Suresh Babu K.M. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939** **WP(C).No. 9904 of 2015 (K) ---------------------------** **PETITIONERS:** - **-----------** **1. SURESH BABU K.M., HSA, VIJAYA H.S.SCHOOL, PULPALLY, WAYANAD.** **2. SHERLY K.A., UPSA, VIJAYA H.S.SCHOOL, PULPALLY, WAYANAD.** **3. TINTU MARIA THOMAS, HSA, VIJAYA H.S.SCHOOL, PULPALLY, WAYANAD.** **4. REJI MATHEW, HSA, VIJAYA H.S.SCHOOL, PULPALLY, WAYANAD.** - **BY ADVS.SRI.AUGUSTINE JOSEPH SRI.K.S.ROCKEY SRI.M.V.ANTONY SRI.TONY AUGUSTINE** **RESPONDENTS:** - **-----------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DISTRICT EDUCATIONAL OFFICER, WAYANAD, KALPETTA-673121.** **3. THE MANAGER, VIJAYA H.S.SCHOOL, PULPALLY, WAYANAD-673579.** **R1 & R2 BY SR. GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 9904 of 2015 (K) ---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1(A)-**|<br>**TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED**| ||**1-6-2009.**| |**EXHIBIT P1(B)-**|<br>**TRUE COPY OF THE REJECTION OF THE APPROVAL OF THE 1ST**| ||**PETITIONER DATED 26-11-2009.**| |**EXHIBIT P2(A)-**|<br>**TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED**| ||**2-6-2008.**| |**EXHIBIT P2(B)-**|<br>**TRUE COPY OF THE REJECTION OF APPOINTMENT DATD 12-11-2008.**| |**EXHIBIT P3(A)-**|<br>**TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED**| ||**2-8-2008.**| |**EXHIBIT P3(B)-**|<br>**TRUE COPY OF THE REJECTION OF APPROVAL BY THE 2ND RESPONDENT**| ||**DATED 10-11-2008.**| |**EXHIBIT P4(A)-**|<br>**TRUE COPY OF THE APPOINTMENT ORDER OF THE 4TH PETITIONER DATED**| ||**2-8-2007.**| |**EXHIBIT P4(B)-**|<br>**TRUE COPY OF THE ORDER DATED 30-10-08 OF THE 2ND RESPONDENT.**| |**EXHIBIT P5-**|**TRUE COPY OF THE ORDER DATED 28-4-2012 FROM THE 1ST**| ||**RESPONDENT.**| |**EXHIBIT P6-**|**TRUE COPY OF THE JUDGMENT IN WPC NO.18062/2012 DATED**| ||**17-10-2012.**| |**EXHIBIT P7-**|**TRUE COPY OF THE JUDGMENT IN WPC NO.7580/2014 DATED**| ||**18-03-2014.**| |**EXHIBIT P8-**|**TRUE COPY OF THE ORDER DATED 23-7-2014 FROM THE 1ST**| ||**RESPONDENT.**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**|| ||**NIL**| **TRUE COPY** **P.S. TO JUDGE** **EL** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.9904 of 2015-K ------------------------------------------- _Dated this the 29[th] day of November, 2017_ ## _**JUDGMENT**_ Proposal for approval for appointments of the 1[st] petitioner, who was appointed as H.S.A (Malayalam) w.e.f 1.6.2009 against an anticipated additional vacancy as per Ext.P1(a), the 2[nd] petitioner, who was appointed as UPSA w.e.f 2.6.2008, the 3[rd] petitioner, who was appointed as H.S.A (English) as per Ext.P3(a) and the 4[th] petitioner, who was appointed as H.S.A w.e.f 2.8.2007, were rejected as per Exts.P1(b), P2(b), P3(b) and P4 (b) respectively, saying that appointments cannot be made in the light of the ban imposed in G.O(P).No.317/2005/G.Edn. dated 17.08.2005. Even though they had approached the appellate and revisional authorities, approval was not granted and subsequently appointments were approved from 1.6.2011 on introduction of teachers' package. 2. The respondents have filed counter affidavit stating that the approval was rejected on the ground of ban imposed by the Government in the Government Order dated 17.8.2005. It is further stated that the Manager did not execute the bond when G.O(P).No.10/10/G.Edn. dt. 01.10.2010 was W.P(C) No.9904 of 2015-K 2 issued. Further it is stated that there were protected teachers available during the academic year 2010-2011. It is also stated that as per G.O(P). No.46/06/G.Edn. dated 1.2.2006, the manager should have appointed at least one protected teacher. 3. I heard the learned counsel for the petitioner and the learned Government Pleader. 4. The objection raised for not approving the appointments are that protected teachers were not appointed and that there was a ban imposed by the Government. Even going by the counter affidavit it is seen that the respondents do not have a case that there were protected teachers available and appointments were made during the years 2008 and 2009. The only contention is that protected hands were available in 2010-11. The availability of the protected teachers in the year 2010-2011 cannot stand in the way of approval of appointment of the petitioners. 5. On consideration of the contentions it is seen that the petitioners were appointed at a time when there was justification for sanctioning the respective posts in which they were appointed. At the same time, the Manager filled up the vacancy in gross disobedience of the orders 3 W.P(C) No.9904 of 2015-K 3 issued by the Government, imposing ban on filling up of vacancy in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA KER, the Manager has to fill up the vacancy in an aided school only in accordance with the rules as well as the orders issued by the Government from time to time. When the ban order issued on 17.08.2005 was in force, the Manager ought not have filled up the additional division vacancies. When the Government lifted the ban conditionally, by issuing G.O.(P) No.10/10/G.Edn dated 12.01.2010, the Manager did not execute any bond agreeing to fill up equal number of vacancies by appointing protected teachers. The Managers of various Schools challenged the order unsuccessfully. It was upheld by this Court by a common judgment dated 16.03.2011 in a batch of writ petitions reported in _**Eravannoor A.U.P. School v. State of Kerala: 2011 (3) KLT SN 89 (C.No. 91)**_ . The Division Bench of this Court affirmed that by the judgment in _**Nair Service Society v. Government of Kerala [2015(2) KLT 625]**_ **.