Two writ petitions: Nitha Jose and others v State of Kerala and others; Manju George K v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.19568 OF 2018(U)** ## **PETITIONERS:** - **1 NITHA JOSE, WIFE OF JOY RAPHAEL, AGED 38 YEARS, HIGH SCHOOL ASSISTANT(ENGLISH), HIGH SCHOOL, THIRUVALAYANNUR, KALLUR - VADAKKEKAD, THRISSUR DISTRICT.** - **2 S.A SRIJA, WIFE OF JOBY VARGHESE, AGED 32 YEARS, HIGH SCHOOL ASSISTANT(ENGLISH), HIGH SCHOOL, THIRUVALAYANNUR, KALLUR - VADAKKEKAD, THRISSUR DISTRICT.** - **3 P. RAJANA ANTO, HIGH SCHOOL ASSISTANT (ENGLISH), HIGH SCHOOL THIRUVALAYANNUR, KALLUR - VADAKKEKAD, THRISSUR DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE - II, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY THIRUVANANTHAPURAM - 695 -014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE - 680 003, THRISSUR DISTRICT.** - **4 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD - 680 506, THRISSUR DISTRICT.** - **5 THE MANAGER, HIGH SCHOOL, THIRUVALAYANNUR, KALLUR - VADAKKEKAD - 679 562, THRISSUR DISTRICT.** **WP(C).Nos.19568 & 28245 OF 2018** **-2-** **6 THE HEADMASTER, HIGH SCHOOL, THIRUVALAYANNUR, KALLUR - VADAKKEKAD - 679 562, THRISSUR DISTRICT.** - **7 SMT. MANJU GEORGE, HIGH SCHOOL ASSISTANT(ENGLISH), HIGH SCHOOL THIRUVALAYANNUR, KALLUR – VADAKKEKAD, THRISSUR DISTRICT - 679 562.** **BY ADVS. DR.GEORGE ABRAHAM SRI.U.BALAGANGADHARAN SRI.P.M.MANOJ, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.01.2021, ALONG WITH WP(C).28245/2018(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.19568 & 28245 OF 2018** **-3-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.28245 OF 2018(E)** ## **PETITIONER:** **MANJU GEORGE K, AGED 33 YEARS, W/O. DEJO JOHN, HIGH SCHOOL ASSISTANT (ENGLISH), HIGH SCHOOL, THIRUVALAYANNOOR, TRICHUR, RESIDING AT ARAKKAL HOUSE, PARAPPUR, TRICHUR-680 552.** **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM- 695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, TRICHUR- 680001.** - **4 DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, TRICHUR-680506.** - **5 THE MANAGER, H.S.THIRUVAYANNUR, TRICHUR- 680001.** - **6 NITHA JOSE, W/O.JOY RAPHEAL, IYNIKKAL HOUSE, CHIYYARAM, THRISSUR- 680026.** - **7 SRIJA S.A., SANKARANTHODITHIL HOUSE, P.O. POOTHOLE, TRICHUR- 680004.** - **8 SMT.RAJANA ANTO P., PULIKKOTTIL HOUSE, P.O.CHITTATTUKARA, TRICHUR, PIN – 680511. BY ADVS. SRI.MATHEW KURIAKOSE SRI. V.A. MUHAMMED SRI. M. SAJJAD SRI.P.M.MANOJ, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.01.2021, ALONG WITH WP(C).19568/2018(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.19568 & 28245 OF 2018** **-4-** ## **JUDGMENT** ## **[ WP(C).19568/2018, WP(C).28245/2018 ] Dated this the 12th day of January 2021** The singular question in these two cases - which are being considered together on account of similarity in the factual circumstances pleaded and reliefs sought for - is, who among the petitioners are entitled to be appointed to the vacancy of High School Teacher (HST) in HS Thiruvalayannur, Thrissur, that arose on 01.06.2015. 2. While the petitioner in W.P.(C) No.28245 of 2018 - Smt.Manju George K. has been appointed to the afore said vacancy; the petitioners in W.P.(C) No.19568 of 2018 - Smt.Nitha Jose, Smt.S.A.Srija and Smt.P.Rajana Anto - stake claim to it, asserting that they had been earlier appointed in the School in the year 2007, much before Smt.Manju George K. had been so appointed, though admitting that none of **WP(C).Nos.19568 & 28245 OF 2018** **-5-** such appointments had obtained approval from the Competent Educational Authorities. 3. Smt.Manju George, in W.P.(C) No.28245 of 2018, seeks that the Educational Authorities be directed to grant her approval with effect from 01.06.2015; while Smt.Nitha Jose and the others impugn Ext.P7 in W.P.