Sunitha.G v. Assistant Educational Officer, Mannarkkad, Palakkad District; District Educational Officer, Palakkad; Deputy Director of Education, Palakkad; State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936 W.P.(C).No. 29999 of 2014 (Y) ---------------------------------------- PETITIONER: ----------------- SUNITHA.G, AGED 30 YEARS LOWER PRIMARY SCHOOL ASSISTANT (LPSA) KRISHNA AIDED LOWER PRIMARY SCHOOL, ALANALLUR PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS: --------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, MANNARKKAD, PALAKKAD DISTRICT. 2. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. R BY GOVERNMENT PLEADER SRI.M.A.FAYAZ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29999 of 2014 (Y) ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE APPOINTMENT ORDER DATED 226-7-2006 ISSUED BY THE MANAGER TO THE PETITIONER EXT.P2 COPY OF THE ORDER TO THE DISTRICT EDUCATIONAL OFFICER,PALAKAD DATED 29-6-2007 EXT.P3 COPY OF THE BOND EXECUTED BY THE MANAGER OF THE SCHOOL EXT.P4 COPY OF THE STAFF FIXATION ORDER OF KRISHA AIDED LP..SCHOOL,ALANALLUR FOR THE ACADEMIC YEAR 2007-2008 EXT.P5 COPY OF THE STAFF FIXATION ORDER OF KRISHA AIDED LP..SCHOOL,ALANALLUR FOR THE ACADEMIC YEAR 2008-2009 EXT.P6 COPY OF THE STAFF FIXATION ORDER OF KRISHA AIDED LP..SCHOOL,ALANALLUR FOR THE ACADEMIC YEAR 2008-2009 EXT.P7 COPY OF THE STAFF FIXATION ORDER OF KRISHA AIDED LP..SCHOOL,ALANALLUR FOR THE ACADEMIC YEAR 2009-2010 EXT.P8 COPY OF THE GOVERNMENT ORDER,G.O.(RT)1687/14/G.EDN DATED 2-5-2014 EXT.P9 COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER,MANNARKKAD,DATED 8-7-2014 EXT.P10 COPY OF THE JUDGMENT IN WRIT PETITION(C)15498/14, DATED 14-8-2014. ## RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // ## P.A. TO JUDGE ## **DAMA SESHADRI NAIDU, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C)No.29999 OF 2014** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of November, 2014 ## **JUDGMENT** Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents, apart from perusing the record. Since the issue lies in a narrow compass, this Court proposes to dispose of the writ petition at the admission stage itself. 2. Briefly stated, initially the petitioner was appointed as Lower Primary School Assistant on 26.7.2006 in an additional division vacancy in Krishna Aided Lower Primary School, Alanallur. Since the petitioner's appointment was during the subsistence of a ban on recruitment, soon after the lifting of the ban, the Manager of the school executed Ext.P5 bond in terms of G.O.(P)10/10/G.Edn. dated 12.1.2010. Though subsequently approval was granted, it was only from 1.6.2011. Under those circumstances, as a result of the manager's approaching the higher authorities, eventually the Government passed Ext.P8 order specifically directing the second respondent in the following manner: W.P.(C)No.29999 OF 2014 :: 2 :: _“The grievance of the petitioner as per Ext.P10 is that the approval from the date of her first appointment till 31.5.2011 was not granted by the department, even though . Manager executed the bond as per Govt. Order cited 1[st] Hence she has requested to grand approval of her appointment from 26.7.2007 to 31.5.2011._ _According to the Departmental Authorities, the Manager executed the bond as per Govt. Order cited 1[st] expressing his willingness to absorb protected teachers in the school. As such the staff fixation order in the year 2006-07 to 2009-10 has been revised by the Assistant Educational Officer and the same were approved by the District Educational Officer on 22.8.2011. Accordingly staff fixation order was issued by the Assistant Educational Officer as per their proceedings No.D.Dis.D/243/11 dated 20-10-2011 and one post of LPSA has been additionally sanctioned w.e.f. 26.07.2006. Meanwhile Teachers' Package has been introduced as per Govt. Order cited 2[nd] and the name of the petitioner has been included in it and approved w.e.f. 1-62011._ _Government examined the matter in detail. Even though the Manager executed the bond, further action (staff fixation) has been completed on 20.10.2011 only. Meanwhile Government introduced Teachers' Package and she was included in the package. As the Manager has executed the bond, Smt.Sunitha is eligible for getting approval w.e.f. 26.7.2006. In the above circumstances the Deputy Director of Education, Palakkad/District Educational Officer, Palakkad is directed to approve the appointment of Smt.Sunitha.G w.e.f. 26-07-2006 as per rules, by excluding her name from the package._ ” ## 3. Later, the second respondent seems to have delegated the task of implementing Ext.P8 to the first respondent, who in turn passed W.P.