Vivek K.R. and Praveen Kumar B.K. v. State of Kerala, District Educational Officer, Assistant Educational Officer, and Manager, KK Kidavu Memorial UP School, Cheliya, Kozhikode District (WP(C).No.18812 of 2016 (B))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** ## **WP(C).No. 18812 of 2016 (B)** ## **----------------------------** ## **PETITIONER(S):** **------------------------** **1. VIVEK K.R., UPSA, KK KIDAVU MEMORIAL UP SCHOOL, CHELIYA, KOYILANDY, KOZHIKODE DISTRICT.** **2. PRAVEEN KUMAR B.K., UPSA, KK KIDAVU MEMORIAL UP SCHOOL, CHELIYA, KOYILANDY, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENT(S):** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT,** **THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT -673 101.** **3. THE ASSISTANT EDUCATIONAL OFFICER, KOYILANDY, KOZHIKODE DISTRICT-673 305** **4. THE MANAGER, KK KIDAVU MEMORIAL UP SCHOOL, CHELIYA, KOYILANDY, KOZHIKODE DISTRICT-673 305** **R1 TO R3 BY SR GOVT. PLEADER SRI.B.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 18812 of 2016 (B) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **P1 TRUE COPY OF THE APPOINTMENT ORDER IN FORM 27 DATED 01/06/2010** - **P2 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 02/02/2011** - **P3 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 30/06/2011** - **P4 TRUE COPY OF THE ORDER OF APPOINTMENT IN FORM 27 DATED 01/06/2010** - **P5 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 31/01/2011** - **P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 05/04/2011** - **P7 TRUE COPY OF THE G.O(P) 29/2016/G.EDN. DATED 29/01/2016** - **P8 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 20037/2009** - **P9 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 15998/2015** ## **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V.ASHA J.** **-------------------------------------------W.P.(C).No.18812 of 2016 ---------------------------------------------** Dated this the 27[th] day of June, 2017 ## **J U D G M E N T** The petitioners were appointed as UP School Assistants (UPSAs) in the 4[th] respondent aided School, as per Exts.P1 and P4 orders, with effect from 01.06.2010 against additional division vacancies. The 3[rd] respondent, declined approval to their appointments as per Exts.P2 and P5 orders. The Managers took up the matter in appeals and the appeals were rejected as per Exts.P3 and P6 orders, saying that the vacancy ought to have been filled up by protected teachers. While so, the petitioners' appointments were approved, on introduction of Teacher's package as per G.O.(P). 199/2011/G.Edn. dated 01.10.2011 and their appointments were approved with effect from 01.06.2011 onwards. Petitioners submit that on the basis of the Teacher's package several persons who were appointed subsequent to them also got approval with effect from 01.06.2011. The grievance of the petitioners is that they will be ranked junior to those who were appointed subsequent to them. The approval was rejected on the ground that there was a ban on appointment W.P.(C).No.18812 of 2016 2 at the relevant time and the Manager did not execute any bond in terms of the Government Order G.O.(P). No.10/10/G.Edn. dated 12.01.2010, by which it was directed that the Managers shall execute a bond agreeing for appointing equal number of protected teachers and thereafter, to make appointments against future vacancies in the ratio of 1:1, with a protected teacher in every alternate vacancy. The 4[th] respondent, Manager did not execute a bond. Petitioners filed this writ petition challenging the rejection of their approval as per Exts.P2, P3, P5 and P6 orders and seek direction to the 3[rd] respondent to approve their appointment w.e.f. 01.06.2010. 2. The respondents have filed counter affidavit, stating that the Manager did not execute the bond as provided in the Government Order dated 12.01.2010. It is further stated that School is newly upgraded and therefore, the Manager ought to have appointed at least one protected Teacher and in the 5[th] respondent School no protected teacher was appointed. Moreover, it is stated that the Manager did not furnish staff list, 51 B declaration and declaration related to protected teachers. Apart from that it is stated that the fitness certificate of additional building is not submitted. It was also stated that the earlier appointment of W.P.(C).No.18812 of 2016 3 ## Smt.K.Lathabai was not approved. 3. From Ext.P1 and P4 orders, it can be seen that the appointments were made against new posts created in the U.P.School in 2010-2011. 4. I heard the learned counsel for the petitioner and the learned Government Pleader. 5. The reason for denial of approval to the appointment of petitioner with effect from 01.06.2010 is on the ground that the appointments were made against additional divisions, in which Manager should have appointed protected teachers and also on the ground that Manager did not execute any bond as provided in G.O.(P).No.10/10/G.Edn. dated 12.01.2010, which was in force at the relevant time. Even though the Manager has not entered appearance in this case, petitioners have stated that the Manager had challenged the order and that writ petition was dismissed along with a batch of writ petitions by a common judgment dated 16.03.2011, in a batch of writ petitions reported in **Eravannoor A.U.P. School v. State of Kerala** [2011 (3) KLT SN 89 (C.No. 91)]. Thereafter in Writ Appeal, the Division Bench of this Court affirmed that judgment reported in **Nair Service Society v. Government of Kerala** [2015(2) KLT 625]. Thus while upholding the Government order, this Court W.P.(C).No.18812 of 2016 4 held that the provisions of the Kerala Education Act and Rules do not confer any absolute or unbridled right on the Manager of an aided school to make appointment of teachers and that the Managers have to fill up the vacancies strictly in accordance with the provisions in the Kerala Education Act, Rules and the executive orders and instructions issued from time to time either by the Government or the Director of Public Instructions, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This Court found that orders banning appointment were perfectly within the competence of Government. 