T. Nicy Baby v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **WP(C).No.28866 OF 2012(G)** ## **PETITIONER:** **T.NICY BABY, AGED 30 YEARS, W/O.ABHILASH P.VARGHESE, LOWER PRIMARY SCHOOL ASSISTANT, N.L.P.SCHOOL (NATIONAL LOWER PRIMARY SCHOOL), MANALY, KECHERY, THRISSUR DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED K.E.HAMSA** ## **RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT-680506. 3 THE ASSISTANT EDUCATIONAL OFFICER, KUNNAMKULAM-680 503, THRISSUR DISTRICT. 4 THE MANAGER, N.L.P.SCHOOL, MANALY, KECHERY-680501, THRISSUR DISTRICT. 5 SMT.PRAJEESH THAMBI, LOWER PRIMARY SCHOOL ASSISTANT, N.L.P.SCHOOL, MANALY, KECHERY – 680 501, THRISSUR DISTRICT.** **BY ADVS. SRI.T.ISSAC SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.28866 OF 2012(G)** **-2-** ## **JUDGMENT** **Dated this the 15th day of January 2021** The petitioner says that she was appointed as a Lower Primary School Assistant (LPSA) in the National Lower Primary School, Kechery, Thrissur - of which the 4[th] respondent is the Manager - and that she was accommodated against an additional division vacancy for the academic year 2006 - 2007. 2. She says that she has been continuing in service without break ever since 05.06.2002 and that on account of the retirement of the Headmistress of the School on 31.03.2010, a vacancy of Lower Primary School Assistant arose w.e.f. 01.06.2010 and that she ought to have been adjusted against the said vacancy in view of the various ## **WP(C).No.28866 OF 2012(G)** **-3-** judgments, including in **Geetha S. v. Geo Thomas K. and Others [2009 (4) KHC 296 (DB)]** . She alleges that the Manager, however, did not do so, but that he appointed the 5[th] respondent and contends that this is against Rule 51A Chapter XIVA of the Kerala Education Rules (KER). 3. The petitioner says that she, therefore, moved the 3[rd] respondent - Assistant Educational Officer at first, but that when it was rejected, she was constrained to file a statutory Revision before the Government, followed by W.P. (C).No.3303/2011 before this Court, which had been disposed of with a direction to the Government to consider and dispose of the said Revision. 4. The petitioner says that in purported compliance of the directions of this Court, the Government has now issued Ext.P10 order, **WP(C).No.28866 OF 2012(G)** **-4-** rejecting the proposal for approval of her appointment w.e.f. 05.06.2002, solely for the reason that the Manager has not executed a bond, as is required under G.O.(P) No.10/10/G.Edn dated 12.01.2010. 5. The petitioner, therefore, prays that Ext.P15 be set aside, particularly because, in similar circumstances, this Court has issued Ext.P14 judgment, directing consideration of the claim of the petitioners therein - who are similarly situated - affirmatively in terms of the directions in G.O.(P).No.10/10/G.Edn 12.01.2010. 6. Sri.P.M.Manoj - the learned Senior Government Pleader, submitted that a counter affidavit has been filed on behalf of the first respondent, wherein, it has been averred that the fourth respondent had appointed the petitioner in an anticipated additional division vacancy w.e.f. ## **WP(C).No.28866 OF 2012(G)** **-5-** 05.06.2006, which was, however, rejected because the proposal had not been submitted within the time stipulated as per Rule 8(1) Chapter XIVA of the KER. He affirmed that a vacancy arose in the School subsequently, on account of the retirement of the Headmistress and that it was filled up by promoting the senior most LPSA, which give rise to a vacancy in such post. 7. The learned Senior Government Pleader submitted that the 4[th] respondent - Manager instead of appointing the petitioner in the afore mentioned vacancy, appointed the 5[th] respondent, who was a fresh hand, which led the petitioner to approach this Court by filing W.P.(C). No. 31331/2010 seeking approval, and same was disposed of with a direction to the 3[rd] respondent to consider her representation. He submitted that the 3[rd] respondent, pursuant to the afore directions, ## **WP(C).No.28866 OF 2012(G)** **-6-** conducted a hearing and issued orders rejecting the appointment of the 5th respondent as LPSA, because it had been made over-looking the rightful claim of the petitioner. He concluded his submissions by saying that the Government has gone through all the relevant aspects and inputs that are applicable and found that since the petitioner was appointed in anticipated additional vacancy and since the said vacancy was not sanctioned - the Manager having not executed the bond as stipulated in G.O. (P).No.10/10/G.Edn dated 12.01.2010 - her approval could not be granted, since there was no sanctioned post to accommodate her w.e.f. 05.06.2006. He, therefore, prayed that this writ petition be dismissed. 8. I have considered the afore submissions of the learned Senior Government Pleader very carefully and have also examined **WP(C).No.28866 OF 2012(G)** **-7-** the various materials available on record. 9. It is evident from the impugned orders that the petitioner's approval has not been granted solely because the Manager of the School had not executed a bond in terms of G.O.(P).No.10/10/G.Edn dated 12.01.2010. However, it is without doubt that this Court has, in a catena of judgments, directed consideration of the approval of appointments in such similar matters, deeming that the Manager had executed a bond in terms of the afore-mentioned Government Order. The Educational Authorities, however, has not done so, and have rejected the petitioner's approval merely on the ground that no such bond has been executed by the Manager. 10. I am, therefore, certainly of the view that the impugned orders are improper, particularly when the question of the Manager deemed to have executed a bond has not been ## **WP(C).No.28866 OF 2012(G)** **-8-** considered by the Authorities until now. Consequently, I am of the firm view that the petitioner is entitled to have her case considered on such terms. In the afore circumstances and for the reasons above, I allow this writ petition and set aside Ext.P15 Government Order; with a consequential direction to the competent Secretary of the Government to reconsider the Revision of the petitioner, after affording her, as well as the Manager an opportunity of being heard - either physically or through video conferencing - thus culminating in an appropriate order thereon, as expeditiously as possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, while completing the afore exercise, the Secretary of the Government will advert to the impact of **WP(C).No.28866 OF 2012(G)** **-9-** G.O.(P).No.10/10/G.Edn dated 12.01.2010, and will be at liberty, subject to his version, to deem that the Manager has executed the bond in terms of the said Government Order. After I dictated this judgment, the learned counsel for the petitioner submitted that since the petitioner is a Rule 51A claimant, it may not be necessary for the Manager to execute a bond in terms of the aforementioned Government Order. Needless to say, if the petitioner is found to be a Rule 51A claimant, as is claimed by her through Ext.P1 - on account of the prior approved service - then this contention will also be kept in mind by the Secretary concerned, while the afore mentioned exercise is completed. ## **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C).No.28866 OF 2012(G)** **-10-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER 20062007 DATED 28/11/2006.** **EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER 20072008 DATED 06/11/2007.** **EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER 20082009 DATED 07/10/2008. EXHIBIT P5 TRUE COPY OF THE GO(MS) NO.275/99/G.EDN. DATED 09/11/1999 OF THE GOVERNMENT. EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 2009(4)KHC 296 DATED 30/09/2009. EXHIBIT P7 TRUE COPY OF THE APPEAL FILED BEFORE THE 3RD RESPONDENT DATED 24/09/2010. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO.31330/2010 OF THIS HON'BLE COURT DATED 19/10/2010. EXHIBIT P9 TRUE COPY OF THE ORDER NO. E-3243 / 2010/K.DIS. DATED 27/11/2010 OF THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 07/12/2010. EXHIBIT P11 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 05/06/2006. EXHIBIT P12 TRUE COPY OF THE ORDER NO. E-6223/2011 DATED 28/12/2011 OF THE 3RD RESPONDENT. EXHIBIT P13 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 20/06/2012. EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.3303/2011 DATED 27/06/2012. EXHIBIT P15 TRUE COPY OF THE GO(RT) NO.5377/2012/G.EDN. DATED 09/11/2012 OF THE GOVERNMENT.** **WP(C).No.28866 OF 2012(G)** **-11-** **EXHIBIT P16 TRUE COPY OF THE GO(RT) NO.622/11/G.EDN. DATED 14/02/2011 OF THE GOVERNMENT.** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE