State of Kerala v. Sri Jins John LPSA and Corporate Educational Agency, Diocese of Idukki (W.A. No. 379 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** **WA NO. 379 OF 2021** **AGAINST THE JUDGMENT DATED 06.07.2020 IN WP(C).NO.32182/2011** **OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN W.P(C):** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION (H) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001** - **3 THE DISTRICT EDUCATIONAL OFFICER, THODUPUZHA-685 584** - **4 THE ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA-685 561** **BY ADV GOVERNMENT PLEADER SMT.RAJI T.BHASKAR** ## **RESPONDENTS/PETITIONER & RESPONDENTS 5TH RESPONDENT IN W.P(C):** - **1 SRI.JINS JOHN LPSA, GOVERNMENT U.P.S., PAIMATTOM AND RESIDING AT KOTTUNGAL HOUSE, KALOORKADU P.O, (VETTAM KAVALA), MUVATTUPUZHA-686 668** - **2 THE MANAGER,** **CORPORATE EDUCATIONAL AGENCY, DIOCESE OF IDUKKI, KARIMPAN, MANIPPARA P.O, IDUKKI 685 602.** :2: W.A.No.379 of 2021 **BY ADVS.SRI.K.T.THOMAS SRI.MATHEW B. KURIAN** **SRI.J. JULIAN XAVIER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: W.A.No.379 of 2021 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The State is in appeal before us aggrieved by the judgment dated 06.07.2020 of the learned Single Judge in W.P(C).No.32182 of 2011. 2. The brief facts relevant for a disposal of the appeal are as follows: The writ petitioner Sri.Jins John was appointed as an Lower Primary School Assistant (LPSA) in schools under the same management during various spells viz. 12.11.2002 to 11.08.2003, 18.09.2003 to 18.11.2003, 30.01.2004 to 31.03.2004, 07.09.2004 to 03.11.2004 and finally 04.11.2004 to 31.03.2005. Save for the last spell aforementioned, all the previous spells of appointments were duly approved by the educational authorities. The last spell between 04.11.2004 and 31.03.2005 was not approved by the Assistant Educational Officer (AEO), who by Ext.P2 order dated 17.11.2005 relied on G.O.(P).No.169/04/G.Edn to hold that only protected teachers could be appointed in vacancies, the duration of which was less than one year, and that too on daily wage basis. A reading of the Government Order relied upon clearly indicates that there was a specific provision therein that a claim for reappointment under Rule :4: W.A.No.379 of 2021 51A of the KER would be limited to those who have been appointed against regular/leave vacancies having a duration of not less than one academic year and that the vacancies having a duration of less than one academic year would be filled up on daily wage basis. 3. Although the Manager of the school (the 5[th] respondent) preferred an appeal against Ext.P2 order before the District Educational Officer (DEO), the same came to be dismissed by the said officer. A revision petition preferred before the Additional Director of Public Instructions also did not meet with any success and the same was rejected by Ext.P4 order. A subsequent revision preferred before the Government also came to be rejected by Ext.P6 on the same ground. 4. It would appear that, thereafter, by Government order dated 19.01.2006 (Ext.P7), the Government, based on representations received from various teachers, clarified that the conditions in paragraph 6 of G.O(P).No.169/2004 G.Edn dated 15.06.2004 will not apply, inter alia, to reappointment of those who had acquired the claim under Rule 51A Chapter XIV A KER, if the reappointment was to a vacancy having duration of more than two months as existed prior to the amendment. Based on the said Government Order dated :5: W.A.No.379 of 2021 19.01.2006 the writ petitioner preferred a representation before the Director of Public Instructions (DPI) claiming the benefit of the said Government Order. The Additional DPI, however, by Ext.P10 order rejected the request of the Manager. Although a further revision was filed by the petitioner before the Government, the same also came to be rejected by Ext.P12 order. In the Writ Petition, the petitioner impugned Ext.P12 order, inter alia, on the contention that by Ext.P7 Government Order, the Government had clarified the provisions of G.O. (P).No.169/04/G.Edn that had been relied on by the AEO to deny approval to the appointment of the petitioner for the period from 04.11.2004 to 31.03.2005, and hence, the said action of the Government was irregular and illegal. 5. Although a counter affidavit was filed on behalf of the 3[rd] respondent reiterating the stand of the educational authorities and the Government in the matter of denying approval to the appointment of the petitioner for the spell aforementioned, the learned Single Judge who considered the matter found that Ext.P7 order of the Government dated 19.01.2006 was a clarificatory order, which clarified the scope and ambit of the earlier G.O.(P).No169/04/G.Edn, and viewed from that angle, the petitioner had to be seen as entitled to an approval of his appointment for the spell from 04.11.2004 to 31.03.2005. This was :6: W.A.No.379 of 2021 notwithstanding the fact that the period of appointment was less than one year. 6. In the appeal before us, the main contention urged by the learned Government Pleader at the time of hearing is that Ext.P7 clarificatory order of the Government was subsequent to the expiry of the period of appointment of the petitioner, namely 31.03.2005, and hence the provisions thereunder would not enure to the benefit of the writ petitioner. It is also contended that if the directions in the judgment of the learned Single Judge are implemented it will open the floodgates to similar claims by others who have been denied approval to their appointments for periods less than one year. 7. We have heard Smt.Raji T.Bhaskar, the learned Government Pleader for the appellant and Sri.Julian Xavier, the learned counsel for the writ petitioner. 8. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, we find no reason to interfere with the judgment of the learned Single Judge, who in our view has correctly held that Ext.P7 order of the Government had clarified the scope and ambit of the G.O.(P)No169/04/G.Edn, and had made it clear :7: W.A.No.379 of 2021 that persons like the petitioner who had obtained a right under Rule 51A of Chapter XIVA KER prior to the date of the aforesaid Government order could not be denied the benefit of an approval to their appointment so long as the appointment was to a vacancy the duration of which was more than two months as was the position prior to the amendment of the Rule and the issuance of the G.O. (P)No169/04/G.Edn. It is trite that clarificatory orders have to be seen as having effect from the date of the Government Order, which stands clarified by it, and when so viewed, the denial of approval to the appointment of the writ petitioner for the period from 04.11.2004 to 31.03.2005 on regular basis cannot be justified. This is more so when no material has been placed before us that would suggest that Ext.P7 Government Order has been set aside in any legal proceedings. The judgment of the Supreme Court in **Manager, VKNM Vocational Higher Secondary School v. State of Kerala** ; 2016(1) KLT 489 (SC) does not in any manner affect the right of the 1[st] respondent as the claim for approval relates to a period prior to the 2005 amendments to Rules 7A(3) and 51A of Chapter XIVA KER. 9. The Writ Appeal therefore fails and is accordingly dismissed. The appellants shall ensure that an order granting approval to the appointment of the petitioner for the period aforementioned, as :8: W.A.No.379 of 2021 directed by the learned Single Judge, is passed within a period of 8 weeks from the date of receipt of a copy of this judgment, and the consequential monetary benefits paid to the petitioner within a reasonable period not exceeding six months thereafter. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **GOPINATH P. JUDGE** mns