6. In the meanwhile, Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011, introducing Teachers' package and directing approval of appointment of the teachers who were continuing without salary, protected hands, etc., with effect from 01.06.2011. Based on those orders, all the teachers including the petitioners who were continuing in additional division vacancies without approval, got their appointments approved from 01.06.2011. Even though, the approval was confined to the period from 01.06.2011, Government did not take a decision that the service prior to 01.06.2011 rendered by these teachers cannot be recognised at all. Right from October 2011, they W.P.(C).No.18812 of 2016 5 have been consistently adopting the stand that the question regarding that would be decided later. The fact that there was justification for sanctioning the posts for their appointments is not disputed. 7. Now the contention of the learned Counsel for the petitioners that approval is granted to several teachers on the basis of the directions of this Court in several cases, including in Ext.P8 judgment dated 08.07.2010 in W.P.(C) No.20037 of 2010 and Ext.P9 judgment dated 28.07.2015 in W.P.(C). No. 15998 of 2015, requires to be examined. 8. On a perusal of Ext.P8 judgment dated 08.07.2010 in W.P.(C) No.20037/2010, it is seen that this Court had issued an interim order on 02.06.2010 directing the Manager to comply with the directions in the Government order -G.O. (P) No.10/10/G.Edn dated 12.1.2010, within a period of two weeks. Seeing that the interim order was duly communicated well in time, this Court found that from those circumstances it could be inferred that the Manager has no objection in obeying the conditions in the Government order and he cannot be permitted to defeat dispensation of justice and directed the educational authorities to consider the question of approval, treating that the Manager has executed the bond in terms of the Government order. The circumstances of this W.P.(C).No.18812 of 2016 6 case are different in as much as it is stated that the Manager had challenged the Government order and a writ appeal was also filed. 9. However in Ext.P9 judgment as well as in other judgments relied on by the learned counsel for the petitioner, no such interim orders are seen passed or inferences made. This Court has considered the cases of similarly situated teachers who got appointment when there was a ban and appointments were made by the Managers without executing the bond. 10. In the common judgment dated 18.02.2015 in W.P.(C) No.4643 of 2013 and connected cases, another learned Single Judge of this Court directed that if the Manager has not executed the bond, the appointments shall be approved with effect from the date of their appointment, treating that the Manager has executed the bond and his obligation to appoint protected teachers is in force. 11. By Ext.P9 judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed approval of an appointment made on 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the bond. W.P.(C).No.18812 of 2016 7 12. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and consequential disbursement of salary to teachers similarly situated. 13. The learned Counsel for the petitioners submit that the directions are implemented in most of the cases. Moreover, even Government have not taken any decision that the service rendered by the teachers prior to 30.06.2011 should not be recognised for any purpose. The Government has been stating that a general decision would be taken in the matter. 14. In view of the fact that several of these judgments are already implemented and several similarly situated teachers got approval and payment of salary towards the service rendered prior to June 2011 on appointment in additional division vacancies, despite the adamant stand of the Managers in making appointment during the ban period and in not executing the bond, I am of the considered view that there is no reason why the petitioner in this case should be subjected to a different treatment. Even according to Government the question relating to the service rendered by these teachers for the period prior to 01.06.2011 is liable to be considered when a general decision is taken by W.P.(C).No.18812 of 2016 8 Government. 15. Once it is found that the Manager appointed the petitioners in gross disobedience to the orders issued by Government, imposing ban on appointments i.e in violation of Rule 1 of Chapter XIVA of KER, it is open for the official respondents to take action against the Manager for the disobedience, in accordance with the provisions in chapter III Rule 7 and also to enforce the conditions in the bond or to get the loss caused to Government on account of that, recouped by him. In this case petitioners have stated that the Manager had challenged the Government Order and had filed Writ Appeal, though the number of the writ petition or writ appeal are not furnished. Now some of the Managers have taken up the matter before the Apex court and the matter is pending consideration of the Apex court. However, the Manager has not entered appearance in this writ petition. It is not clear whether he has approached the Apex court. Therefore the action against the Manager shall be only after verifying the legal proceedings initiated by the 4[th] respondent. 16. In the above circumstances, it is declared that the denial of approval to petitioners' appointment with effect from 01.06.2010 is unsustainable. The orders passed by the W.P.(C).No.18812 of 2016 9 official respondents to the extent they denied approval to petitioners' appointment for the period prior to 01.06.2011 will stand set aside. There shall be a direction to the 3[rd] respondent to issue revised orders approving the appointment of the petitioners with effect from 01.06.2010, the date of their initial appointment and to re-fix their pay based on such revised approval and to grant them all consequential benefits and to disburse them the arrears of pay, accordingly, within a period of 'three months' from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. Sd/- **P.V.ASHA, JUDGE.** AS