High Court of KeralaSingle Judge2023-08-21Writ petition disposed of with directions to th...

Suhara K. v. State of Kerala and others

Case / Petition Number:WP(C) No. 15005 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Justice Anu Sivaraman
Judgment Date: 2023-08-21
Court Decision / Holding: There will be a direction to the 4th respondent to take up the petitioner’s claim for approval of the appointments made by Exts.P1 and P3 with notice to the petitioner as well as the respective Managers. Necessary orders shall be passed approving the appointments, if they are otherwise in order, after hearing the parties concerned, within a period of two months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition disposed of with directions to the 4th respondent to consider the petitioner’s claim for approval of Exts.P1 and P3 after hearing, and to pass necessary orders approving the appointments if otherwise in order within two months.

Parties to the Case

Appellants / Petitioners

Suhara K.

Respondents

State of Kerala represented by the Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram-695001
Director of General Education, Office of the Director of General Education, Thiruvananthapuram-695014
Deputy Director of Education, Kannur-670001
District Educational Officer, Thalassery-670101
Manager, N.A.M Higher Secondary School, Perinagathur, Thalassery, Kannur District-670675
Manager, Rajeev Gandhi Memorial High School, Mokeri, Mokeri P.O., Thalassery, Kannur District-670692
Headmaster, N.A.M Higher Secondary School, Peringathur, Thalassery, Kannur District-670675
Headmaster, Rajeev Gandhi Memorial High School, Mokeri, Mokeri P.O., Thalassery, Kannur District-670692

Legal Representation & Advocates

Counsels for Petitioners

• Poovamulle Parambil Abdul Kareem

Counsels for Respondents

• Sunil Kumar Kuriaokose, GP

Case Synopsis & Summary

The petitioner, Suhara K., a High School Assistant in Arabic, seeks judicial intervention to obtain approval of her earlier appointments in two government-aided schools (5th and 6th respondents) and to secure the consequent monetary benefits. She was initially appointed as HSA (Arabic) in the 5th respondent school from 17.8.2004 to 29.12.2008, resigning on 28.9.2005. She then joined the 6th respondent school on 10.10.2005 in a resignation vacancy, but the approval for that appointment was rejected. Subsequently she was appointed in a regular vacancy at Chothavoor Higher Secondary School, where the appointment was approved. She moves for approval of the earlier spells in the 5th and 6th schools on the basis of Ext.P8, which concluded that approvals could be granted since there was no material showing a list of protected teachers. The respondents counter that the resignations violated Rules 48 and 53 of Chapter XIVA KER, and that the earlier appointments cannot be approved. They rely on Rule 7 (appointment effective from joining if approved) and on Sreeja v. Asst. Educational Officer (2000) KLJ 970, and argue that the 5th and 6th appointments were not approved. The High Court holds that since the appointments were not approved, Rule 53 is inapplicable to termination, and directs the 4th respondent to consider the petitioner’s claim for approval of Exts.P1 and P3 after hearing, within two months, if otherwise in order.

Provisions of Law Cited

Chapter XIVA KER, Rule 7Chapter XIVA KER, Rule 48Chapter XIVA KER, Rule 53

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that her appointments in the 5th and 6th respondents’ schools were never approved; thus, there was no requirement for prior sanction to resign, as the appointments had not become effective. She relies on Rule 7, which deems appointment effective from joining only if duly approved, and argues that withdrawals or resignations prior to approval cannot be impeded by non-approval. She relies on Sreeja v. Asst. Educational Officer & Others (2000) KLJ 970 to contend that where approval is not granted, Rule 48 and 53 do not bar consideration of earlier appointments for approval, since those rules apply only if the appointment has become effective. She seeks Exts. P1 and P3 approvals (2004 and 2005 appointments) based on Ext. P8 finding that there was no list of protected teachers and thus approvals could be granted; and that the 4th respondent should decide with notice and within two months.

Contentions of Respondents

The Government Pleader and respondents argue that the resignations in 2005 and 2006 violated Rules 48 and 53 of Chapter XIVA KER, and therefore the appointment cannot be approved. They contend that Rule 7 only makes the appointment effective from joining if it is approved and that the termination of an unapproved appointment does not require prior approval. They rely on Rule 53 that prohibits a teacher from terminating service without the Educational Officer’s permission while the appointment has not yet become effective. They also note that Ext.P8 shows the petitioner’s name was not listed on the unapproved teachers list and, in any event, that the 5th appointment’s approval stood rejected earlier and the 6th appointment’s approval was likewise rejected. They further argue that Ext.P7 judgment indicating approval of a later appointment (5.6.2006 to 1.6.2011) cannot override the earlier rejections and that the matter requires consideration within the statutory framework.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Kerala v. T. S. Nadeera and Others	2013 (2) KLT 88 (DB)	Positive	Cited to support entitlement to further approvals for appointments in light of the court’s reasoning in similar prior cases.
Sreeja v. Asst. Educational Officer & ors.	2000 (1) KLJ 970	Positive	Used to interpret Rule 48 and 53, stating that prior approval for relieving applies only where appointment has become effective by due approval; supports that termination may proceed without prior approval in unapproved cases.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21[ST] DAY OF AUGUST 2023 / 30TH SRAVANA, 1945** **WP(C) NO.15005 OF 2020** ## **- PETITIONER :** SUHARA K., AGED 44 YEARS HIGH SCHOOL ASSISTANT (ARABIC), CHOTHAVOOR HIGH SCHOOL, CHAMPAD, KANNUR DISTRICT-670 694. BY ADV POOVAMULLE PARAMBIL ABDULKAREEM ## **- RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 014. 3 DEPUTY DIRECTOR OF EDUCATION, KANNUR-670 001. 4 DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THALASSERY-670 101. 5 MANAGER, N.A.M HIGHER SECONDARY SCHOOL, PERINGATHUR, THALASSERY, KANNUR DISTRICT-670 675. 6 MANAGER, RAJEEV GANDHI MEMORIAL HIGH SCHOOL, MOKERI, P.O.MOKERI, THALASSERY, KANNUR DISTRICT-670 692. 7 HEADMASTER, N.A.M HIGHER SECONDARY SCHOOL, PERINGATHUR, THALASSERY, KANNUR DISTRICT-670 675. WP(C) NO.15005 OF 2020 -: 2 :- 8 HEADMASTER, RAJEEV GANDHI MEMORIAL HIGH SCHOOL, MOKERI, P.O.MOKERI, THALASSERY, KANNUR DISTRICT-670 692. BY SRI.SUNIL KUMAR KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.15005 OF 2020 -: 3 :- ## **JUDGMENT** ## **Dated this the 21st day of August, 2023** This writ petition is filed seeking the following reliefs :- - “(i) To issue a writ of mandamus or any other appropriate writ or order or direction, directing the 4[th] respondent to implement Exhibit P8 order dated 26/02/2018 issued by the 3[rd] respondent forthwith. - (ii) To issue a writ of mandamus or any other appropriate writ or order or direction, directing the 4[th] respondent to grant approval to the appointments of the petitioner as H.S.A.(Arabic) from 17/08/2004 to 09/10/2005 and from 10/10/2005 to 05/06/2006 in the scale of pay and to disburse all consequential monetary benefits due to her forthwith. - (iii) To declare that the petitioner is entitled to get approval of her appointments in the scale of pay in the schools under the respondents 5 & 6 in the light of State of Kerala and others Vs. T.S. Nadeera and others, reported in 2013 (2) KLT 88 (DB).” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as HSA (Arabic) in the 5[th] respondent's school from 17.8.2004 to 29.12.2008. Approval was rejected. While so, she resigned from the said school on 28.9.2005. She was thereafter appointed as HSA WP(C) NO.15005 OF 2020 -: 4 :- (Arabic) in the 6[th] respondent's school on 10.10.2005. Approval was rejected for the said appointment also. Later, the petitioner was appointed in a regular vacancy in the present school, that is, Chothavoor High School, Champad. The said appointment was approved. Thereafter, the petitioner sought approval of the earlier spells of appointment under the 5[th] and 6[th] respondents' schools. 4. The 5[th] and 6[th] respondents along with other Managers had approached this Court and obtained Ext.P6 judgment for approval of the appointments made by them in their schools during the relevant times on the ground that they had appointed at least one protected teacher and that there was no list made available by the Deputy Director of Education for appointment of protected teachers against the remaining vacancies. By Ext.P8 proceedings, the Deputy Director of Education had found that the appointments made in the said schools are liable to be approved since there was no material to show that the list of protected teachers has been made available to the Managers at the relevant time. The petitioner seeks approval of her appointment in the 5[th] and 6[th] WP(C) NO.15005 OF 2020 -: 5 :- respondents' schools from 17.8.2004 and 10.10.2005 respectively on the strength of Ext.P8. 