UMMER FAROOK.P v State of Kerala and Others

**WP(C) NO. 22623 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** ## **WP(C) NO. 22623 OF 2021** ## **PETITIONER/S:** UMMER FAROOK.P, AGED 38 YEARS, S/O MAMMAD P, PUTHIYAKATH, ATHAMPURA HOUSE, KUNNUMPURAM, KUTTOOR NORTH-676 305, MALAPPURAM DISTRICT-676 305. BY ADVS. M.R.VENUGOPAL DHANYA P.ASHOKAN S. MUHAMMAD ALIKHAN ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUANANTHAPURAM-695 001. 2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695 014. 3 THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT-676 101. 4 THE MANAGER, AAHMLP SCHOOL, PUTHIYATHUPURAYA, MALAPPURAM DISTRICT-676 505. **WP(C) NO. 22623 OF 2021** **2** SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 22623 OF 2021** **3** ## **JUDGMENT** The petitioner states that he was appointed as Arabic Teacher (FullTime) in the A.A.H.M.L.P. School, Puthiyathupuraya with effect from 1.6.2010 in the retirement vacancy of another Arabic Teacher. His grievance in this writ petition concerns the non-approval of the appointment from the original date of appointment in the additional division vacancies for want of bond executed by the Manager as provided under G.O.(P) No.10/10/G.Edn. dated 12.1.2010. 2. The petitioner contends that the Government had, as per G.O (P)No.317/2005/G.Edn. Dated 17.8.2005, imposed a ban on the appointment of teachers and non-teaching staff in additional division vacancies. In view of the above the appointment of the petitioner was initially turned down. Later, by G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the ban on appointments was lifted subject to certain conditions. One among the conditions was that the Managers should execute a consent letter undertaking that in future vacancies, protected teachers equal to the number of teachers, appointed to the additional division vacancies during the period 2006-07 to 2009-10, would be appointed. The 4th respondent failed to execute the bond as required in the Government order. Thereafter the Government issued G.O.(P) No.199/2011/G.Edn dated 01.10.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of **WP(C) NO. 22623 OF 2021** **4** deployed/protected teachers. The petitioner was also included in the package and his appointment was regularised with effect from 1.6.2011. 3. According to the petitioner, the entitlement of the petitioner for approval from the date of appointment is no more rest Integra as the said position has been settled by this Court in a catena of decisions, one among which is reported in **Moosakutty vs DEO, Wandoor** (2009 (3) KLT 863). The same was affirmed by the Division Bench wherein this Court had directed the respondents to approve the appointment of the teachers from the date of appointment by deeming that the manager has executed the bond. 4. In the light of the law laid down by this Court, the petitioner along with certain others approached this Court by filing W.P.(C) No.23142/2020 seeking directions and pursuant to the directions issued by this Court, the petitioner along with others preferred a revision before the Government. Ignoring the law laid down by this Court in various precedents, his request was again turned down by Exhibit P5 order. The fact that the manager had not executed the bond is the solitary reason given by the respondent while rejecting the request. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exhibit P5 and also for a direction to the concerned respondents to approve the appointment of the petitioner with effect from the date of his appointment for disbursal of the consequential benefits. 5. Smt. Dhanya P Ashokan, the learned counsel appearing for the **WP(C) NO. 22623 OF 2021** **5** petitioner submitted that it is settled by now that even in cases wherein, bonds have not been executed by the Manager, the Managers would be deemed to have executed the bond and they would be obliged to make appointments from the list of protected teachers, equal to the number of appointments approved during the ban period. The learned counsel points out that the law laid down by this Court has not been taken note of while passing Ext.P5 order. 6. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 and if the appointment of the protected teacher is not done as provided in G.O.(P) No.10/10/G.Edn. dated 12.1.2010, then the Manager ought to have executed a bond stating that such appointments would be made in accordance with the provisions of the Government Order. It is further submitted that some of the Managers have challenged G.O.(P) No.10/10/G.Edn. dated 12.1.2010 and those matters are now pending before the Apex Court. 7. I have considered the submissions advanced. 8. A Division Bench of this Court in **State of Kerala and Ors. v. V.S.Suma Devi and Ors.** [judgment dated 1.8.2017 in W.A.No.2111/2015], has held that in the case of non-execution of the bond by the Managers, it should be deemed that bonds have been executed and the Managers would be obliged to make an equal number of appointments when the appointments to additional vacancies made during the ban period are approved. The very **WP(C) NO. 22623 OF 2021** **6** principle has been laid down in Exhibit P3 as well. A mere perusal of Ext.P5 order passed by the 1st respondent would reveal that the non-execution of the bond was the sole reason for denying the approval. In that view of the matter, Ext.P5 order cannot be sustained. 9. After having carefully evaluated the contentions raised in this writ petition, the submissions made across the Bar and the facts and circumstances, I am of the view that this writ petition can be disposed of by issuing the following directions: a) Ext.P5 order passed by the 1st respondent will stand set aside insofar as the petitioner is concerned. b) The 1st respondent is directed to reconsider the matter in so far as the petitioner is concerned and pass orders with notice to the petitioner as well as the 4th respondent and take a decision, taking note of the law laid down by this Court in Exhibit P3 judgment. Orders shall be passed expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. c) While considering the revision petition, the Secretary to Government, shall be free to reckon, that too, if all conditions are satisfied, that the Managers would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. It is **WP(C) NO. 22623 OF 2021** **7** made clear that the orders passed by the 1st respondent shall be subject to the final orders passed by the Apex Court in the pending petitions. d) It would be open to the petitioner to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. The writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** DSV **WP(C) NO. 22623 OF 2021** **8** ## **APPENDIX OF WP(C) 22623/2021** PETITIONER (S) EXHIBITS : Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 OF THE PETITIONER. Exhibit P2 A TRUE COPY OF THE ORDER DATED 7.6.2011 BY THE 3RD RESPONDENT REJECTING THE APPROVAL OF THE APPOINTMENT OF THE PETITIONER. Exhibit P3 A TRUE COPY OF THE JUDGMENT IN WA 931/2016 DATED 24.7.2017. Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 30.10.2020 IN WPC 23142/2020 OF THE HON'BLE HIGH COURT. Exhibit P5 A TRUE COPY OF THE ORDER DATED 7.8.2021 PASSED BY THE 1ST RESPONDENT. RESPONDENT (S) EXHIBITS : NIL