WP(C) Nos. 24097/2021, 23102/2023 & 24814/2021

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` # **`WP(C) NO. 24097 OF 2021`** ## **`PETITIONER:`** ``` REETHA.R AGED 30 YEARS ``` ``` WIFE OF S. RATHEESH, ASSISTANT TEACHER, KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE, PALAKKAD DISTRICT 678 503 ``` ``` BY ADV V.A.MUHAMMED ``` ## **`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 GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM 695 014`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KUNNATHURMEDU, PALAKKAD 678 001`** - **`4 THE DISTRICT EDUCATIONAL OFFICER MUNICIPAL COMPLEX, ROBINSON ROAD, SULTANPET, PALAKKAD 678 014`** - **`5 THE ASSISTANT EDUCATIONAL OFFICER ANAMARI ROAD, KOLLENGODE, PALAKKAD DISTRICT 678 506`** - **`6 THE MANAGER KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE, PALAKKAD DISTRICT 678 503`** - **`7 THE HEADMASTER KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE, PALAKKAD DISTRICT 678 503`** ``` 2 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ``` 8SMT. SARANYA U LPSA. KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE, PALAKKAD DISTRICT 678 503 ``` ``` BY ADVS. NISHA BOSE - GOVERNMENT PLEADER SAJAN VARGHEESE K. U.BALAGANGADHARAN LIJU. M.P ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, ALONG WITH WP(C).23102/2023, 24814/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 WP(C) NO. 23102 OF 2023 ``` ## **`PETITIONER:`** ``` REETHA.R AGED 33 YEARS W/O RATHEESH.S, ASSISTANT TEACHER, K.T. SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE P.O., PALAKKAD DISTRICT, PIN – 678506 ``` ``` BY ADVS. GEORGE ABRAHAM JOBY D JOSEPH MARY CATHERINE PRIYANKA P.S. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001`** - **`2 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM, PIN – 695014`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD DISTRICT, PIN – 678001`** - **`4 THE DISTRICT EDUCATIONAL OFFICER MUNICIPAL COMPELX, ROBINSON ROAD, PALAKKAD DISTRICT, PIN – 678014`** - **`5 THE ASSISTANT EDUCATIONAL OFFICER ANAMARI ROAD, KOLLENGODE, PALAKKAD DISTRICT, PIN – 678506`** ``` 4 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ``` 6THE MANAGER K.T. SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE P.O., PALAKKAD DISTRICT, PIN – 678506 ``` ``` 7SMT. SARANYA.U LPSA, K.T. SENIOR BASIC SCHOOL, KARIPPODE, KOLLENGODE P.O., PALAKKAD DISTRICT, PIN – 678506 ``` ``` BY ADVS. SAJAN VARGHEESE K. K BALAGANGADGARAN UNIKKAT LIJU. M.P(K/3405/1999) NISHA BOSE – GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, ALONG WITH WP(C).24097/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 WP(C) NO. 24814 OF 2021 ``` ## **`PETITIONER:`** ``` SARANYA. U AGED 32 YEARS ``` ``` W/O SUBRAMANIAN V, ASSISTANT (LPSA), K.S.B SCHOOL, KARIPPODE, PALAKKAD-678503, RESIDING AT DEVI NILAYAM, EAST VILLAGE, PALLAVUR P.O, PALAKKAD-678688. ``` ## **`BY ADV U.BALAGANGADHARAN`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`2 THE DIRECTOR OF GENERAL EDUCATION (FORMER DIRECTOR OF PUBLIC INSTRUCTIONS), D.P.I.OFFICE, JAGATHY, THIRUVANANTHAPURAM695014.`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION (D.D.E) CIVIL STATION, PALAKKAD-678001.`** - **`4 THE DISTRICT EDUCATIONAL OFFICER (D.E.O) MUNICIPAL BUILDING, ROBINSON ROAD, PALAKKAD678001.`** - **`5 THE ASSISTANT EDUCATIONAL OFFICER (A.E.O) KOLLENGODE, PALAKKAD-678506.`** ``` 6 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ``` 6THE MANAGER K.S.B.SCHOOL, KARIPPODE, PALAKKAD-678503. 7REETA R. UPSA, K.S.B.SCHOOL, KARIPODE, PALAKKAD-678503. ``` ``` BY ADVS. SAJAN VARGHEESE K. LIJU. M.P(K/3405/19 JOPHY POTHEN KANDANKARY NISHA BOSE – GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, ALONG WITH WP(C).24097/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 7 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`JUDGMENT`** ## **`[WP(C) Nos.24097/2021, 23102/2023, 24814/2021]`** In all the three writ petitions, the common issue that arises pertains to the appointment of the petitioners herein, as LPST/UPST, in K.S.B. School, Karippode, which is managed by the sixth respondent in W.P(C) No.24814/2021. For convenience, the parties herein are referred to on the basis of their respective ranks in W.P(C) No.24814/2021 and the Exts are also referred to as per the said writ petition, unless specifically mentioned otherwise. 2. The facts which led to the filing of these writ petitions are as follows: The petitioner, i.e. the petitioner in W.P(C) No.24814/2021 and the seventh respondent in the said writ petition were appointed as per Ext.P3 on 01.06.2017 as LPST/UPST respectively. Initially, the appointment of the petitioner was against a Head Teacher vacancy (HTV), whereas the appointment of the seventh respondent was against the retirement vacancy of one Prasannakumari. Even though the approval of the appointment of the seventh respondent was granted initially, later on account of ``` 8 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` certain audit objections, as there was some confusion as to whether the post from which the said Prasannakumari retired was that of UPST or LPST, it was cancelled. Similarly, with regard to the appointment of the petitioner, even though the same was originally made against an HTV, later, Ext.P1(a) corrigendum was issued by the Manager wherein the said appointment was sought to be made against the post of the said Prasannakuamari. The approval of the said appointment was, however, rejected. The same was taken up before the Government by the petitioner, which ultimately resulted in Ext.P6 directing the Manager to issue a formal appointment order in Form No.27 and to approve the appointment of the petitioner. The claim of the seventh respondent was rejected in the said order. W.P(C) No.24814/2021 was submitted by the petitioner seeking implementation of Ext.P6, whereas W.P(C) No.24097/2021 was filed by the seventh respondent in W.P(C) No.24814/2021, challenging Ext.P6 order as well as the audit objection on the basis of which, the approval of the seventh respondent was cancelled. ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ``` 9 ``` 3. During the pendency of these writ petitions, some orders were passed by the authorities concerned on the basis of the interim order passed by this Court in W.P(C) No.24097/2021 which was challenged by the seventh respondent by filing W.P(C) No. 23102/2023. The order impugned in W.P(C) No.23102/2023 is Ext.P8 therein. As all these writ petitions pertain to the appointment of the petitioners herein, all these cases are being heard and disposed of together. All the parties have filed counter affidavits in the writ petitions highlighting their contentions. 4. Heard Sri.U.Balagangadharan, learned counsel appearing for the petitioner in W.P(C) No.24814/2021, Sri.M. Sajjad, learned counsel for the seventh respondent in W.P(C) No.24814/2021, Dr George Abraham learned counsel for the petitioner in W.P(C) No.24097/2021 and W.P(C) No.23102/2023, who is also the seventh respondent in W.P(C) No.24814/2021 and Sri.Sajan Varghese K. learned counsel appearing for the Manager. 5. On going through the entire materials placed before this ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ``` 10 ``` Court and in the light of facts brought out, these writ petitions can be disposed of, without considering the respective contentions raised by the petitioners on merits. This is because, it is pointed out that, in the School concerned, a total of ten vacancies and eight vacancies are available for LPST and UPST respectively. There is no dispute that, as of now eight Teachers are working as LPST for the academic year 2017-18. It was pointed out by the petitioner by filing I.A. 1/2024 that, out of the ten posts, one vacancy became vacant consequent to the resignation of one C.R. Ragesh on 28.06.2016. The other vacancy occurred consequent to the retirement of Prasannakumari. Now the basic dispute in these writ petitions pertains to the claims put forward by the petitioner and the seventh respondent as against the vacancy consequent to the retirement of Prasannakumari. However, it is discernible from the records that, in addition to the vacancy arose on account of the said Prasannakumari, there is a further vacancy available consequent to the resignation of C.R. Ragesh. ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`11`** 6. It is to be noted in this regard that, earlier when the matter came up for consideration, this Court, taking note of the aforesaid aspect, passed an interim order on 19.10.2023, directing the fifth respondent to consider whether the petitioner in W.P(C) No.24814/2021 can be accommodated in the vacancy available. In compliance of the said interim order, the fifth respondent passed an order dated 20.03.2024 which is produced by the Manager in W.P(C) No.24097/2021 along with I.A. No.1/2024 as Ext.R6(b). Even though the said order was passed after hearing the parties concerned, it was found that the petitioner cannot be accommodated. However, the crucial aspect to be noticed is that, in Ext.R6(b) order, the vacancy that arose consequent to the resignation of Ragesh C.R. was not taken into consideration. It is admitted by all the parties except the official respondents that, the vacancy consequent to resignation of Ragesh C.R. remains vacant, and therefore the petitioner can be accommodated in the said post. As Ext R6(b) order does not contain any consideration of the said ``` 12 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` aspect, the Manager has already submitted Ext.R6(b) representation, which is dated 06.05.2024. 7. Thus, as it is evident from the records that two vacancies of LPST are available in the School as of now, the petitioner as well as the seventh respondent can be accommodated in their respective posts. However, while considering the said aspects, the question relating to the confusion created with regard to the nature of the post i.e. whether it is LPST or UPST may also arise. It is pointed out that even though the appointment of the seventh respondent was initially made against that vacancy by making it as UPST and the same was approved, by the authorities concerned, it was later cancelled on the basis of the audit objection. The learned counsel for the seventh respondent points out that, such a procedure was not legally sustainable as the Audit Department does not have the authority to raise such an objection and according to the learned counsel the said issue is covered in his favour as per the judgment rendered by this Court in **Somanatha Panicker v.** ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`13`** **State of Kerala** [1997 (1) KLT 305] and **Usuvathunnisa v. Asst. Educational Officer** [1990 (2) KLT 530]. 8. As the said issue also has to be decided for resolving disputes raised by the petitioner as well as the seventh respondent in this case, it is only proper that a decision on all these issues be taken by the Government by considering Ext.R6(b). In such circumstances, these writ petitions are disposed of directing first respondent to consider and pass orders on Ext.R6(b) in WP(C) No 24097 of 2021 submitted by the Manager of the School and to take a decision on the following questions: i The approval granted to the seventh respondent in the post of UPST and the sustainability of cancellation of the same on the basis of the audit objection shall be considered by the first respondent after adverting to the decisions relied on by the seventh respondent. ii The right of the petitioner in WP(C) No 24814/2021 to get her appointment as against the vacancy arose ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`14`** consequent to the resignation of Ragesh C.R. approved, shall also be considered. iii The orders on the same in accordance with law, shall be passed by the first respondent after hearing the petitioner, the Manager of the School and the seventh respondent. The decision in this regard shall be taken untrammelled by the findings in Ext.P6 in W.P(C) No.24814/2021 and Ext.P8 in W.P(C) No.23102/2023, within a period of three months from the date of receipt of the copy of the judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 15 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`APPENDIX OF WP(C) 23102/2023`** ``` PETITIONER EXHIBITS Exhibit P1. A COPY OF THE APPOINTMENT ORDER DATED 1/6/2017 ISSUED BY THE MANAGER Exhibit P2A COPY OF THE APPOINTMENT ORDER OF SMT. SARANYA.U DATED 1/6/2017 Exhibit P3A COPY OF THE AUDIT OBJECTION NO.B/828/2019 DATED 23/11/2020 RAISED BY THE AUDIT DEPARTMENT WITH TYPED COPY Exhibit P4A COPY OF THE JUDGMENT IN W.P.(C) NO. 28721/2020 DATED 22/12/2020 Exhibit P5A COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN W.P.(C) NO. 24097/2021 DATED 3-11-2021 Exhibit P6A COPY OF THE STAFF FIXATION ORDER NO.B/41244/2022 DATED 5/8/2022 Exhibit P7A COPY OF THE INTERIM ORDER IN W.P.(C) NO. 24097/2021 DATED 21/2/2023 PASSED BY THE HON'BLE COURT Exhibit P8A COPY OF THE GOVERNMENT ORDER, G.O(P) NO.3909/2023/GEDN DATED 3/7/2023 Exhibit P9A COPY OF THE ORDER, G.O(MS) NO. 275/2021/ G.EDN. DATED 6/12/2021 Exhibit P10A COPY OF THE ORDER, G.O.(P) NO. 4/2021/ G.EDN. DATED 6/2/2021 Exhibit P11A COPY OF THE ORDER, G.O.(P) NO. 2/2023/ G.EDN. DATED 23/3/2023 RESPONDENT EXHIBITS ``` ``` EXHIBIT R 7 [ A ]A TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT)NO.4151/2021/G.EDNDATED 18.09.2021 ``` ``` EXHIBIT R 7 [ B ]A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2017 ISSUED TO THE 7TH RESPONDENT ``` ``` EXHIBIT R 7 [ C ]A TRUE COPY OF THE CORRIGENDUM LETTER DATED 04.12.2020 ISSUED BY THE MANAGER TO THE AEO ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ``` 16 ``` ## **`APPENDIX OF WP(C) 24814/2021`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2017 ISSUED BY THE 6TH RESPONDENT. ``` ``` Exhibit P1(A)A TRUE COPY OF THE LETTER OF CORRIGENDUM DATED 04.12.2020 ISSUED BY THE 6TH RESPONDENT. ``` ``` Exhibit P2A TRUE COPY OF THE STAFF FIXATION FOR THE YEAR 2017-18 DATED 16.12.2017 ISSUED BY THE 5TH RESPONDENT. ``` ``` Exhibit P3A TRUE COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT DATED 1.06.2017 CARRYING ENDORSEMENT OF AEO. ``` ``` Exhibit P4A TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT TO HEADMASTER OF K.S.B.SCHOOL,KARIPODEDATED 23.11.2020. Exhibit P5A TRUE COPY OF THE ORDER DATED 10.02.2020 OF THE 2ND RESPONDENT. Exhibit P6A TRUE COPY OF THE ORDER DATED 18.09.2021 OF THE 1ST RESPONDENT. RESPONDENT EXHIBITS Exhibit R6(a)TRUE COPY OF THE JUDGMENT DATED 23.02.2021PASSEDINWP(C) NO.14955/2020 ON THE FILE OF THIS HONOURABLE COURT. ``` ``` 17 ``` ``` WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021 ``` ## **`APPENDIX OF WP(C) 24097/2021`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER DATED 01-06-2017 ALONG WITH APPROVAL RECORDED THEREON ``` - **`Exhibit P2 TRUE COPY OF THE APPOINTMENT ORDERS OF SMT.PRASANNAKUMARI DATED 04-06-1990`** - **`Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER OF SMT. PRASANNAKUMARI DATED 04-06-1990`** - **`Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF SMT. PRASANNAKUMARI.`** - **`Exhibit P5 TRUE COPY OF THE LETTER NO. B/828/2019 DATED 23-11-2020 OF THE AEO, KOLLENGODE ADDRESSING THE HEADMASTER`** - **`Exhibit P6 TRUE COPY OF THE RELEVANT PAGE OF THE AUDIT OBJECTION RAISED AGAINST THE PETITIONER.`** - **`Exhibit P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 28721/2020 DATED 22-12-2020`** - **`Exhibit P8 TRUE COPY OF THE APPOINTMENT ORDER OF SMT. SARANAYA U DATED 01-06-2017`** - **`Exhibit P9 TRUE COPY OF THE G.O(RT) NO 4151/2021/G.EDN DATED 18-09-2021`** - **`Exhibit P10 TRUE COPY OF THE DECISION REPORTED IN 2014(4) KHC 822`** ``` Exhibit P11TRUE COPY OF THE GO(RT) NO. 3256/2021 /G.EDN DATED 05-07-2021 ``` ``` RESPONDENT EXHIBITS Exhibit R6(b)TRUE COPY OF THE REPRESENTATION DATED 06-05-2024 SUBMITTED BEFORE THE FIRST RESPONDENT. ```