T.S. Sarika (Malayalam) v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945** ## **WP(C) NO. 11442 OF 2011** ## **PETITIONER:** T.S.SARIKA (MALAYALAM), ST.JOSEPH'S HIGH SCHOOL,, CHATHEDOM, ERNAKULAM DISTRICT. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.PETER JOSE CHRISTO SMT.N.SANTHA ## **RESPONDENTS:** 1 STATE OF KERALA AND OTHERS BY THE SECRETARY TO GOVERNMENT,, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,, THIRUVANANTHAPURAM, PIN695 001. 2 DIRECTOR OF PUBLIC INSTRUCTION DIRECTORATE OF PUBLIC INSTRUCTION,, THIRUVANANTHAPURAM, PIN-695 014. 3 DEPUTY DIRECTOR EDUCATION ERNAKULAM, KAKKANAD, PIN-682 030. 4 DISTRICT EDUCATIONAL OFFICER ALUVA, PIN-683 101. 5 CORPORATE EDUCATIONAL AGENCY DIOCESE OF KOTTAPPURAM, KOTTAPPURAM P.O.,, KODUNGALLUR, PIN-680 667, REPRESENTED, BY THE CORPORATE MANAGER. BY ADVS. ## **OTHER PRESENT:** GP - SUNILKUMAR KURIAKOSE **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** : 2 : W.P.(C). No.11442 of 2011 ## **VIJU ABRAHAM, J.** **==> picture [349 x 26] intentionally omitted <==** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of June, 2023 ## **JUDGMENT** The above writ petition is filed aggrieved by Exts.P6 and P14, to the extent it did not approve the appointment of the petitioner as HSA(Malayalam) with effect from 02.06.2008. 2. As per Ext.P1 order, the petitioner was appointed as HSA (Malayalam) w.e.f. 02.06.2008, in St. Joseph's School, Chathedom, under the 5[th] respondent Corporate Educational Agency, in the retirement vacancy of one Smt. M. L. Alphonsa, HSA(Malayalam), who retired on 31.03.2008. Pursuant to Ext.P1, the petitioner joined duty on 02.06.2008 and is continuing as HSA(Malayalam) since then. When the proposal for approving her appointment was submitted by the Manager to the District Educational Officer, Aluva, the same was rejected as per Ext.P2 order on the ground that the school in which the petitioner was appointed was a newly upgraded one and the post had to be filled up by appointing a protected teacher. The appeal preferred by the Manager before the Deputy Director (Education), Ernakulam was rejected by Ext.P4 order. Against which a revision petition was filed by the Manager W.P.(C). No.11442 of 2011 : 3 : before the Government. The Government, after considering the contentions raised, disposed of the same as per Ext.P6 order, whereby a direction was issued to the District Educational Officer, Aluva to approve the appointment of the petitioner w.e.f. 04.06.2010 on a daily wage basis and from 01.06.2011, on regular basis. It is pertinent to note that in Ext.P6, the Government has taken note of the report of the Deputy Director of Education, Ernakulam that there were 3 protected HSA(Malayalam) teachers available in the revenue district at the time of appointment of the petitioner and they were deployed to various newly opened/upgraded schools during the academic year 2008-09 itself and that the third protected HSA(Malayalam) teacher was deployed to M.C.M. H.S.S. Pattimattom on 03.12.2008. The petitioner contended that the appointment of the petitioner was directed to be approved even during the academic year 2010-11 on daily wage basis w.e.f. 04.06.2010, for the reason that the protected teacher who was deployed to the school as per Ext.P9 had joined duty only on 04.06.2010 and the vacancy to which the petitioner was accommodated was one of less than one year's duration. The specific case of the petitioner is that in case of many teachers similarly situated like her, Government had granted approval of W.P.(C). No.11442 of 2011 : 4 : their appointments by relaxing rules, as is evident from Exts. P11 and P11(a). When the petitioner came to know about the issuance of Exts.P11 and P11(a), she has approached the Government by submitting Ext.P12 representation dated 17.01.2011 enclosing Ext.P13 Government letter, wherein the Government has directed to approve the appointment of a teacher of HMT Education Society School, taking note of the report by the departmental authorities that at the time appointment of the incumbent therein, there were no protected teacher available in the district as on the date of her appointment. Ext.P12 was considered by the Government and was disposed of as per Ext.P14 order, wherein direction was issued to the District Educational Officer, Aluva to approve the appointment of the petitioner as HSA(Malayalam) at St.Joseph's High School, Chathedom, Ernakulam w.e.f. 04.06.2010, ie., the date of joining of the protected teacher, on a regular basis, if she is eligible as per existing Rules and orders, and Ext.P6 order was modified to the said extent. The petitioner submits that even before the issuance of Ext.P14 order, the appointment of the petitioner had been approved w.e.f. 04.06.2010 in the light of G.O. (P) No.56/11/GEdn dated 26.02.2011, by which it is ordered among other things that appointments for period exceeding 8 months in an : 5 : W.P.(C). No.11442 of 2011 academic year can be approved as regular (on a scale of pay). Case of the petitioner is that the Government without assigning any reasons, did not extend the same benefit, that was granted to the applicant in Ext.P13 Government letter. The petitioner relies on the Division Bench Judgment in _**State of Kerala v. Nadeera [2013 (2) KLT 88],**_ wherein, this Court while considering applicability of the Circular dated 19.11.2009 held that, this Circular can only be prospective and therefore, if the list of protected teachers was not furnished by the Department to the Management, there is no liability on the Managers to appoint a protected teacher and therefore, there is no justification on the part of the Department in approving the appointment of the petitioner only from the date on which the protected teacher was appointed. The petitioner submits that the decision in _**Nadeera'**_ s case(Supra) would squarely apply to the facts and circumstances of this case. 3. The learned Government Pleader, based on the counter affidavit submits that till the receipt of a protected teacher in the school concerned, based on the G.O.(P)No.46/2006/G.Edn., dated 01.02.2006, the appointments can be considered on a daily wages basis. W.P.(C). No.11442 of 2011 : 6 : 4. A perusal of Ext.P6 would reveal that at the time of appointment of the petitioner, there was only three protected teachers and the last of them was deployed and given appointment on 03.12.2008. It is also not in dispute that as on 03.12.2008, there was no protected teacher available for being appointed in the district concerned. The Government has no case in the counter affidavit that the list of protected teachers have been forwarded to the Manager. In view of the said factual situation, going by the dictum laid down in _**Nadeera**_ 's case (Supra), I am of the opinion that there is no liability on the part of the Manager to appoint a protected teacher, without a list being supplied by the Department. Therefore, the non-approval of the petitioner with effect from 02.06.2008 cannot be sustained. Since the Department has not forwarded the list of protected teachers to the Manager,I am of the opinion that the appointment of the petitioner is liable to be approved with effect from 02.06.2008 onwards. Therefore, Exts.P6 and P14 orders to the the extent it did not approve the appointment of the petitioner from 02.06.2008 are hereby set aside, with a consequential direction to respondents 1 to 4 to approve the appointment of the petitioner with effect from 02.06.2008 and grant all consequential benefits. Respondents 1 to 4 shall finalise W.P.(C). No.11442 of 2011 : 7 : the proceedings in this regard, within a period of three months from the date of receipt of a copy of this judgment. With the above said direction, the writ petition is disposed of. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.11442 of 2011 : 8 : ## **APPENDIX OF WP(C) 11442/2011** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1:|TRUE COPY OF THE ORDER NO.17/08 DATED| ||26.5.2008 OF THE 5TH RESPONDENT.| |EXHIBIT P2:|TRUE COPY OF THE ORDER NO.B5/5381/| ||08/K.DIS. DATED 1.11.2008 OF THE 4TH| ||RESPONDENT.| |EXHIBIT P3:|TRUE COPY OF THE APPEAL SUBMITTED BY THE| ||PETITIONER BEFORE THE DEPUTY 3RD| ||RESPONDENT DATED 15.11.2008.| |EXHIBIT P4:|TRUE COPY OF THE ORDER NO.B3/25923| ||08/K.DIS DATED 3.2.2009 OF THE 3RD| ||RESPONDENT| |EXHIBIT P5:|TRUE COPY OF THE REVISION PETITION DATED| ||30.3.2009 FILED BY THE CORPORATE MANAGER| ||BEFORE THE GOVERNMENT WITHOUT ITS| ||ENCLOSURES.| |EXHIBIT P6:|TRUE COPY OF THE G.O.(RT) NO.5791/| ||2010/G.EDN.DATED 29.12.2010.| |EXHIBIT P7:|TRUE COPY OF THE LETTER NO.CEA-17/08 DATED| ||30.6.2010 OF THE MANAGER WITHOUT ITS| ||ENCLOSURES.| |EXHIBIT P8:|TRUE COPY OF THE LETTER NO.CEA-8/10 DATED| ||05.05.2010 OF THE MANAGER TO THE DEPUTY| ||DIRECTOR (EDUCATION), ERNAKULAM.| |EXHIBIT P9:|TRUE COPY OF THE ORDER NO.B4/12953/07| ||DATED 28.05.2010 OF THE 3RD RESPONDENT.| |EXHIBIT P10:|TRUE COPY OF THE G.O. (P) NO.56/11 /G.EDN.| ||DATED 26.02.2011.| |EXHIBIT P11:|TRUE COPY OF THE G.O.(RT) NO.975/| ||06/GL.EDN. DATED 3.3.2006.| |EXHIBIT P11(A):|TRUE COPY OF THE G.O.(RT) NO.| ||1907/06/GL.EDN. DATED 10.5.2006.| |EXHIBIT P12:|TRUE COPY OF THE REPRESENTATION DATED| ||17.1.2011 SUBMITTED BY THE PETITIONER| ||BEFORE THE HON'BLE MINISTER FOR EDUCATION.| |EXHIBIT P13:|TRUE COPY OF THE GOVERNMENT LETTER| ||NO.5576/E3/2010/G.EDN. DATED 2.7.2010.| |EXHIBIT-P14:|TRUE COPY OF G.O. (RT) NO.| ||87/2012/G.EDN. DATED 05.01.2012.| |EXHIBIT-P15|TRUE COPY OF G.O.(RT) NO.465/2014/G.EDN.| ||DATED 29.01.2014| |EXHIBIT P16|TRUE COPY OF G.O.(RT) NO.1474/2019/GEDN| ||DATED 26.04.2019| W.P.(C). No.11442 of 2011 : 9 : EXHIBIT P17 TRUE COPY OF THE ORDER NO.B1-3208/19/DDIS DATED 29.05.2019 OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM.