Sunil Kumar P.V. v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 18TH DAY OF MAY 2020 / 28TH VAISAKHA, 1942 ## WP(C).No.34195 OF 2011(Y) ## PETITIONER: SUNIL KUMAR P.V.,HIGH SCHOOL ASSISTANT (ENGLISH) CPPHM HIGHER SECONDARY SCHOOL (C.P POKER HAJI, MEMORIAL HIGHER SECONDARY SCHOOL) OZHOOR,, VELLACHAL.P.O, TIRUR, MALAPPURAM - 676 106. BY ADVS. SMT.K.R.KRISHNAKUMARI SMT.P.V.RADHAMANI ## RESPONDENTS: |1|STATE OF KERALA , REPRESENTED BY| |---|---| ||SECRETARY TO GOVT. GENERAL EDUCATION,| ||DEPARTMENT,SECRETARIAT,, THIRUVANANTHAUPRAM - 695| ||001.| |2|DIRECTOR OF PUBLIC INSTRUCTIONS| ||THIRUVANANTHAPURAM - 695 014.| |3|DEPUTY DIRECTOR OF EDUCATION| ||MALAPPURAM.| |4|DISTRICT EDUCATIONAL OFFICER| ||TIRUR, MALAPPURAM DISTRICT.| |5|MANAGER CPPHM HIGH SCHOOL (C.P POKER HAJI, MEMORIAL| ||HIGHER SECONDARY SCHOOL) OZHOOR, VELLACHAL.P.O, TIRUR,,| ||MALAPPURAM DISTRICT - 676 106.| |6|V.M. MOHAMMED ALI HSA SOCIAL STUDIES| ||CPPHM HIGH SCHOOL,(C.P POKER HAJI, MEMORIAL HIGHER| ||SECONDARY SCHOOL) OZHOOR, VELLACHAL.P.O,, TIRUR,| ||MALAPPURAM DISTRICT - 676 106.| R1 BY GOVERNMENT PLEADER R1, R6 BY ADV. SRI.ELVIN PETER P.J. **-2-** ## **W.P.(C) No.34195/2011** R1 BY ADV. SRI.K.R.GANESH R1 BY ADV. SRI.T.G.SUNIL PRANAVAM R5 BY ADV. SRI.M.R.ANISON R5 BY ADV. SMT.V.BHARGAVI (PANANGAD) R5 BY ADV. SMT.P.A.RINUSA ## OTHER PRESENT: ## SR GP NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD AND RESERVED FOR JUNDGMENT ON 11-02-2020, THE COURT ON 18-05-2020 DELIVERED THE FOLLOWING: **W.P.(C) No.34195/2011** **-3-** ## J U D G M E N T Dated this the 18th day of May 2020 Heard Advocate K.R.Krishnakumari and Sr. Government Pleader Nisha Bose for parties. 2. Sunil Kumar P.V./petitioner challenges the orders of respondent nos. 1 to 4 in Exts. P2, P3, P4, P6, P7, P8 and P11 as illegal and that the impugned orders refuse to exercise the jurisdiction conferred on respondent nos.1 to 4 for according approval to the appointment of petitioner as H S A in 5th respondent /school. The net effect of the orders impugned in the writ petition is that respondent nos. 1 to 4 refused to approve the appointment of petitioner firstly made as HSA (SS) between 02.09.2004 and 14.01.2005, and secondly, on 29.06.2005 till the petitioner was appointed as HSA (English) in June 2009 and thirdly on 1.6.2009 till 31.5.2011. The petitioner claims to be working in 5th respondent/School as on date. This assertion is not in dispute **W.P.(C) No.34195/2011** **-4-** between the contesting parties. The circumstances relevant for disposing of the writ petition are stated thus: 3. The 5th respondent appointed petitioner through Ext.P1 dated 02.09.2004 as HSA (SS) in the temporary vacancy available with the sanctioning of maternity leave to Smt.Susan Mathew, an approved teacher in HSA (SS) working in 5th respondent/School. On 22.11.2004 another permanent/approved teacher by name Ancy Joseph died. On 29.06.2005 5th respondent appointed petitioner against the vacancy caused by the demise of Ancy Joseph. 5th respondent on 08.09.2004 forwarded application to 4th respondent for according approval to the appointment of petitioner made in Ext.P1 for the period 02.09.2004 to 14.01.2005. 4th respondent through order dated 13.10.2004 rejected the application by observing that (i) the order sanctioning leave by competent authority to Susan Mathew is not produced (ii) address is not written in the conduct certificate (iii) the teacher Vijayakumari P.V. is to be appointed against the temporary vacancy of Susan Mathew **W.P.(C) No.34195/2011** **-5-** and (iv) as per Government Order No.169/04 dated 15.06.2004 vacancies with less duration ought to be filled up on daily wages but not make temporary arrangement. 5th respondent, aggrieved by the order dated 13.10.2004 (Ext.P2) filed appeal before 3rd respondent and the appeal filed by 5th respondent was rejected vide order dated 08.08.2005 in Ext.P3. The 5th respondent carried the matter by way of further appeal before the 2nd respondent. 2nd respondent through order dated 04.07.2007 (Ext.P4) rejected the appeal filed by the 5th respondent against the order of 3rd respondent refusing to grant approval to the appointment made in the temporary vacancy of Susan Mathew. While matters stood thus, as already noted, 5th respondent, on 29.06.2005 appointed petitioner in the clear vacancy available on the demise of Ancy Joseph, a permanent HSA (SS) on 22.11.2004. 