** It was held that the provisions of the Kerala Education Act and rules do not confer any absolute or unbridled right on the Manager of an aided school to make appointment of teachers and that the Managers have to fill up the vacancies strictly in 4 W.P(C) No.9904 of 2015-K accordance with the provisions of the Kerala Education Act, Rules and the executive orders and instructions issued from time to time either by the Government or the Director of Public Instructions, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This Court found that orders banning appointment were perfectly within the competence of the Government. In the meanwhile, the Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011, introducing teachers' package and directing approval of appointment of the teachers, who were continuing without salary, protected hands, etc. with effect from 01.06.2011. Based on those orders, all the teachers including the petitioners, who were continuing in additional division vacancies without approval, got their appointments approved from 01.06.2011. Even though the approval was confined to the period from 01.06.2011, the Government did not take a decision on the question of the service rendered by these teachers prior to 01.06.2011. They have been consistently adopting the stand that the question regarding that would be decided later. The fact that there was justification for sanctioning the posts for their appointments is not disputed. 6. Another objection raised against appointment was based on W.P(C) No.9904 of 2015-K 5 2002 order directing to appoint protected teachers. As the respondents do not have a case that there were any protected teachers available in the year in which the appointments were made, that objection does not survive. 7. The further contention of the learned Counsel for the petitioner is that approval is granted to several teachers on the basis of the directions of this Court in several cases. In the common judgment dated 18.02.2015 in W.P.(C) No.4643 of 2013 and connected cases, a learned Single Judge of this Court directed that if the Manager has not executed the bond, appointments shall be approved with effect from the date of their appointment, treating that the Manager has executed the bond and his obligation to appoint protected teachers is in force. 8. By judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed approval of an appointment made on 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the conditions in the bond. 9. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and consequential 6 W.P(C) No.9904 of 2015-K disbursement of salary to teachers similarly situated. 10. Similar directions are issued in several other cases also and the directions are implemented in most of the cases. Moreover, even now the Government have not taken any decision that the service rendered by the teachers prior to 01.06 2011 should not be recognised for any purpose. Even though amendment was brought about by 2014 amendment Rules in KER denying any benefit of service rendered by the teachers upto 01.06.2011 who got approval from 01.06.2011 under teachers package, that amendment was held unsustainable by this Court in the judgment in **Kerala Aided L. P. and U. P. School, Kollam v. State of Kerala and Another** [ILR 2016 (1) KER 590]. The 1[st] respondent, thereafter issued several orders approving the appointment of such teachers with effect from the date of initial appointment upto 01.06.2011 also. 11. Apart from that, several of these judgments of this Court directing approval of the period of appointment prior to 01.06.2011 are already implemented and several similarly situated teachers got approval and payment of salary towards the pre-June 2011 service in additional division vacancies. W.P(C) No.9904 of 2015-K 7 12. The Division Bench, has, in its judgment dated 27.07.2017 while dismissing the writ appeals W.A.No.2502/2015 affirmed the judgment directing approval reiterating that the Government would be free to enforce the bonded obligation against the Managers treating them as having executed the bonds in terms of G.O.(P).No.10/10/G.Edn dated 12.01.2010 **.** 13. The Government do not have a case that these teachers have not worked or that there were no posts for them for their appointments. Therefore, the case of the petitioners also requires a similar consideration. In this case the Manager, the 3[rd] respondent has not filed any counter affidavit. He did not care to execute the bond as required in G.O.(P). No.10/10/G.Edn dated 12.01.2010. It is not clear whether he challenged the order and got his writ petition dismissed. Once it is found that the Manager appointed the petitioner in gross disobedience to the orders issued by the Government, imposing ban on appointment i.e in violation of the provisions contained in Rule 1 of Chapter XIVA of KER, it is open for the official respondents to take action against the Manager, who is party to this writ petition, in accordance with the provisions in Chapter III Rule 7 of KER and also to enforce the conditions in the bond. 8 W.P(C) No.9904 of 2015-K 14. Therefore the 2[nd] respondent shall issue orders revising the approval in the case of the petitioners for the period prior to 01.06.2011 from the respective dates of their appointments, treating that the Manager has executed the bond as required in G.O.(P).No.10/10/G.Edn dated 12.01.2010. Accordingly, the writ petition is allowed directing the 2[nd] respondent to issue revised orders of approval in the case of the petitioners granting approval to their appointment as per Exts.P1(a), P2(a), P3(a) and P4(a) respectively and to grant them all consequential benefits within a period of three months. Respondents 1 and 2 shall be free to enforce the conditions in G.O.(P).No.10/10/G.Edn dated 12.01.2010 deemed to have been executed, against the 3[rd] respondent. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_