Sudharma P.S. v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` TUESDAY, THE 27[TH]DAY OF SEPTEMBER 2022 / 5TH ASWINA,1944 ``` ``` WP(C) NO. 2863 OF 2021 ``` ## `PETITIONER/S:` ``` 1SUDHARMA P.S. AGED 47 YEARS CLUSTER RESOURCE CENTRE COORDINATOR (CRCC), BLOCK RESOURCE CENTRE (BRC) VAIKOM, THALAYAOLAPARAMBU P.O., KOTTAYAM DISTRICT-686605, FORMERLY UPSA, SMSNVHSS VAIKOM, KOTTAYAM DISTRICT-686141. 2BEENA K. SUGATHAN HSA (MATHS), SMSNVHSS VAIKOM, KOTTAYAM DISTRICT-686141. 3SUNEETHA K.U. UPSA, SMSNVHSS VAIKOM, KOTTAYAM DISTRICT-686141. BY ADVS. P.M.PAREETH SRI.MOHAMMED SHAMEEL ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM, KOTTAYAM DISTRICT-686001. 4DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY, KOTTAYAM DISTRICT-686004. ``` 2 W.P. (C) No.2863 of 2021 ``` 5MANAGER, SMSNVHSS VAIKOM, KOTTAYAM DISTRICT-686141. ``` ``` *ADDL R6ANJU.M.N (H.S.A)(NATURAL SCIENCE), S.M.S.N.V.H.S.S., VAIKOM, KOTTAYAM-686 141. ``` ``` *ADDL.R6 IMPLEADED AS PER ORDER DATED 15-02-2021 IN IA 1/2021 IN WP(C) 2863/2021. BY ADVS. A.N.RAJAN BABU ``` ``` SMT.NISHA BOSE, SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P. (C) No.2863 of 2021 ## **JUDGMENT** The petitioners are before this Court seeking to quash Exts.P1 to P3 to the extent it denies the approval of the appointment of the petitioners from the date of their appointments till 31.5.2011, to quash Exhibit P9 order passed by the 1st respondent and for incidental reliefs. 2. The petitioners contend that the 1st petitioner was appointed on 1.8.2006 as per Ext.P1. The 2nd petitioner was appointed as UPST in the 5th respondent school with effect from 18.7.2007, and the 3rd petitioner was appointed as UPST in the same school with effect from 15.7.2008 as per Ext.P3 order. However, approval was granted only with effect from 1.6.2011. This was because of the economic ban imposed by the Government. Though the matter was taken up in appeal and in revision, higher authorities refused to interfere. In the said circumstances, the petitioners are stated to have preferred Exts.P5 to P7 representations before the 1st respondent. Pursuant to the directions issued by this Court, the 1st respondent rejected the representations by Ext.P9 order on the ground that the Manager had not executed the bond in terms of G.O(P) 10/10/G.Edn. It is in the afore circumstances that the petitioners are before this Court seeking approval of their appointments 4 W.P. (C) No.2863 of 2021 from the initial date itself. 3. A counter affidavit has been filed by the 3rd respondent wherein it is stated that the appointment of all the petitioners was approved only with effect from 1.6.2011 as the appointments were made anticipating additional vacancies, but no additional posts were sanctioned during these periods. It is further stated that the Manager had failed to execute the bond in terms of G.O(P) 10/10/G.Edn. 4. A counter affidavit has been filed by the 5th respondent. After narrating the sequence of events, it is stated that the Manager is willing to execute the bond for appointment in additional vacancies following the ratio 1:1. Referring to Ext.R5(a), it is contended that protected teachers in the ratio of 1:1 have to be appointed only in additional posts arising from 29.1.2016 and the same does not include posts arising from resignation, death, retirement, transfer, and promotion. It is further stated that one protected teacher, namely Atmaja Roshan Iype has already been appointed by the manager in the school and reference is made to Ext.R5(b). 5. I have heard Sri.P.M.Pareeth, the learned counsel appearing for the petitioners, Sri.A.N.Rajan Babu, the learned counsel 5 W.P. (C) No.2863 of 2021 ## appearing for the Manager. 6. It is submitted by the learned Government Pleader that Ext.R5(b) declaration is executed in terms of Ext.R5(a) Government Circular. According to the learned Government Pleader, unless the Manager executes a bond in terms of G.O(P) 10/10/G.Edn, the appointments made by the Manager cannot be approved. 