4. The request of 5th respondent for approval of appointment was declined by 4th respondent vide order No.B39551/05/K dated 22.12.2005. The reasons noted by 4th respondent **W.P.(C) No.34195/2011** **-6-** for refusing approval are that (i) protected teacher should have been appointed as per G.O.(P) 178/02 since the school is included in the list of new schools, and (ii) fresh appointments cannot be approved by Education Department, since posts are retained by applying 1:40 ratio. 5th respondent filed appeal against order dated 22.12.2005 and the same was rejected by the 3rd respondent in order no.B4/7740/06 dated 05.06.2006 (2nd reference in Ext.P7) The further appeal filed before 2nd respondent against the order refusing to grant approval was also rejected in order dated 05.07.2007 (Ext.P7). th 5. The petitioner and the 5 respondent aggrieved by all the decisions of respondents 2 to 4 refusing approval to the appointment of petitioner as HSA (SS) in 5th respondent/School filed revision before 1st respondent. The revision was dismissed vide order dated 17.02.2010 (Ext.P8) and the conclusions recorded is that (i) as per G.O.(P) No.169/04 dated 15.06.2004 a vacancy, the duration of which is less than a year, shall be filled up on daily **W.P.(C) No.34195/2011** **-7-** wages, (ii) 5th respondent School being a new school is bound to absorb a protected teacher, (iii) the staff fixation for the academic year 2004-05 have to be revised by applying 1:40 ratio in order to retain another teacher by name Smt. Vijayakumari and there was no sanctioned post. The petitioner filed review in Ext.P10 and the 1st respondent through order dated 23.04.2011 in Ext.P11 rejected the review as well. The above narration deals with appointment as HSA (SS) and refusal to joint approval to the appointment by the respondents. 6. As already noted, in the month of June 2009 the petitioner was appointed as HSA (English) in 5th respondent School. The 4th respondent through order no.B3/11033/2007 dated 20th November 2008 decided the staff fixation of 5th respondent school for the academic year 2006-07. According to petitioner, the staff fixation for the year 2006-07 resulted in sanctioning three additional posts in the High School division of 5th respondent school. The net effect of sanctioning three additional post is that 60 **W.P.(C) No.34195/2011** **-8-** divisions were sanctioned as against 58 divisions administrated up to the academic year 2005-06. The respondents, however on account of the operation of ban on recruitment of teachers did not permit the school management to proceed to appoint teachers in accordance with the applicable rules against the clear vacancies available in the School. In the month of January 2010 the ban was lifted and additional posts are stated have to been sanctioned. Therefore the appointment of petitioner by taking note of existing vacancies merits approval by the respondents, however, a reason is searched to refuse approval to the appointment made by the 5th respondent. th 7. Briefly reiterated, the case of petitioner is that the 4 respondent ought to have approved the appointment of petitioner as HSA (English) as the appointment is against available vacancy and in accordance with the applicable procedure. The final attempt of petitioner to seek approval from 1st respondent at least in one of the posts available in HSA (English) was also negatived by dismissing the **W.P.(C) No.34195/2011** **-9-** Review Petition dated 03.12.2010 by communication dated 23.04.2011 by the respondent. Hence the writ petition. 8. It is further averred, to point out equality before law that th th 5 respondent appointed V.M.Mohammed Ali/6 respondent as HSA (SS) during the academic year 2004-05. The petitioner alleges that the appointment of 6th respondent as HSA (SS) is subsequent to the appointment of petitioner in Ext.P1 dated 02.09.2004. 5th respondent approached respondent nos. 1 to 4 for approving the appointment of 6th respondent as HSA (SS) and respondents through the orders made from time to time either on the original request or appeal etc rejected the proposal of 5th respondent for approving the appointment. 6th respondent filed W.P.(C) No.24350/2009 challenging the orders of Government declining to accord approval to the appointment of 6th respondent between 03.01.2005 and 23.03.2005 as illegal, arbitrary and unconstitutional. The petitioner herein is one of the respondents therein. One of the contentions put forward by 6th respondent in W.P.(C) No.24350/2009 is that the **W.P.(C) No.34195/2011** **-10-** conclusion of respondent nos. 1 to 4 that short term vacancies ought to be filled up on daily wage basis is contrary to the rule position applicable to the appointment made by the 5th respondent in favour of 6th respondent. It is averred that this Court on 16.11.2011 in Ext.P12 ordered the writ petition and the operative portion of the judgment reads thus: “With regard to the filling up of short term vacancies, reliance is placed on G.O. (P) .No.169/04/G.Edn., dated 15/06/2004 (Ext.P10), which also cannot help the respondents in the light of the decision of a Division Bench of this Court in **Abdurahiman v. Government of Kerala** [2009 (2) KLT 105] wherein, in para. 14 while considering the claim under Rule 51A of Chapter XIV A K.E.R, this Court considered the amendment made to Rule 7A (3) of chapter XIV A K.E.R also. It is held that upto 25.6.2005, it was possible to appoint persons to vacancies having a duration not less than two months and such appointees on being relieved, were treated as 51A claimants also. For easy reference, I am extracting para. 14 of the said Judgment. "14. …………. Up to 25.6.2005, it was possible to appoint persons to vacancies having a duration not less than two months. Such appointees, on being relieved, were treated as 51A claimants also. Even in the absence of any such rule, it is a well recognised principle in Industrial Jurisprudence that a person retrenched **-11-** ## **W.P.(C) No.34195/2011** from service should be preferred, when vacancy arises in future. Earlier, it was thought that the said benefit flowing from Chap. VA of the Industrial Disputes Act in favour of the workmen was available only if retrenchment is made after working for 240 days. The said concept has been knocked down by the judgment of the Division Bench of this court in _Prabhakaran v. General Manager, K.S.R.T.C_ (1981 KLT 164). So, in industries, persons appointed for one or two months if retrenched, were entitled to get reappointment when vacancies arise in future. In the case of Educational institutions, the minimum incumbency period was fixed as two months. That is because a valid appointment can be made only if the vacancy extends beyond that period. Now, it is provided that appointments can be made, if only the duration of the vacancy is one academic year and only such incumbents are to be given preference in future appointments. But, the said amendment can in no way affect the rights accrued to persons, on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The right of them to get re-appointment was always recognised by R.51A. But, after 25.6.2005, one can be appointed if only the vacancy has a duration of one academic year……” The petitioner is entitled to succeed in the light of the above as the appointment was made before the amendment of Rule 7A (3) of Chapter XIV A Kerala Education Rules. Prior to the amendment of Rule 7A(3) the restriction was only for non filling up of vacancies, the duration of which is two months or less and here the duration of **W.P.(C) No.34195/2011** **-12-** vacancy is more than two months. In that view of the matter, the petitioner's appointment is liable to be approved. 9. Petitioner herein being aggrieved by the judgment dated 16.11.2011 in W.P.(C) No.24350/2009 filed W.A. No.184/2012. On 13.08.2014 writ appeal filed by the petitioner was dismissed. It is contextual to note that one of the grievances the petitioner canvassed in W.A. No.184/2012 is that the 6th respondent being an appointee subsequent to the appointment of petitioner is directed to be approved, the case of the petitioner is not finalized by that time therefore a direction in favour of V.M.Mohammed Ali prejudicially affects the rights of petitioner. The Division Bench in the judgment dated 13.08.2014 has left open for consideration the grievance of petitioner in the instant writ petition. Therefore the argument of petitioner is that the extent of extending the principle of this Court laid down in _Abdurahiman N.K. v. Government of Kerala_[1] is left open and the petitioner being first appointee has a better 1 2009 (1) KHC 950 **W.P.