Allowed

Sandya v. the Director of Public Instructions & or

Kerala HC6 Mar 2017WP(C)/17471/2010

Case brief

AI extract

What is this about?

Single Judge quashed orders rejecting PETITIONER promotion appointment as High School Assistant. Court directed GOVT to approve PETITIONER service with retrospective effect, relying on prior Division Bench rulings protecting appointments made under void government orders. Grant within 3 months.

What did the court decide?

Quashed impugned orders; directed respondent 5 to consider and approve petitioner's appointment with effect from date of appointment and pay arrears within three months.

Sandya Vs the Director of Public Instructions & or — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938

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WP(C).No. 17471 of 2010 (H)

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PETITIONER(S):

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M. SANDYA, W/O.RAJASEKHARAN, AGED 33 YEARS, CHITHRANJALI, SANATHANAMPURAM P.O., KALARCODE, ALAPPUZHA, (FORMER HAS (MATHEMATICS), HIGH SCHOOL, KAKKAZHAM, ALAPPUZHA).

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BY ADVS.SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN.

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RESPONDENT(S):

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1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

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2. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.

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3. THE DISTRICT EDUCATION OFFICER, ALAPPUZHA.

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4. THE MANAGER, HIGH SCHOOL, KAKKAZHAM, ALAPPUZHA.

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5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.

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R1, R2, R3 & R5 BY GOVT. PLEADER SRI.BIJOY CHANDRAN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2017, THE COURT ON 06/03/2017 DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 17471 of 2010 (H)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE APPOINTMENT ORDER.

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EXT.P2	COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 11/06/2003.
EXT.P3	COPY OF THE APPEAL SUBMITTED BEFORE THE 1ST RESPONDENT DATED 18/08/2003.
EXT.P4	COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 12/02/2004.
EXT.P5	COPY OF THE REVISION PETITION SUBMITTED BEFORE THE 5TH RESPONDENT.

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EXT.P6 COPY OF THE REVISION PETITION DATED 17/12/2004 SUBMITTED BEFORE THE 5TH RESPONDENT.

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EXT.P7	COPY OF THE DETAILS FURNISHED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT.
EXT.P8	COPY OF THE GO(MS) NO.11/02.
EXT.P9	COPY OF THE GOVT. ORDER NO.GO(MS) NO.132/2009/GEN. EDN. DEPT. DATED 17/06/2009.
EXT.P10	COPY OF THE CLACULATION SHEET.
EXT.P11	COPY OF THE 48094/A3/06/GL.EDN. DATED 13/09/2009.
EXT.P12	COPY OF THE JUDGMENT IN WP(C).NO.37069/2009 DATED 23/02/2010.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

ANU SIVARAMAN, J.

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W.P.(C) No.17471 of 2010

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Dated this the 6^th day of March, 2017

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J U D G M E N T

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Prayers in this writ petition are as follows:

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i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P2 and Exhibit P11.

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ii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3^rd respondent to approve the appointment of the petitioner as HSA (Mathematics) with effect from 5-6-2002 and disburse her salary for the period she worked.

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The petitioner was appointed as High School Assistant (Maths) in a promotion vacancy with effect from 05.06.2002. Approval was declined on the ground that going by the provisions of G.O.(MS) No.11/2002/G.Edn dated 07.01.2002, the vacancy ought to have been filled up by appointing a High School Assistant (English). The appeal and revision preferred against the rejection of approval were also rejected. Hence this writ

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W.P.(C) No.17471/2010

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petition.

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Heard the learned counsel for the petitioner and the

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learned Senior Government Pleader.

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Learned counsel for the petitioner would submit that the appointment of the petitioner was not approved by the District Educational Officer for the reason that there was a temporary ban in the appointment of core subjects by Ext.P8 order, for facilitating the creation cadre of HSA (English). The said order was stayed by this Court and the writ petition was allowed. In appeal, a Division Bench of this Court upheld the validity of Ext.P8 by judgment dated 16.11.2002. Therefore, it is contended that appointments in core subjects made till 16.11.2002 are liable to be approved. It is also submitted that by Ext.P9 order, the Government has clarified that the persons appointed based on the staff fixation done prior to the date of Ext.P8 i.e., 07.01.2002, are protected in service. It is therefore submitted that the petitioner is entitled to have her service regularized.

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Learned counsel for the petitioner relies on the decisions of this Court in W.P.(C) No.4705/2012 as affirmed in Writ Appeal No.133/2014 to contend that the Government Order dated

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W.P.(C) No.17471/2010

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07.01.2002 was stayed and later had been set aside by this Court by the decision in Suguna Prakash vs. State of Kerala (2002 (3) KLT 488). While reversing the said judgment, the Division Bench in Baiju vs. Suguna Prakash (2003 (2) KLT 182), observed that the teachers appointed under Rule 51A or Rule 43 KER without implementing the Government Order dated 07.01.2002 should be protected.

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The petitioner was not a Rule 51A or Rule 43 claimant. She was a fresh hand appointed to a promotion vacancy as on 05.06.2002. In Writ Appeal No.133/2014, this Court had upheld the direction issued by the learned Single Judge to approve the appointment of the petitioner therein as HSA (Maths) with effect from 01.11.2002. This was clearly because the Government Order dated 07.01.2002 was stayed and later set aside by this Court and the said judgment was reversed by the Division Bench only on 16.11.2002.

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The petitioner was appointed as HSA (Maths) on 05.06.2002 without complying with Ext.P8 Government Order but in accordance with the subject requirement as stood prior to 07.01.2002. However, since many teachers who were similarly

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W.P.(C) No.17471/2010

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appointed have availed the benefit of approval since Ext.P8 Government Order could not be implemented before 16.11.2002 and since a Division Bench of this Court had affirmed that such approval could be granted to an appointment made on 01.11.2002 without complying with Ext.P8 Government Order, I am of the view that approval for the petitioner's appointment could not have been declined.

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In the above circumstances, this writ petition is ordered quashing the impugned orders and directing the Government to take up the issue of the petitioner's appointment and to grant approval to the same, if it is otherwise in order, within a period of three months from the date of receipt of a copy of this judgment.

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Sd/-

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ANU SIVARAMAN JUDGE

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smp

Sandya v. the Director of Public Instructions & or

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Sandya v. the Director of Public Instructions & or

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