High Court of KeralaSingle Judge2016-10-31Writ petition disposed of with directions to ap...

The Manager, Iype Memorial High School, Kaloor, Muvattupuzha Educational District, Ernakulam District & Nicy Mathew v State of Kerala, represented by its Secretary to Government, Education Department, Secretariat, Thiruvananthapuram; Deputy Director of Education, Ernakulam; District Educational Officer, Muvattupuzha; Director of Public Instructions

Case / Petition Number:WP(C).No. 32106 of 2010 (K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANU SIVARAMAN
Judgment Date: 2016-10-31
Court Decision / Holding: Ext.P6 cancelling Ext.P1 is set aside. The second petitioner’s appointment against the regular vacancy by Ext.P3 with effect from 02.06.2008 shall be approved on a scale of pay. The second petitioner shall be paid all consequential benefits within four months from receipt of a copy of this judgment. Writ petition disposed of as above.
Final Disposition: Writ petition disposed of with directions to approve the second petitioner’s regular appointment against the vacancy from 02.06.2008 on a pay scale and to grant consequential benefits within four months.

Parties to the Case

Appellants / Petitioners

The Manager, Iype Memorial High School, Kaloor, Muvattupuzha Educational District, Ernakulam District
Nicy Mathew, W/o.BIJU, Aged 34 Years, Upper Primary School Assistant, Iype Memorial High School, Kaloor, Muvattupuzha Educational District, Ernakulam District

Respondents

The State of Kerala represented by its Secretary to Government, Education Department, Secretariat, Thiruvananthapuram-695 001
The Deputy Director of Education, Ernakulam, Kakkanad-682 030
The District Educational Officer, Muvattupuzha, Ernakulam District-686 661
The Director of Public Instructions, Jagathy, Thiruvananthapuram- 695 001

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. V.A. Muhammed

Counsels for Respondents

• Smt. Raji T. Bhaskar, Government Pleader

Case Synopsis & Summary

This is a writ petition challenging the cancellation of an appointment and seeking regularization of the second petitioner’s employment in a government-aided school. The 2nd petitioner, Nicy Mathew, was appointed as Upper Primary School Assistant in 2006 against a resignation vacancy, with initial approval on daily wages and later on a pay scale. The Manager’s appointment was argued to be valid as there was no list of protected hands forwarded for the vacancy, and subsequent extensions and shifts to short-term vacancies were approved. The Government later issued Ext.P6 (13.09.2010) cancelling Ext.P1, on the ground that the vacancy should have been filled by a protected teacher and the appointment was irregular. The petition relies on case law including State of Kerala v. Nadeera and Nair Service Society v. State of Kerala, arguing that decisions of this Court require consideration of regularization where a vacancy is involved and where protected hands or tenure conditions apply. The petitioner contends the earlier approvals were proper and should stand, and seeks regularization of the regular vacancy from 02.06.2008 along with consequential benefits.

Provisions of Law Cited

Constitution of India, Article 51A

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the initial appointment of the second petitioner in 2006 against a resignation vacancy was properly made and approved. There was no list of protected hands forwarded to the Manager for that vacancy, and the subsequent shifting to a short vacancy (13.07.2007 to 31.03.2008) was also approved. They rely on this Court’s decisions in State of Kerala v. Nadeera (2013 (2) KLT 88) and Nair Service Society v. State of Kerala (2013 (4) KLT 921) to contend that the earlier appointment could be regularized and that the vacancy arising in 2008 should also be regularized as the petitioner is a 51A claimant. Ext.P6’s cancellation is asserted to be unsustainable in light of these precedents.