(C) No.34195/2011** **-13-** claim for all the reliefs. The reasons assigned by respondent nos. 2 to 4 for refusing to approve the appointment of petitioner for the first spell _viz_ . 02.09.2004 and 14.01.2005 are required to be considered independently in this writ petition. It is further canvassed that respondent nos. 1 to 4 did not file appeal against the judgment in W.P.(C) No.24350/2009. Therefore, both by following the ratio of this Court in _Abdurahiman_ case and the order granted in favour of 6th respondent pursuant to the disposal of W.P.(C) No.24350/2009 the petitioner is entitled to be extended the same benefit so far as the first period for which approval was refused. 10. To make further narration short, I deem it appropriate to refer to the reply of respondents in this behalf in the counter affidavit filed by the 2nd respondent. The 2nd respondent does not dispute the dates noted above. The counter affidavit by way of reply refers to the very same reasons which formed the basis for refusing to approve the appointment of petitioner in the first spell. The similarity of case of petitioner _vis-à-vis_ 6th respondent and the **W.P.(C) No.34195/2011** **-14-** directions issued by this Court are not disputed by respondents. The only answer stated by 2nd respondent is that 4th respondent requested the Government to file appeal against the judgment of this court in W.P.(C) No. 24350/2009. It is not clear from the counter affidavit dated 18.08.2012 whether an appeal was filed by the respondents against the judgment in W.P.(C) No.24350/2009 or not. On the other hand, when the writ appeal filed by the petitioner was dismissed on 13.08.2014 the pendency of any other appeal against the judgment in W.P.(C) No.24350/2009 was not brought to the notice of the Division Bench. Therefore, the argument of petitioner is that to the extent of refusing approval to the appointment of petitioner in Ext.P1 is unsustainable and liable to be set aside. 11. The learned Government Pleader does not dispute the circumstances canvassed by petitioner by referring to the judgment of this Court in Ext.P12, as well the precedent of this Court in _Abdurahiman_ case and that the consequential orders made pursuant to the adjudication in favour of 6th respondent. **W.P.(C) No.34195/2011** **-15-** 12. Considering the orders under challenge, the ratio laid down by this Court in _Abdurahiman_ case, similarity of circumstances between the case of petitioner and the 6th respondent, the view taken by a learned Single Judge in Ext.P12 judgment and also the confirmation of said judgment in W.A. No.184/2012, this Court is of the view that the orders of respondent nos. 1 to 4 to the extent of refusing to grant approval to the appointment of petitioner as HSA (SS) for the period 02.09.2004 to 14.01.2005 are unsustainable and liable to be set aside. The orders to the said extent are liable to be set aside ; accordingly set aside and petitioner is entitled to be treated on the same lines the 6th respondent was treated pursuant to the judgment in EXtP12. 13. Consequently to the extent of first spell of petitioner working as HSA(SS) this Court directs respondent nos. 1 to 4 to consider the case of petitioner for approval of appointment etc., in terms of judgment in Ext.P12 . 14. The petitioner challenges the order refusing to approve **W.P.(C) No.34195/2011** **-16-** the appointment of petitioner HSA (English) in June 2009. The reasons insofar as the refusal to approve HSA (English) are slightly different. These reasons for refusal are not covered by the judgment referred to above. Firstly, the petitioner seeks approval of appointment as HSA (English) made in June 2009. According to petitioner, there are sufficient number of posts and the petitioner is appointed as per rules in an available vacancy, and by taking note of the claim of petitioner, the respondents consider the proposal for appointment and approve the appointment as HSA (English). The said issue requires examination of details by respondent nos. 1 to 4. The reasons for refusing to accord approval to the appointment of petitioner as HSA (English) are not convincing. With a view to giving quietus to the issue of according approval to the request of th 5 respondent this Court is of the view that particularly to meet the ends of justice sets aside the order of 1st respondent in Ext.P11 and also the order of 2nd respondent dated 05.07.2011 and remits the case to 2nd respondent for according approval to the proposal of 5th **W.P.