2016-17 had not been completed. An appeal was preferred to the Director of Public Instructions (DPI) against the order of DEO dated 24-11-2016. When the appeal was pending a fresh proposal was given to the AEO since the staff fixation for 2016-17 had been completed by WA No.68/2021 -3- that time. This proposal was rejected by Ext.P5 for the same reason as in Ext.P3. An appeal was preferred to the DEO who, by Ext.P6 order, found that the action of the AEO in rejecting the approval was against the instructions of the Director of Public Instructions and further directed that the question of approval of the 1[st] respondent be reconsidered by the AEO and if there is no other objection to the approval, the same was directed to be granted. 3. Even after Ext.P6 order the AEO did not take any action. The then AEO approached the Director of Public Instructions through a representation to recall the observations made against his conduct in Ext.P6. The husband of the 1[st] respondent also approached the DPI with a representation regarding the approval of the appointment 1[st] respondent. Through Ext.P7 order, the DPI again directed the AEO to reconsider the matter. Whereupon, through Ext.P8 order dated 18-05-2019 the approval of appointment of the 1[st] respondent was rejected on the ground that she did not have K-TET qualification. This was ignoring the exemption that was available to 31-03-2019 for acquiring the K-TET qualification through Ext.P9 order dated 15-11-2019 of the Government. By that order the last date for acquisition of K-TET qualification in respect of those appointed till 31-03-2019 was extended till the commencement of the academic year 2020-2021 i.e. till 01-06-2020. An appeal against Ext.P8 order before the DEO was rejected on the ground that the 1[st] respondent has to approach the WA No.68/2021 -4- DPI. Through Ext.P13 order dated 17-12-2019 the DPI remanded the matter to the AEO for fresh consideration in accordance with the terms of the Government order dated 15-11-2019. The AEO thereafter passed Ext.P14 order dated 05-02-2020 rejecting the approval of appointment of the 1[st] respondent for totally new reasons. The principal reason now indicated was that there were appointments made earlier by the Manager which was against the provisions contained in the Rules and instructions issued by the Government from time to time and hence there was no post to which the 1[st] respondent could have been appointed. Impugning Ext.P.14 order, the 1[st] respondent approached this court through W.P (C) No.8269/2020. 4. On a consideration of the matter the learned Single Judge found that the objection raised by the AEO in Ext.P14 has no merit especially since the earlier appointments which were found to be in excess had already been approved and also noting that the Manager had issued Ext.p15 proceedings on the basis of the directions issued by the AEO. As for the objections regarding Smt. Shiny Vargheese and Smt. Shiny George the learned Judge found that those teachers had been appointed in 1996 & 1999 and their qualifications were, at that point of time, sufficient for appointment as LPSA. The Learned Single Judge noted that no objections were raised regarding their shifting as LPSA by the Manager (on 01-112000) for nearly 20 years. Therefore, the learned Judge quashed Ext.P14 WA No.68/2021 -5- and directed the approval of the 1[st] respondent with effect from 01-062016. The official respondents in the writ petition are therefore in appeal challenging the directions issued by the learned Single Judge. 5. The learned Government Pleader referred to the grounds raised in the writ appeal and sought to justify Ext.P14 order. She vehemently contends that this was not a case where the AEO had taken different objections at different points of time and that each objection raised by the AEO was valid with reference to the Rules and instructions issued by the Government from time to time. She would submit that the earlier appointments made by the Manager were contrary to the Rules and this has resulted in a situation where there were excess appointments, as a result of which there was no vacancy against which the 1[st] respondent could be accommodated. She would submit that the Government was being burdened with unnecessary financial commitments on account of illegal appointments and therefore the Department must be permitted to ensure, if necessary, by taking action against the Manager, that the appointments made are strictly in accordance with the Rules and instructions issued by the Government from time to time. 6. _Per contra_ , the learned counsel appearing for the 1[st] respondent submits with reference to various orders issued by the AEO and the orders in appeal, revision etc. (which we have already referred to above) that each time when the question of approval of the 1[st] respondent was placed before WA No.68/2021 -6- the AEO, the officer was coming up with different reasons to deny approval of appointment. He would submit that this is a case where the 1[st] respondent was appointed to an established vacancy which arose on account of the retirement of Lissy P.C. with effect from 01-06-2016. He would also submit that the reason now found by the AEO in Ext.P14 cannot be sustained for the reason that the AEO was obviously trying to rake up issues regarding appointment of other teachers by the Manager after the same had been duly approved by the educational authorities. He would therefore submit that even assuming that those appointments were in any way illegal or against Rules, such appointments having been approved, it is not proper or legal for the AEO to now seek to establish that there was no vacancy to which the 1[st] respondent can be validly appointed and approved. 7. We have considered the contentions raised by either side. On a perusal of the orders issued by the AEO from time to time and whenever the question of approval of the 1[st] respondent was placed before the officer, we have no hesitation to hold that each time the proposal was put up, the AEO came up with different reasons to deny approval of the appointment. In the first instance the ground was that there were no Government orders permitting approval of appointment during the relevant year. Thereafter the objection taken was that the 1[st] respondent did not have the necessary qualifications. After the DPI found that the time limit for acquiring K-TET qualification has been extended, the AEO came up with yet another reason WA No.68/2021 -7- that the appointments earlier made by the Manager many years ago were illegal and improper as a result of which there was no vacancy against which the 1[st] respondent could have been appointed. As rightly found by the learned Single Judge the Manager had already, and on the directions of the AEO, adjusted the appointments already made which is evident from Ext.P15. Regarding the objection raised with reference to the appointments of Smt. Shiny Vargheese and Smt. Shiny George the learned Single Judge has correctly found that those appointments were made in the year 1996 & 1999 and approved and any objection against the adjustment of those teachers as LPSA’s, after nearly a period of 20 years cannot be a reason to deny approval to the appointment of the 1[st] respondent. Noticing the conduct of the A.E.O, we are in this case reminded of the illuminating _ratio_ of a Constitution Bench of the Supreme Court in _**Bhopal Sugar Industries Ltd. v. ITO**_ , (1960) 40 ITR 618 where, noticing the failure on the part of an officer in implementing the orders of a superior Tribunal, it was held: - _**“8.** We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic_ WA No.68/2021 -8- _principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.”_ This case is a classic example of the AEO refusing to implement the orders of a superior appellate authority under one pretext or the other. This is, as noticed by the Supreme Court in _**Bhopal Sugar Industries Ltd. (supra)** ‘in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice, based as it is in this country, on a hierarchy of courts.’_ 8. Considering the submission of the learned Government Pleader that the question of earlier appointments being illegal and contrary to the Rules, we notice that no action whatsoever has been taken either against the officer who approved the appointments or against the Manager in accordance with the provisions contained in Rule 7 of Chapter III of the Kerala Education Rules. We do not deem it necessary to say anything further regarding those appointments or examine the question further as none of the teachers who were allegedly appointed contrary to Rules and instructions issued by the Government and educational authorities are WA No.68/2021 -9- parties to the proceedings. Further as noticed by the Learned Single Judge, a re-opening of such issues belatedly and after nearly 20 years had passed and after such appointments had been approved is not possible. In so far as the appointment of the 1[st] respondent is concerned it was against a retirement vacancy which, it is not disputed, arose with effect from 01-06-2016. It is also not disputed before us that the 1[st] respondent has now acquired the K-TET qualification within the time permitted by the Government in Ext.P9 Government order. Therefore, we see no reason to interfere with the direction issued by the learned Single Judge to approve the appointment of the 1[st] respondent with effect from 01-06-2016. However we leave it open to the Educational Authorities to examine any future appointments that may be made by the Manager and determine whether such appointments need be approved or not pending the adjustment/regularization of appointments made earlier, allegedly against the Rules and instructions. 9. We had, noticing the conduct of the AEO from time to time (we are told that different officers occupied the post of AEO during the relevant period) issued the following interim order dated 23-02-2021:- _Further to our order dated 19.2.2021, the Assistant Educational Officer, Vypeen has passed an order approving the appointment of the 1[st] respondent subject to the result of this Writ Appeal. A copy of that order has been placed before us by the learned Government Pleader. A reading of the order shows that the objection raised earlier regarding the approval of the appointment_ WA No.68/2021 -10- _of the 1st respondent was that she had not acquired K.TET qualification. It is also recorded in the order that teachers appointed prior to 2019-2020 have time up to 2020-2021 to obtain the qualification. The learned counsel for the 1[st] respondent submits that the time has still been extended further and also that insofar as the 1st respondent is concerned, she has already obtained K.TET qualification. The learned Counsel for the 1[st] respondent shall place on record a copy of the Certificate showing that the 1[st] respondent has been successful in the K. TET examination._ _The appeal shall be listed for disposal on 8.3.2021.”_ Following that order, the AEO has issued an order dated 23-02-2021 approving the appointment of the 1[st] respondent provisionally and subject to the result of this writ appeal. In the light of our finding as above, we deem it appropriate to direct that the provisional approval of the 1[st] respondent shall now be treated as final and conclusive. The 1[st] respondent will be entitled to all consequential benefits flowing therefrom which shall be disbursed to the 1[st] respondent without any further delay and at any rate within an outer time limit of 3 months from the date of receipt of a copy of this judgment. The writ appeal fails and is accordingly dismissed. ## (Sd/-) **A.K. JAYASANKARAN NAMBIAR JUDGE** (Sd/-) **GOPINATH P. JUDGE** **AMG**