(C)No.29999 OF 2014 :: 3 :: Ext.P9 order on 8.7.2014. Through the said order, the petitioner's appointment was approved from 26.7.2006 to 31.3.2007 as Lower Primary School Assistant on daily wage basis; and from 1.6.2007, on regular basis. Aggrieved by the action of the first respondent in approving the petitioner's first phase of appointment on daily wage basis, she has approached this Court. 4. The learned counsel for the petitioner has strenuously contended that in Ext.P8, the Government has given a categoric direction, which is extracted above, and therefore the third respondent himself ought to have implemented the said direction without further delegating it, which, according to the learned counsel, is impermissible. The learned counsel has also contended that in the light of definitive pronouncement by the Honourable Supreme Court in _State of Kerala v. Sneha Cherian (2013 (1) KLT 755)_ , the initial phase of service of the petitioner from 26.7.2006 to 31.3.2007 ought to have been approved on a regular basis, instead of on daily wage basis. Accordingly, the learned counsel has urged this Court to allow the writ petition with a positive direction to the first respondent or the third respondent, as the case may be, to approve the appointment of the petitioner from 26.7.2006 to W.P.(C)No.29999 OF 2014 :: 4 :: 31.3.2007 on a regular basis. 5. _Per contra_ , the learned Government Pleader has submitted that in Ext.P8, the Government eventually directed the third respondent to approve the appointment of the petitioner as per rules. In the interpretation of the authorities, the initial appointment during the ban period ought to be on daily wage basis. Conceding the fact that the Honourable Supreme Court has rendered _Sneha Cheriyan_ in similar circumstances, the learned Government Pleader would contend that the petitioner has an alternative remedy of filing a revision before the 4[th] respondent by invoking Rule 92 Chapter 14A of Kerala Education Rule. It is for the revisional authority to take a decision on the issue of approving the service of the petitioner on regular basis, after taking into account the ratio of _Sneha Cheriyan_ . 6. Indeed, the facts are not in dispute. Fourth respondent issued Ext.P8 setting out in detail the entitlement of the petitioner to have approval on regular basis from the date of her initial appointment. It cannot be, however, denied that the direction, as is the practice, to the third respondent is to approve the petitioner's service as per rules. The third and first respondents cannot be in doubt about the present legal W.P.(C)No.29999 OF 2014 :: 5 :: position concerning the appointment of any teacher during the subsistence of ban period. By Government Orders and subsequently through judgments of the Supreme Court, as well as this Court, it has been made abundantly clear that once the manager has executed a bond and the initial period of appointment during ban period exceeds one academic year, approval shall be on regular basis. At any rate, the law declared by the Supreme Court in terms of Article 142 is the law of the land governing all concerned, including the respondent authorities. I do not, therefore, see any merit in the contention of the respondents that the petitioner shall be relegated to one more round of litigation by taking recourse to revisional remedy under Rule 92 of Chapter 14A of Kerala Education Rule. It is pertinent to observe that even Ext.P8 came to be passed based on an earlier direction of this Court in the judgment in W.P.(C)2076/14 filed by the petitioner. As such in my considered view, the availability of the so called alternative remedy may not come in the way of redressing the grievance of the petitioner in this writ petition. 7. At any rate, there is no cavil about the present statutory and legal position with regard to the approval of the appointment of any W.P.(C)No.29999 OF 2014 :: 6 :: teacher who has been appointed during the ban period. It needs no reiteration presently. 8. In the facts and circumstances, having regard to the respective submissions of the learned counsel for the petitioner and the learned Government Pleader for the respondents, this Court disposes of the writ petition with a direction to the first respondent to approve the services of the petitioner from 26.7.2006 to 30.5.2007 on regular basis by applying the judicial dictum laid down in _Sneha Cheriyan_ and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Writ petition is allowed. **DAMA SESHADRI NAIDU, JUDGE** _jes_