7. Having considered the submissions it appears that in so far as petitioners 2 and 3 are concerned, the proposal for approval was rejected on the ground that the Manager has not executed the bond. In so far as the 1st petitioner is concerned, her request for approval was rejected on the ground that the request for approval of the appointment of the additional 6th respondent Smt. Anju M.N was declined for non-execution of the bond by the Manager. 8. 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 6 W.P. (C) No.2863 of 2021 during the ban period are approved. In the case on hand, approval of the appointment of the petitioners and Smt. Anju M.N was declined for non-execution of the bond by the manager. This Court has held that even in cases wherein bonds have not been executed by the Managers, 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. In that view of the matter, rejection of approval on the ground that the manager had not executed the bond cannot be proper. The respondents are free to reckon that the manager 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. In that view of the matter, the matter requires reconsideration at the hands of the 1st respondent. 9. In view of the discussion above, I am of the view that this writ petition can be disposed of by issuing the following directions: a) Exhibit P9 will stand quashed. b) The 1st respondent is directed to consider afresh 7 W.P. (C) No.2863 of 2021 Exhibits P5 to P7, taking note of the law laid down by this Court in **Suma Devi** (supra). Orders shall be passed expeditiously, in any event, within four months from the date of receipt of a copy of this judgment. c) As the approval of the appointment of the petitioners hinges around the grant of approval to Anju M.N. as well, while considering the representations, the Secretary to Government shall be free to reckon that the manager 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, in so far as the petitioners and Smt Anju M.N. are concerned. It is made clear that the orders passed by the 1st respondent as directed above 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 8 W.P. (C) No.2863 of 2021 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 9 W.P. (C) No.2863 of 2021 ## `APPENDIX OF WP(C) 2863/2021` ``` PETITIONERS EXHIBITS ``` |`EXHIBIT P1`|`A PHOTOCOPY OF THE APPOINTMENT ORDER DATED`| |---|---| ||`01/08/2006 IN RESPECT OF THE 1ST PETITIONER`| ||`WITH ENDORSEMENT OF APPROVAL DATED 03/01/2012.`| |`EXHIBIT P2`|`A TRUE COPY OF THE APPOINTMENT ORDER DATED`| ||`18/07/2007 IN RESPECT OF THE 2ND PETITIONER`| ||`WITH ENDORSEMENT OF APPROVAL DATED 03/01/2012.`| |`EXHIBIT P3`|`A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED`| ||`15/07/2008 IN RESPECT OF THE 3RD PETITIONER`| ||`WITH ENDORSEMENT OF APPROVAL DATED 03/01/2012.`| |`EXHIBIT P4`|`A TRUE PHOTOCOPY OF THE JUDGMENT DATED`| ||`15/06/2015 IN WPC NO.32727/2011.`| |`EXHIBIT P4(A)`|`A TRUE PHOTOCOPY OF THE JUDGMENT DATED`| ||`18/02/2015 IN WPC NO.4643/2012.`| |`EXHIBIT P4(B)`|`A TRUE PHOTOCOPY OF THE JUDGMENT DATED`| ||`24/07/2017 IN WA NO.931/2016.`| |`EXHIBIT P5`|`A TRUE PHOTOCOPY OF THE REPRESENTATION DATED`| ||`13/07/2020 SUBMITTED BY THE 1ST PETITIONER`| ||`BEFORE THE 1ST RESPONDENT.`| |`EXHIBIT P6`|`A TRUE PHOTOCOPY OF THE REPRESENTATION DATED`| ||`13/07/2020 SUBMITTED BY THE 2ND PETITIONER`| ||`BEFORE THE 1ST RESPONDENT.`| |`EXHIBIT P7`|`A TRUE PHOTOCOPY OF THE REPRESENTATION DATED`| ||`13/07/2020 SUBMITTED BY THE 3RD PETITIONER`| ||`BEFORE THE 1ST RESPONDENT.`| |`EXHIBIT P8`|`A TRUE PHOTOCOPY OF THE JUDGMENT DATED`| ||`22/07/2020 IN WPC NO.14800/2020.`| 10 W.P. (C) No.2863 of 2021 ``` EXHIBIT P9A TRUE PHOTOCOPY OF THE GO(RT)NO. 125/2021/G.EDN. DATED 05/01/2021. ``` ``` RESPONDENTS EXHIBITS Exhibit R5(a)TRUE COPY OF THE CIRCULAR NO.J2/57/2019/G.EDN. DATED 08/03/2019. Exhibit R5(b)TRUE COPY OF THE DECLARATION DATED 14/03/2019 GIVEN BY THE MANAGER. ```