(C) No.34195/2011** **-17-** respondent appointing petitioner as HSA (SS) as indicated in terms of Ext.P1 and considers the case of petitioner for approving the appointment made in the month of June 2009 as HSA (English). The th nd 5 respondent is directed to furnish the required data to 2 respondent for taking a decision in this behalf within four weeks from the date of receipt of judgment. It is needless to observe that the petitioner is entitled to all the benefits which have been granted by this Court to 6th respondent in W.P.(C) No.24350/2009 and other orders passed by the respondents in implementing the judgment in Ext.P12. The same benefit be extended to petitioner as well. 15. As the next requests i.e. for the period 29.6.2005 to June 2009 and 1.6.2009 till 31.5.2011 for approval of appointment as HSA (SS) & (English) need to be reconsidered, the issue is sent back 2nd respondent for the said limited purpose. The 2nd respondent after receiving the copy of judgment issues within four weeks thereafter notice to petitioner as well 5th respondent, receives the details on the available vacancies in 5th respondent School, whether list of **W.P.(C) No.34195/2011** **-18-** protected teachers has been communicated to 5th respondent etc., decide the requests of 5th respondent for approving the appointment HSA (SS) & (English) of petitioner made during the periods referred to above within two months thereafter. The petitioner on approval, if accorded, is entitled to further benefits, the same disbursed within two months thereafter. The entire exercise is completed within four months from the date of receipt of copy of this judgment. The issue of approval of petitioners appointment is pending either with the respondents or in this Court for the past 15 years. Therefore it is in fitness of things that a decision is taken expeditiously and the issue is given quietus by the respondents. The 2nd respondent while considering the approval of appointment of petitioner for the period from 1.6.2009 till 31.5.2011, takes into account available sanctioned posts and the qualified teachers actually working in the school and passes orders on the approval of petitioner's appointment as HSA (English), further **W.P.(C) No.34195/2011** **-19-** petitioner a qualified teacher needs to be given due weightage. Writ Petition ordered as indicated above. Sd/- S.V.BHATTI JUDGE ## jjj The term '2[nd] respondent' occurring in the 10[th] , 14[th] , 15[th] and last paragraphs of the judgment dated 18.05.2020 in W.P.(C) No.34195/2011(Y) is corrected as '1[st] respondent' as per order dated 10.06.2020 in the said W.P.(C). Sd/Joint Registrar ## APPENDIX ## PETITIONER'S EXHIBITS |P1|TRUE COPY OF ORDER DATED 2.9.2004 OF MANAGER| |---|---| |P2|TRUE COPY OF THE ORDER NO.B3-8001/04/K.DIS DATED| ||13.10.2004 OF DEO| |P3|TRUE COPY OF ORDER NO.K.DIS.B4.7619/05 DATED 8.8.05 OF DDE| |P4|TRUE COPY OF ORDER NO.EM(4)/20225/07/DPI/K.DIS DATED| ||4.7.07 OF 2ND RESPONDENT| |P5|TRUE COPY OF ORDER DATED 29.06.2005 OF MANAGER| |P6|TRUE COPY OF ORDER NO.B3-9551/05/K.DIS DATED 11.12.2005 OF| ||DEO| |P7|TRUE COPY OF THE EM(4)/5227/2007/DPI/D.DIS DATED 5.7.07 OF| ||DPI| |P8|TRUE COPY OF THE G.O.(RT) NO.729/2010/G.EDN DATED 17.2.2010| **-20-** ## **W.P.(C) No.34195/2011** |P9|TRUE COPY OF THE ORDER NO.B3/11033/2007 DATED 20.11.08 OF| |---|---| ||DEO| |P10|TRUE COPY OF REVIEW PETITION DATED 03.12.2010| |P11|TRUE COPY OF LETTER NO 1324/A2/2011/G.EDN DATED 23.4.11| |P12|TRUE COPY OF JUDGMENT DATED 16.11.2011 IN WPC 24350/2009| |P13|TRUE COPY OF THE COMMUNICATION DATED 21.08.1991 SENT BY| ||THE 5TH RESPONDENT TO THE THIRD RESPONDENT| |P14|TRUE COY OF THE GO(P) NO.46/2006/G.EDN DATED 01.02.2006| ||ISSUED BY THE FIRST RESPONDENT| |P15|TRUE COPY OF THE COVERING LETTER DATED 10.06.2009 SENT BY| ||THE 5TH RESPONDENT TO THE 4TH RESPONDENT ALONG WITH| ||THE PROPOSAL FOR APPROVAL OF APPOINTMENT OF THE| ||PETITIONER AS HSA (ENGLISH) WITH EFFECT FROM 01.06.2009| |P16|TRUE COPY OF THE APPOINTMENT ORDER APPROVED BY THE 4TH| ||RESPONDENT WITH EFFECT FROM 01.06.2010|