(C) No.19568 of 2018, whereby, the Deputy Director of Education, Thrissur, has ordered approval to Smt.Manju George, provided there are no other legal impediments in doing so. 4. Smt.P.A.Jenzia - learned counsel appearing for Smt.Nitha Jose and two others, asserted that her clients have been appointed by the Manager of the School in the year 2007, but that these appointments were not granted approval by the Competent Educational Authorities, citing the reason that there was a ban ordered by the Government in making appointments at the relevant time. She contends that, therefore, when a vacancy arose in the ## **WP(C).Nos.19568 & 28245 OF 2018** **-6-** School in the year 2015, her clients were entitled to be considered for appointment by the Manager in preference to Smt.Manju George K., whose initial tenure in the School concededly began only in the year 2008, which was also, however, not approved for the same reason as afore. Smt.P.A.Jenziya, therefore, prays that Ext.P7 in W.P.(C)No. 19568 of 2018 be set aside and the Educational Authorities be directed to consider granting approval to her clients to the vacancy in question. 5. Contrary to this, Sri. U.Balagangadharan, learned counsel appearing for Smt.Manju George K, predicated that Smt.Nitha Jose and other teachers cannot claim any preferential rights for being appointed to the vacancy that arose in the year 2015, because none of them can be construed to be claimants under Rule 51A Chapter XIVA of the Kerala Education Rules, 1959(hereinafter referred to as 'the KER'). He submitted that, as is evident ## **WP(C).Nos.19568 & 28245 OF 2018** **-7-** from Ext.P5, his client was offered appointment by the Manager because Smt.Nitha Jose and other two teachers did not appear before him for being considered for selection, when it was conducted in that year. He further submitted that it is only consequent to this that Ext.P2 appointment order was issued to his client and, therefore, that the Educational Authorities are bound to approve the same; and thus prayed that Ext.P6 in W.P.(C)No.28245 of 2018 (which is the same as Ext.P7 in W.P.(C)No.19568 of 2018) be directed to be implemented by the Officer concerned. 6. Sri.U.Balagangadharan added to the above submissions by saying that Smt.Nitha Jose and two teachers cannot, in any event, obtain any right to stake claim over his client because their subsequent appointments in the year 2016 have been rejected through Exts.P9, P10 and P11 orders produced in W.P.(C)No.28245 of 2018; and that since these orders have not been challenged by Smt.Nitha Jose and two others, their **WP(C).Nos.19568 & 28245 OF 2018** **-8-** contentions impelled in W.P.(C) No.19568 of 2018 would have no legs to stand on. He concluded his submissions by taking me through Ext.P17, in W.P.(C)No.28245 of 2018, wherein, the Additional Director of General Education has recorded that on account of the pendency of these writ petitions approval of his client's appointment cannot be considered and therefore, prayed that said authority be ordered to grant this benefit to his client at the earliest. 7. Dr.George Abraham, learned counsel appearing for the Manager of the School, submitted that counter pleadings have been filed by his client in both these cases, wherein, it has been explained that all the teachers involved in these cases deserve to be approved from the date of their appointments in the year 2015 and 2016 because vacancies to accommodate all of them were available. As regards the internecine dispute between Smt.Manju George K., on one side and Smt.Nitha Jose and two others on ## **WP(C).Nos.19568 & 28245 OF 2018** **-9-** the other, he submitted that, as is rightly stated in Ext.P5 in W.P.(C) No.28245 of 2018, when the vacancy in question arose in the year 2015, even though he was not obligated to issue notice to any of the teachers under Note 2 to Rule 51A of the KER - none of them being eligible to be construed as a claimant under the said Rule, their earlier appointments having been already denied approval - he had invited each of them for being considered for appointment, but that Smt.Nitha Jose and two others had declined on account of personal reasons. He submitted that his client, therefore, had no other option, taking note of the best interests of the School and its students, to appoint Smt.Manju Goerge K., and thus prayed that her appointment be directed to be approved with effect from 01.06.2015; however, adding that, as stated above, appointments of Smt.Nitha Jose and two others with effect from 01.06.2016 are also deserving ## **WP(C).Nos.19568 & 28245 OF 2018** **-10-** of being granted such benefit, since vacancies for such purpose are also available. 8. Dr.George Abraham concluded his submissions by asserting that the contents of Exts.P9, P10 and P11 - produced by Smt.Manju George K. in W.P.(C)No.28245 of 2018 - as per which, appointments of Smt.Nitha Jose and two others have been declined, are factually inaccurate and, therefore, prayed that this Court may direct the Competent Educational Authority to approve the said appointments also. – 9. Sri.P.M.Manoj learned Senior Government Pleader, in answer to the above submissions, argued that the Concerned Educational Authorities are now incapacitated to take any decision in these matters on account of the pendency of these cases, particularly because the parties are at dissonance with each other as to who should be appointed to the vacancy that arose in the year 2015. He submitted that since all of them claim such ## **WP(C).Nos.19568 & 28245 OF 2018** **-11-** appointment on the strength of their earlier service in the School in the years 2007 and 2008, the question as to who among them would be eligible, under the provisions of Rule 51A of the KER, is a vexed one, since, going by the declarations of this Court in **Poornima v.** **Department of Public Instructions [2005(3)KLT 502]** even when such appointments are not approved, their claims will have to be assessed based on their initial date of appointment. The learned Senior Government Pleader, therefore, prayed that this Court may dismiss both these writ petitions and allow the Deputy Director of General Education to take a final decision on all these aspects, based on all the relevant aspects and documents available on record. 10. The afore narration of facts make it limpid that the petitioners in both these cases are now not seeking approval for their appointments, which were initially offered to them, in the years 2007 and 2008. **WP(C).Nos.19568 & 28245 OF 2018** **-12-** Smt.Nitha Jose and two others - who are the petitioners in W.P.(C)No.19568 of 2018 - seek the benefit of their appointment in the year 2007 only to claim preference over Smt.Manju George K., with respect to the vacancy that arose in the year 2015. Their specific contention, as impelled by the learned counsel, Smt.P.A.Jenzia, is that **Poornima (supra)** makes it indubitable that while applying Rule 51A Chapter XIVA of the KER, what is relevant is the date of first appointment and not the date on which such appointment is approved. Smt.P.A.Jenzia then also adds that this is more so in this case because the sole reason while appointments of her clients in the year 2007 had not been approved is because there was a ban of making such appointments during the relevant period. 11. Of course, the above contention of Smt.P.A.Jenzia is countered by Sri.U.Balagangadharan by showing me Ext.P15 ## **WP(C).Nos.19568 & 28245 OF 2018** **==> picture [30 x 9] intentionally omitted <==** produced in W.P.(C)No.28245 of 2018, which rejected the approval of Smt.Nitha Jose and two others holding that there were no vacancies in the School in the year 2007. 12. Therefore, as matters now stand, it is luculent that even though appointments of Smt.Nitha Jose and two others have been rejected through Exts.P9, P10 and P11 orders - produced in W.P.(C)No.28245 of 2018, approval of Smt.Manju George K. has not been concluded by the Assistant Director of General Education even in Ext.P17 order, and she says that this is only because these writ petitions are pending. 13. I am, therefore, of the firm view that the petitioners in W.P.(C)No.19568 of 2018, namely Smt.Nitha Jose and two others, must be given an opportunity of filing a Revision under Rule 8A Chapter XIVA of the KER before the Director of General Education against Exts.P9, P10 and P11 - particularly because the Manager says that there are vacancies in the School to ## **WP(C).Nos.19568 & 28245 OF 2018** **-14-** accommodate their appointments made in the year 2016 - so that said Authority can consider the same, along with the proceedings pending before him with respect to Smt.Manju George K. 14. I am of the firm view that if this is done, the Director of General Education will obtain a panoptic view of the entire situation so as to enable him to decide who among the petitioners in these cases is entitled to be appointed to the vacancy of HST that arose in the year 2015; resultantly leading to a further decision as to their appointments in the year 2016, based on availability of vacancies. Resultantly and for the reasons afore, I order these writ petitions in the following manner: a) W.P.(C)No.19568 of 2018 is ordered, allowing the petitioners to file statutory revisions against the orders of the District Educational Officer rejecting their approval - namely Ext.P9, P10 and P11 produced along with **WP(C).Nos.19568 & 28245 OF 2018** **==> picture [30 x 9] intentionally omitted <==** W.P.(C)No.28245 of 2018 - and if this is done within a period of seven days from the date of receipt of a copy of this judgment, it will be construed to be filed competently and within time. b) W.P.(C)No.28245 of 2018 is ordered, directing the Director of General Education to consider the proposal for approval of Smt.Manju Goerge K., along with the Revision/s to be filed by Smt.Nitha Jose and two others in terms of my directions above, after deciding as to who among them is entitled to be appointed to the vacancy of HST that arose in the year 2015. It shall also be decided by the said Authority whether other teachers can be adjusted and approved against the appointments made or to be made for the year 2016, based on availability of adequate number of vacancies, which is affirmatively so asserted by the Manager. **==> picture [369 x 12] intentionally omitted <==** exercise, I set aside Ext.P7 in W.P.(C)No.19568 ## **WP(C).Nos.19568 & 28245 OF 2018** **-16-** of 2018, leaving liberty to the Director of General Education to consider the approval of Smt.Manju George K, _dehors_ Ext.P17 in W.P. (C)No.28245 of 2018. d) It is needless to say that, while completing the exercise ordered above, the Director of General Education must consider the relative claims of the petitioners, which is edificed on Rule 51A Chapter XIVA of the KER. Of course, the parties are at liberty to cite precedents of their choice before the said Authority for this purpose, who will consider the same also while taking a decision. e) The Director of General Education will complete the afore exercise and issue appropriate orders, after affording an opportunity of being heard to the petitioners in both these cases, as also the Manager of the School - either physically or through video conferencing - as expeditiously as is possible, but not later than three months from the date of **WP(C).Nos.19568 & 28245 OF 2018** **-17-** receipt of a copy of this judgment. After I dictated the judgment, Sri.U.Balagangadharan submitted that some provision may be made in the judgment in the event Smt.Nitha Jose and two others do not file their Revision/s, in terms of the liberty in direction 'a' above. Though I see no reason why these teachers would not file their Revision/s, I clarify that if they do not do so, then the Director of General Education will consider the approval of Smt.Manju George K. in terms of law, without any further delay, thereafter. ## **Sd/-** **DEVAN RAMACHANDRAN JUDGE** akv **WP(C).Nos.19568 & 28245 OF 2018** **-18-** ## **APPENDIX OF WP(C) 19568/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 14.06.2007 EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 4.7.2007.** - **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 02.06.2008.** - **EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER IN WP(C) NO.10349/2011 DATED 12.05.2015.