5. A counter affidavit has been placed on record by the 3[rd] respondent admitting the facts as stated in the writ petition. However, it is contended that even though the petitioner was appointed in the 5[th] respondent's school from 17.8.2004 to 29.12.2008, she resigned from service on the afternoon on 28.9.2005 which is against Rules 48 and 53 of Chapter XIVA KER. It is submitted that though the petitioner joined the 6[th] respondent's school on 10.10.2005 in a resignation vacancy, approval was rejected for the said appointment. She again resigned from service with effect from 31.3.2006 to take up her present engagement in the Chothavoor Higher Secondary School, Chothavoor. It is stated that this resignation is also against Rules 48 and 53 of Chapter XIVA KER. It is submitted that the appointment of the petitioner with effect from 5.6.2006 to 1.6.2011 also stands approved pursuant to Ext.P7 judgment. It is stated that though Ext.P8 proceedings have been issued on 26.2.2018, the petitioner's appointment could not be approved since she had submitted resignation from WP(C) NO.15005 OF 2020 -: 6 :- these schools which is against Rules 48 and 53 of Chapter XIVA KER. It is stated that the name of the petitioner was not on the list of unapproved teachers submitted by respondents 5 and 6 during the enquiry referred to in the second paragraph of Ext.P8 and hence, approval for the appointment of the petitioner before 5.6.2006 cannot be considered. 6. The learned counsel for the petitioner submits that the petitioner's appointment in the 5[th] and 6[th] respondents' schools was never approved. It is, therefore, contended that there is no requirement for any prior sanction or approval to the petitioner's resignation from the educational authorities concerned since she was an unapproved teacher. It is submitted that Rule 7 of Chapter XIVA KER specifically provides that the appointment of a teacher shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved. It is, therefore, contended that the petitioner had left the service after submitting due resignations before the Manager, who is the appointing authority and that there is no requirement for any sanction or approval either in terms of Rule 48 or Rule 53 of WP(C) NO.15005 OF 2020 -: 7 :- Chapter XIVA KER in view of the fact that her appointment had not become effective by approval. Reliance is also placed on a decision of this Court in **Sreeja** v. **Asst. Educational Officer & ors.** [2000 (1) KLJ 970] wherein this Court held that when the appointment of the petitioner was not approved there was no question of getting previous approval for termination of the appointment as provided in Rule 48. 7. The learned Government Pleader places reliance on Rule 53 to contend that the Rule specifically provides that a teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer. It is contended that the resignation of the petitioner is against the provisions of Rules 48 and 53 and therefore, the appointments are not liable to be approved. 8. Having considered the contentions advanced, I notice that the petitioner's appointment in the 5[th] and 6[th] respondents' schools was not approved. There is no contention raised by the respondents that the petitioner had left the schools on her own volition without submitting due resignations. The only contention is that the resignation WP(C) NO.15005 OF 2020 -: 8 :- submitted by the petitioner were not duly approved in terms of Rules 48 and 53 of Chapter XIVA KER. Further, I notice that Rule 7 of Chapter XIVA KER provides for the appointment itself being effective from the date of joining duty provided the same is duly approved. 9. Rule 48 of Chapter XIVA KER reads as follows :- **“48.** No teacher shall be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer.” This Court in **Sreeja's case** has considered the impact of Rule 48 and has held that the prior approval for relieving a teacher would apply only in a case where the appointment has become effective by due approval. Rule 53 also states that the teacher shall not himself terminate his service before the expiry of the term of his appointment, without the permission of the Educational Officer. This Rule also obviously applies only in a case where the appointment itself has become effective by approval. In a case where the approval to the appointment stands rejected, there is no question of the teacher or the Manager approaching the Educational Officer for permission to terminate the appointment since the appointment has not WP(C) NO.15005 OF 2020 -: 9 :- become effective at all. In the above view of the matter, I am of the opinion that Rule 53 also would not stand in the way of the consideration of the petitioner's claim for approval of the earlier appointments in view of the fact that there is no contention raised that the petitioner had left service without submitting due resignations. In the above view of the matter, there will be a direction to the 4[th] respondent to take up the claim of the petitioner for approval of the appointments made by Exts.P1 and P3 orders with notice to the petitioner as well as the respective Managers. Necessary orders shall be passed approving the appointments, if they are otherwise in order, after hearing the parties concerned, within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/7.9.23 WP(C) NO.15005 OF 2020 ## -: 10 :- ## **APPENDIX OF WP(C) 15005/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 17.08.2004 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.B1/27061/04/D.DIS. DATED 24.05.2005 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 10.10.2005 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.B613046/2005/K.DIS. DATED 26.12.2005 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 05.06.2006 ISSUED BY THE MANAGER OF THE CHOTHAVOOR HIGH SCHOOL. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 20.12.2016 IN WRIT PETITION NO.29885/2010 ISSUED BY THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 09.03.2018 IN WP(c)NO.24302/2016 ISSUED BY THIS HON'BLE COURT. EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS NO.B4/7498/17/K.DIS. DATED 26.02.2018 ISSUED BY THE 3RD RESPONDENT.