High Court of KeralaSingle Judge2021-10-11Writ petition disposed of; Ext. P3 set aside; d...

Sudhanya U. H.S.A., Sindhu.R., Anu Mary Varghese, Geetha.P v. State of Kerala and others (Manager, P.K. Higher Secondary School, Manjappra, Palakkad; Director of General Education; District Educational Officer, Palakkad)

Case / Petition Number:WP(C) NO. 23938 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2021-10-11
Court Decision / Holding: The writ petition is disposed of. Ext. P3 is set aside. The 1st respondent (Secretary to Government) is directed to reconsider the revision petitions and pass orders within three months, with notice to the petitioners and the 4th respondent, taking into account the Suma Devi doctrine and GO 2011 package, and to treat managers as having executed the bond and to appoint from the protected list equal to the number of appointments made during the ban period. The decision is subject to the Supreme Court’s pending decision; petitioners may produce relevant documents before the concerned authority.
Final Disposition: Writ petition disposed of; Ext. P3 set aside; directions to reconsider and decide within three months; bonds deemed executed; appointments from protected list to be made in proportion to the number approved during the ban; subject to Supreme Court decision.

Parties to the Case

Appellants / Petitioners

1 Sudhanya U. H.S.A, P.K.Higher Secondary School, Manjappra, Palakkad
2 Sindhu.R, H.S.A, P.K.Higher Secondary School, Manjappra, Palakkad
3 Anu Mary Varghese, H.S.A, P.K.Higher Secondary School, Manjappra, Palakkad
4 Geetha.P, U.P.S.A, P.K.Higher Secondary School, Manjappra, Palakkad

Respondents

State of Kerala represented by Secretary to Government, General Education Department, Thiruvananthapuram-695001
Director of General Education, Jagathy, Thiruvananthapuram-695014
District Educational Officer, Palakkad-678001
Manager, P.K.Higher Secondary School, Manjappra, Palakkad-678001

Legal Representation & Advocates

Counsels for Petitioners

• George Abraham Joseph GOPURAN

Counsels for Respondents

• Smt Nisha Bose, Sr GP

Case Synopsis & Summary

This writ petition challenges Ext. P3, a Government order/notice whereby the first respondent rejected the petitioners’ proposals for appointment as HSA/UPSA in P.K. Higher Secondary School, Manjappra. The petitioners contend they were appointed as HSAs in 2008–2010 in additional division vacancies; the Government had banned appointments in such vacancies via G.O.(P) No.317/2005/G.Edn. in 2005, which was lifted by G.O.(P) No.10/10/G.Edn. in 2010 subject to a condition that managers execute a bond, ensuring protected teachers equal to the number of appointments made during the ban would be appointed in future vacancies. The 4th petitioner failed to execute this bond. Later, G.O.(P) No.199/2011/G.Edn approved a comprehensive teacher’s package and regularised their appointment from 1.6.2011. Petitioners challenge the sustained validity of Ext. P3, relying on earlier judgments of this Court (and the Suma Devi doctrine) that bonds can be deemed executed even when not formally signed, and that appointments during the ban period must be approved from the date of appointment. Respondents argued the 1:1 apportionment rule and bond requirements. The Court, applying the Suma Devi principle and noting pendency before the Supreme Court, directs Ext. P3 to be set aside and for reevaluation within three months, with bonds deemed executed and protected-teacher appointments to be made accordingly, while keeping the decision contingent on the Supreme Court outcome.

Provisions of Law Cited

G.O.(P) No.317/2005/G.Edn.G.O.(P) No.10/10/G.Edn.G.O.(P) No.199/2011/G.Edn.GO(RT) NO.3266/19/G.Edn. (Exhibit P3)

Legal Doctrines & Maxims

Bonds deemed to have been executed by Managers in absence of formal execution
Equal number of appointments to protected teachers from the list during the ban period
Suma Devi doctrine (State of Kerala and Ors. v. V. Suma Devi and Ors, W.A.No.2111/2015)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that bonds need not be formally executed by the Manager; courts have consistently held that such bonds are deemed executed and equal numbers of appointments from the protected list must be made to compensate for appointments during the ban period. They argue Ext. P3 was wrongly based solely on pendency before the Supreme Court, ignoring established precedent (Suma Devi) and the prior judgments directing approval from the date of appointment. They request quashing Ext. P3 and directing immediate approval from the dates of appointment.