** - **EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER IN IA 6233/2015 IN W.P(C) NO. 10349/2011 DATED 04.04.2017.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C)NO. 10349/2011 DATED 24.10.2017** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO. B4/ 22584/ 2017/K.DIS DATED 16.05.2018 OF THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN W.P. (c)NO.28032 OF 2012(D) DATED 10.4.2017.** - **EXHIBIT P9 TRUE COPY OF THE G.O.(Rt) NO.4919/2014/ G.EDN. DATED 11.11.2014.** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO.F1/53423/2014/DPI/R.DIS.DATED 19.09.2014.** - **RESPONDENT'S/S EXHIBITS :** **EXHIBIT R7(a) APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT DATED 01.06.2016 TO PETITIONER NO.2. EXHIBIT R7(b) APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT DATED 01.06.2016 TO PETITIONER NO.3.** **EXHIBIT R7(c) A TRUE COPY OF THE ORDER DATED 28.9.2017 OF THE DEO IN RESPECT OF 1ST PETITIONER.** **WP(C).Nos.19568 & 28245 OF 2018** **-19-** **EXHIBIT R7(d) A TRUE COPY OF THE ORDER DATED 26.9.2017 OF THE DEO IN RESPECT OF 2ND PETITIONER.** **EXHIBIT R7(e) A TRUE COPY OF THE ORDER DATED 18.04.18 OF DDE IN RESPECT OF 3RD PETITIONER.** **EXHIBIT R7(f) A TRUE COPY OF THE ORDER DATED 2.6.2008 ISSUED BY THE MANAGER TO 7TH RESPONDENT. EXHIBIT R7(g) A TRUE COPY OF THE STATEMENT OF THE MANAGER DATED 10.11.2017 TO DDE.** //TRUE COPY// P.A. TO JUDGE **WP(C).Nos.19568 & 28245 OF 2018** **-20-** ## **APPENDIX OF WP(C) 28245/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF APPOINTMENT ORDER DATED 02.06.2008 ISSUED BY 5TH RESPONDENT TO PETITIONER.** **EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2015 ISSUED BY 5TH RESPONDENT TO PETITIONER.** **EXHIBIT P3 A TRUE COPY OF ORDER OF 4TH RESPONDENT DATED 28.09.2017. EXHIBIT P4 A TRUE COPY OF JUDGMENT IN W.P.(C)NO.10349/2011 DATED 24.10.2017 OF THIS HON'BLE COURT. EXHIBIT P5 A TRUE COPY OF LETTER DATED 10.11.2017 OF THE 5TH RESPONDENT TO 3RD RESPONDENT. EXHIBIT P5A A TRUE COPY OF LETTER DATED 13.11.2017 OF THE 5TH RESPONDENT TO 3RD RESPONDENT. EXHIBIT P6 A TRUE COPY ORDER DATED 16.05.2018 ISSUED BY 3RD RESPONDENT. EXHIBIT P7 A TRUE COPY OF APPOINTMENT ORDER DATED 01.06.2016 ISSUED BY 5TH RESPONDENT TO 7TH RESPONDENT. EXHIBIT P8 A TRUE COPY OF APPOINTMENT ORDER DATED 01.06.2016 ISSUED BY 5TH RESPONDENT TO 8TH RESPONDENT. EXHIBIT P9 A TRUE COPY OF ORDER DATED 28.09.2017 ISSUED BY 3RD RESPONDENT. EXHIBIT P10 A TRUE COPY OF ORDER DATED 26.09.2017 ISSUED BY 4TH RESPONDENT. EXHIBIT P11 A TRUE COPY OF ORDER DATED 18.04.2018 ISSUED BY 3RD RESPONDENT.** **EXHIBIT P12 A TRUE COPY OF THE APPROVED SENIORITY LIST DATED 17/12/2018. EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION DATED 07/01/2019 ISSUED BY THE DDE, THRISSUR TO DEO, CHAVAKKAD.** **WP(C).Nos.19568 & 28245 OF 2018** **-21-** **EXHIBIT P14 A TRUE COPY OF THE LETTER DATED 04/01/2019 ISSUED BY THE DEO, CHAVAKKAD TO THE PETITIONER.** **EXHIBIT P15 A TRUE COPY OF THE LETTER DATED 16/11/2018 ISSUED BY THE DEO, CHAVAKKAD TO DDE, THRISSUR. EXHIBIT P16 A TRUE COPY OF THE LETTER DATED 18/12/2018 ISSUED BY THE FIFTH RESPONDENT TO THE RESPONDENT NO.4.** **EXHIBIT P17 A TRUE COPY OF THE ORDER DATED 3.9.2019 OF THE SECOND RESPONDENT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R6(A) TRUE COPY OF THE DECISION REPORTED IN 2007(2) KLT SN 63 CASE NO.85 DECIDED ON 04/06/2007. EXHIBIT R6(B) TRUE COPY OF THE DECISION REPORTED IN 2013(2)KLT 215(FB) DECISED ON 25/03/2013. EXHIBIT R6(C) TRUE COPY OF THE JUDGMENT IN WPC NO.35993/2008I DATED 21/12/2009. EXHIBIT R6(D) TRUE COPY OF THE DECISION REPORTED IN AIR 1996 SC 2005 (1996 KHC 534). EXHIBIT R6(E) TRUE COPY OF THE INTERIM ORDER IN IA NO.6233/2015 IN WPC NO.10349/2011-P DATED 12/05/2015. EXHIBIT R5(A) A TRUE COPY OF THE LETTER DATED 01/06/2016 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT DEO. EXHIBIT R5(B) A TRUE COPY OF THE LETTER DATED 08/08/2018 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT R5(C) A TRUE COPY OF THE REPORT DATED 08/2018 SUBMITTED BY THE 5TH RESPONDENT TO THE 5TH RESPONDENT.** //TRUE COPY// PA TO JUDGE