Contentions of Respondents

The respondents contend that the initial appointment in 15.09.2006 against a resignation vacancy was irregular since there was no list of protected hands; a protected teacher should have been appointed. They argue the 2010 go orders and audit reports show the appointee was a fresh hand and the post fell under a newly upgraded section. They submit that Ext.P6 cancelling Ext.P1 was proper and that reliance on Nadeera and Nair Service Society should be limited. They also argue that the 51A claim has no bearing on the vacancy and the eight-month rule under Nair Service Society should be applied to determine pay scales.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Nadeera	2013 (2) KLT 88	Positive	Court relied on Nadeera to hold that Ext. P6 findings were unsustainable and that the appointment could be approved in light of the decision.
Nair Service Society v. State of Kerala	2013 (4) KLT 921	Positive	Court relied on Nair Service Society to support that appointments in vacancies lasting eight months or more must be on the scale of pay and thus justify approval.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against The Manager, Iype Memorial High School, Kaloor, Muvattupuzha Educational District, Ernakulam District & Nicy Mathew v State of Kerala, represented by its Secretary to Government, Education Department, Secretariat, Thiruvananthapuram; Deputy Director of Education, Ernakulam; District Educational Officer, Muvattupuzha; Director of Public Instructions and instantly map out authorities that support, challenge, or govern your position.

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 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938** ## **WP(C).No. 32106 of 2010 (K)** ## **-------------------------------------------** **PETITIONER(S) :** - **-------------------------** **1. THE MANAGER, IYPE MEMORIAL HIGH SCHOOL, KALOOR, MUVATTUPUZHA EDUCATIONAL DISTRICT, ERNAKULAM DISTRICT.** **2. NICY MATHEW, W/O.BIJU, AGED 34 YEARS, UPPER PRIMARY, SCHOOL ASSISTANT, IYPE MEMORIAL HIGH SCHOOL, KALOOR, MUVATTUPUZHA EDUCATIONAL DISTRICT, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.V.A.MUHAMMED** **RESPONDENT(S) :** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM, KAKKANAD-682 030.** **3. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM- 695 001.** **BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 32106 of 2010 (K)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 2ND PETITIONER DATED 15.09.2006.** - **EXHIBIT P2: TRUE COPY OF THE G.O(RT.)NO. 3973/2009/G.EDN OF THE GOVERNMENT DATED 22.09.2009.** - **EXHIBIT P3: TRUE COPY OF THE ORDER OF APPOINTMENT OF SRI. JOSHY FRANCIS DATED 02.06.2008.** - **EXHIBIT P4: TRUE COPY OF THE ORDER NO. B2/3660/08/K.DIS OF THE DIST. EDUCATIONAL OFFICER DATED 03.01.2009.** - **EXHIBIT P5: TRUE COPY OF THE ORDER NO. B4/1800/09/K.DIS OF THE DEPUTY DIRECTOR DATED 06.07.2009.** - **EXHIBIT P6: TRUE COPY OF THE G.O.(RT.)NO. 3965/10/G.EDN. OF THE GOVERNMENT DATED 13.09.2010.** - **EXHIBIT P7: TRUE COPY OF THE G.O(P)NO. 104/2008/G.EDN. OF THE GOVERNMENT DATED 10.06.2008.** - **EXHIBIT P8: TRUE COPY OF THE LETTER NO. C-2284/2010/L.DIS OF THE ASST. EDUCATIONAL OFFICER DATED 25.09.2010.** - **EXHIBIT P9: TRUE COPY OF THE DECLARATION OF THE MANAGER DATED 05.01.2010.** - **EXHIBIT P10: TRUE COPY OF THE ORDER NO. B2/1490/11 OF THE DISTRICT EDUCATIONAL OFFICER DATED 28.04.2011.** - **EXHIBIT P11: TRUE COPY OF THE REVISION PETITION FILED BEFORE THE 4TH RESPONDENT BY THE 2ND PETITIONER DATED 30.04.2011** - **EXHIBIT P12: TRUE COPY OF THE ORDER NO. EC 3/35289/2011/DPI/K.DIS OF THE 4TH RESPONDENT DATED 07.02.2012.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R3(A): A TRUE COPY OF THE LETTER NO. B4/12953/07 DATED 06.04.2011 OF THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.** ## **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.32106 of 2010 ----------------------------------------Dated this the 31[st] day of October, 2016 ## JUDGMENT The first petitioner is the Manager of an aided school and the second petitioner is a teacher appointed by the first petitioner. The second petitioner was appointed as U.P.S.A. on 15.09.2006 against a resignation vacancy. The said appointment was approved on daily wages from 15.09.2006 to 31.03.2007 and on a scale of pay from 01.06.2007 onwards. A post of U.P.S.A. was reduced and the second petitioner was shifted to a short vacancy from 13.07.2007 to 31.03.2008. This appointment was directed to be approved by Ext.P2 order of the Government. By Ext.P3, the petitioner was again reappointed against a regular vacancy which arose in that school with effect from 02.06.2008. By Ext.P4, the appointment of the second petitioner from 02.06.2008 was approved subject to declaration of Manager regarding appointment of protected teacher. The appeal W.P.(C) No.32106 of 2010 -2- preferred against Ext.P4 was also rejected on the same ground. The second petitioner took up the matter in revision before the Government. By Ext.P6 order dated 13.09.2010, the Government found that the Manager had initially appointed the second petitioner against a vacancy which should have been filled up only by a protected teacher. It was therefore found that the approval of the teacher on daily wages from 15.09.2006 to 31.03.2007 and on scale of pay from 01.06.2007 was also irregular. The approval for appointment granted by the DEO by Ext.P1 was also cancelled. The second petitioner challenges the said order as well as the earlier orders, rejecting the approval of regular appointment in this writ petition. 2. Heard the learned counsel for the petitioners and the learned Government Pleader appearing for the official respondents. 3. Counter affidavit has been filed by the third respondent stating that the approval granted to the second W.P.(C) No.32106 of 2010 -3- petitioner's initial appointment was due to an oversight and that an audit report of the Deputy Director (Education), Ernakulam found that the appointee is a fresh hand and the school comes within the definition of newly upgraded section, going by the Government Order dated 01.02.2006 and the Manager should have appointed a protected teacher in the vacancy. It is further submitted that a protected teacher was deployed in the school from 23.09.85 and 31.03.2006 and that the second petitioner has no claim for reappointment against the vacancy which arose on 03.06.2008. 4. The learned counsel appearing for the petitioners would submit that there was no list of protected teachers, which was made available to the Manager for appointment against the vacancy which arose on 15.09.2006. In the above circumstances, the appointment of the petitioner in the resignation vacancy which arose on 15.09.2006 was perfectly in order. This appointment was duly approved also. The further appointment shifting the petitioner to a short vacancy W.P.(C) No.32106 of 2010 -4- from 13.07.2007 to 31.03.2008 was also approved. In the above circumstances it is contended that in view of the decision of this Court reported in State of Kerala v. Nadeera [2013 (2) KLT 88] the contention that the earlier period of appointment of the petitioner could not have been approved is completely without merits. It is further contended that the second petitioner would be entitled to approval of appointment in the vacancy which arose on 10.06.2008 also, since the petitioner is 51(A) claimant against the said post. 5. The learned Government Pleader brought to my notice that a decision of this Court reported in Nair Service Society v. State of Kerala [2013 (4) KLT 921], wherein it is stated that appointments in vacancies having a duration of 8 months or above have to be approved in a scale of pay itself. 6. I have considered the contentions advanced by either side. It is admitted that the appointment of the petitioner as U.P.S.A. from 15.09.2006 was approved on daily wages till 31.03.2007 and thereafter from 01.06.2007 in a W.P.(C) No.32106 of 2010 -5- scale of pay. Since it is specifically pleaded that there was no list of protected hands forwarded by the Deputy Director to the first petitioner for appointment as on that date, the second petitioner would clearly be entitled to approval of appointment as has been granted in Ext.P1. The shifting of the second petitioner to a short term vacancy from 13.07.2007 to 31.03.2008 on account of reduction of one post has also been approved. The findings contained in Ext.P6 to the effect that the second petitioner's initial spells of appointment could not have been approved, since no protected teacher was appointed are unsustainable in view of the decision of this Court in Nadeera's case (supra). Further, the rejection of the approval of appointment with effect from 02.06.2008 is also not in order, in view of the decisions of this Court in Nair Service Society's case (supra). In the above circumstances, Ext.P6 order of the Government, cancelling Ext.P1 is set aside. It is further directed that the second petitioner's appointment against the W.P.(C) No.32106 of 2010 -6- regular vacancy by Ext.P3 with effect from 02.06.2008 shall be approved on a scale of pay. The second petitioner shall be paid to all consequential benefits pursuant to the approval of her appointment within a period of 4 months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. Sd/ANU SIVARAMAN, JUDGE vs