Contentions of Respondents

Respondents submit that appointments during additional division vacancies must be apportioned 1:1 and that, since the bond was not executed in terms of GO 10/10, the Manager should have executed a bond; various managers have challenged GO 10/10 in the Supreme Court; pending litigation cannot be used to grant benefits and Ext. P3 was a valid exercise of power; the matter requires awaiting the Supreme Court decision.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala and Ors. v. V. Suma Devi and Ors	W.A.No.2111/2015	Positive	Directly relied upon to endorse that bonds can be deemed executed when not formally signed, requiring proportional appointments from the protected list.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) NO. 23938 OF 2019** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943** ## **WP(C) NO. 23938 OF 2019** ## **PETITIONER/S:** - **1 SUDHANYA U. H.S.A, P.K.HIGHER SECONDARY SCHOOL, MANJAPPRA,PALAKKAD.** - **2 SINDHU.R, H.S.A, P.K.HIGHER SECONDARY SCHOOL, MANJAPPRA,PALAKKAD.** - **3 ANU MARY VARGHESE, H.S.A, P.K.HIGHER SECONDARY SCHOOL, MANJAPPRA,PALAKKAD.** - **4 GEETHA.P, U.P.S.A, P.K.HIGHER SECONDARY SCHOOL, MANJAPPRA,PALAKKAD.** **BY ADVS. GEORGE ABRAHAM JOSEPH GOPURAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF GENERAL EDUCATION, JAGATHY,THIRUVANANTHAPURAM-695014.** - **3 DISTRICT EDUCATIONAL OFFICER, PALAKKAD-678001.** - **4 MANAGER, P.K.HIGHER SECONDARY SCHOOL, MANJAPPRA,PALAKKAD-678001.** ## **SMT NISHA BOSE, SR GP** **WP(C) NO. 23938 OF 2019** **2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 23938 OF 2019** **3** ## **JUDGMENT** Being aggrieved by Exhibit P3 order by which, the 1st respondent has rejected the proposal of appointment of the petitioners 1 to 3 as HSAs and the 4th petitioner as UPSA in the P.K. Higher Secondary School, Manjapra, from their date of appointment, the petitioners are before this Court. 2. The petitioners 1 to 3 contend that they were appointed as HSAs on 23.07.2008, 05.08.2009 and 21.06.2010 respectively in additional division vacancies in the above school. The 4th petitioner was appointed as UPSA on 01.06.2010 in an additional division vacancy. 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. 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 2006-2007 to 2009-2010, would be appointed. The 4th respondent failed to execute the bond as required in the Government order. Thereafter, the Government issued G.O.(P) **WP(C) NO. 23938 OF 2019** **4** No.199/2011/G.Edn dated 01.10.2011 approving the recommendations for implementation of a comprehensive teacher’s package for appointment of deployed/protected teachers. The petitioners were also included in the package and their appointment was regularised with effect from 1.6.2011. Their grievance concerns the non-approval of their appointment from their date of appointment to 31.5.2011. 4. The petitioners contend that certain Managers had challenged the validity of G.O.(P) No.10/10/G.Edn. dated 12.1.2010 before this Court and their challenge was repelled by this Court. The Managers took up the matter before the Hon’ble Supreme Court and the same is pending consideration. 5. According to the petitioners, teachers similarly placed as them 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. 6. In the light of the law laid down by this Court, the petitioners approached the 1st respondent and filed statutory revision petitions. When no decision was taken, they approached this Court and pursuant to directions issued by this Court in Ext.P1 judgment, the matter was considered and the request of the petitioners was again rejected by Ext.P3 order on the sole ground that the proceedings filed by the Managers are pending before the Hon’ble Supreme Court. According to the petitioners, the stand taken by the **WP(C) NO. 23938 OF 2019** **5** respondents cannot be sustained. Reliance is placed on Ext.P4 judgment passed by a learned Single Judge of this Court to substantiate their contention. It is in the afore circumstances that the petitioners are before this Court seeking to quash Exhibit P3 and also for a direction to the concerned respondents to approve the appointment of the petitioners with effect from the respective dates of their appointment. 7. Dr.George Abraham, 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 ban period. The learned counsel points out that the law laid down by this Court has not been taken note of while passing Ext.P3 order. 8. 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 **WP(C) NO. 23938 OF 2019** **6** the Apex Court. 9. I have considered the submissions advanced. 10. 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 appointment of the petitioners was 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 an equal number of appointments when the appointments to additional vacancies made during the ban period are approved. A perusal of Ext.P3 order passed by the 1st respondent would reveal that the solitary reason for rejection of the request is the pendency of the matter filed by the Managers before the Hon’ble Supreme Court. In that view of the matter, Ext.P3 order cannot be sustained. 11. 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: **WP(C) NO. 23938 OF 2019** **7** - a) Ext.P3 order passed by the 1st respondent will stand set aside. - b) The 1st respondent is directed to reconsider the revision petition filed by the petitioners and pass orders with notice to the petitioners as well as the 4th respondent and take a decision, taking note of the law laid down by this Court in **Suma Devi** (supra) and also in Exhibit P4. Orders shall be passed expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. - c) While considering the petition, 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. 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. 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. **WP(C) NO. 23938 OF 2019** **8** - d) 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** IAP **WP(C) NO. 23938 OF 2019 9** ## **APPENDIX OF WP(C) 23938/2019** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C)NO.30667/18 DATED 18/9/2018.** **EXHIBIT P2 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE PETITIONERS.** **EXHIBIT P3 TRU COPY OF THE GOVERNMENT ORDER VIZ.GO(RT)NO.3266/19/G.EDN.DATED 14/8/2019.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.19693/19 DATED 5/8/2019.** ## **RESPONDENTS EXHIBITS:NIL**