Allowed

Shimitha C. v. State of Kerala

Kerala HC5 Aug 2020WP(C)/22748/2019

Case brief

AI extract

What is this about?

The Court allowed the appeal of a Head Master School Assistant against the rejection of appointment approval. It held that denying approval was unsustainable due to the absence of protected eligible teachers for the English subject and set aside orders refusing approval from 2009.

What did the court decide?

Orders Exts. P7 and P9 setting aside approval from 01.06.2009 are set aside. DEO to issue revised orders approving appointment from 01.06.2009.

Shimitha C. Vs State of Kerala — Education and Admissions | Kerala HC (2020)

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WP(C).No.22748 OF 2019(P)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942

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WP(C).No.22748 OF 2019(P)

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PETITIONER/S:

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SHIMITHA C. AGED 38 YEARS H.S.A.(ENGLISH), W/O.BAIJU RAGHAVAN, S.N.TRUST HIGHER SECONDARY SCHOOL, THOTTADA, KANNUR-7. RESIDING AT CHIRAYIL, CHOMBALA(PO), VATAKARA, KOZHIKODE (DT.)

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BY ADVS. SRI.K.MOHANAKANNAN SRI.T.S.NEJIMUDDIN

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION, THIRUVANANTHAPURAM-695001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695014.

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3 THE DISTRICT EDUCTIONAL OFFICER, THAVAKKARA, KANNUR-670002.

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4 THE MANAGER, S.N.TRUST HIGHER SECONDARY SCHOOL, THOTTADA, KANNUR-670007.

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OTHER PRESENT:

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SRGP.SRI.P.M.MANOJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.22748/2019

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JUDGMENT

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Dated this the 5^th day of August 2020

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The petitioner who has been working as HSA (English) in

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the S.N.Trust Higher Secondary School, Thottada is

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aggrieved by the rejection of approval to her appointment for the period from 01.06.2009 to 31.05.2011.

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Petitioner was appointed as HSA (English) with

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effect from 01.06.2009 in the vacancy in an additional post which arose in the year 2008-09. In Ext.P3 order, the DEO declined approval to her appointment on the ground that S.N. Trust High School, Thottata was a newly opened School started in 2000-2001 and as such all the vacancies should have been filled up by protected teachers in terms of G.O(P) No.178/2002/G.Edn dated 28.06.2002. It was further stated that the Government as per circular dated 06.02.2010 clarified that HSA (core subject) on protection shall be deployed in Government/aided schools in the vacancies of

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H.S.A (English) in terms of para 3 (a) of G.O.(MS) No.11/02/G.Edn dated 7.1.2002 provided there are no

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protected H.S.A.(English). Therefore approval was declined to the appointment of the petitioner.

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W.P.(C) No.22748/2019

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Thereafter as per Ext.P5 order of the Director of

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Public Instruction petitioner was granted approval on introduction of teachers' package with effect from 01.06.2011. Aggrieved by the denial of approval for the period prior to 01.06.2011 petitioner submitted a Revision Petition before the Government and thereafter approached this Court. By Ext.P6 judgment dated 04.08.2017 in WP(C)No.25972/2017 this Court directed the Government to pass orders on her Revision Petition. The Government as per Ext.P7 order found that the petitioner's appointment was

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liable to be approved with effect from 01.06.2009. The petitioner had submitted before the Government that no list of protected teachers was furnished to the Manager and that there was no protected teacher in English in the District. The Government ordered that petitioner's appointment can be approved provided there were no protected teachers to be appointed and the said appointment was in tune with the Government order dated 12.01.2010. Thereafter the DEO as per Ext.P9 letter dated 03.06.2009 asked the Government whether petitioner's appointment can be approved in the light of the amendment ordered to the KER on 28.02.2019.

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The petitioner has approached this Court at this

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stage pointing out that she was entitled to get the

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W.P.(C) No.22748/2019

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appointment approved from 01.06.2009 onwards.

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The 3^rd respondent has filed a counter affidavit stating that at the time of appointment of the petitioner, there was a ban in force and approval of appointment of the petitioner was rejected by the DEO, Kannur raising two reasons: 1) ban on creation of new division/additional posts 2) the vacancy should have been filled up by appointing protected teachers. It is further stated that the said ban was lifted as per G.O(P) No.10/10/G.Edn dated 12.01.2010. The DEO stated that as per Ext.P7 order the Government has directed the DEO to pass orders on approval after ensuring that there was no protected HST English awaiting deployment at the time of appointment of the petitioner and that the conditions laid down in paragraph 3 of Government circular dated 11.09.2018 should be carried out. The counter affidavit also refers to SLP pending before the Supreme Court in respect of the validity of G.O(P) No.10/10/G.Edn dated 12.01.2010. It is stated that even though the Manager was directed to execute a bond, no bond was executed. It is stated that instead of submitting the bond the Manager produced only declaration to the effect that Sri.Sundareshan, protected teacher, was appointed in 2004 and Smt.K.Sreelaja another protected

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W.P.(C) No.22748/2019

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teacher was absorbed in 2005. It was stated that both the teachers had already returned to their parent schools. It is also stated that the Manager has produced the stay order passed by the Supreme Court in the SLP relating to the Government order dated 12.01.2010 and therefore appointment cannot be approved until the stay order passed by the Supreme Court is vacated.

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From Ext.P4 it is seen that the reason for declining approval to petitioner's appointment was that protected teacher was not appointed since the School was a new School. The appointment was not against any additional division vacancy and denial of approval was not based on any ban on appointments in such vacancies. The petitioner was appointed as HSA in English in the year 2009. The post of HSA in English was introduced only in 2002 by way of G.O(Ms) No.11/02/G.Edn dated 07.01.2002. At the relevant time only those teachers who were having 7 years service as on 01.07.1998 alone were eligible for protection. As far as HSA (English) is concerned it was practically impossible to have any teacher in English eligible for protection at the time when the petitioner was appointed in 2009. Therefore there was no reason for denying the approval to the appointment of the petitioner. Even otherwise the

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W.P.(C) No.22748/2019

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respondents do not have a case that the Manager had made an appointment after the list of protected teachers was furnished to him. This Court has already held in Minimole

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vs. State of Kerala: 2012(4)KLT SN 32 that the vacancy of HSA (English) would not be filled up by any teacher qualified in other subjects. In these circumstances it was not a case where the Manager should have asked to execute a bond as the G.O. dated 12.01.2010 does not apply to the present case.

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In the above circumstances, denial of approval of

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appointment of the petitioner for the period from 01.06.2009 is unsustainable. Orders Exts.P7 as well as Ext.P9 to the extent it denies approval from 01.06.2009 shall stand set aside. The DEO shall issue revised orders approving the appointment of the petitioner with effect from 01.06.2009 and grant her all consequential benefits. Orders shall be passed on approval within a period of one month from the date of receipt of a copy of the judgment and consequential benefits shall be granted to the petitioner within a further period of three months.

Sd/-

P.V.ASHA

JUDGE

rkc

W.P.(C) No.22748/2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1.6.2009 OF THE 4TH RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE ORDER NO.B5/10159/13/K.DIS. DATED 21.12.2013. EXHIBIT P3 TRUE COPY OF THE ORDER NO.B5/4261/09/K.DIS. DATED 4.10.2011 OF THE DISTRICT EDUCATIONAL OFFICER. EXHIBIT P4 TRUE COPY OF THE LETTER NO.A5/4656/10 OF DISTRICT EDUCATION OFFICER KANNUR DATED 19.7.2010. EXHIBIT P4 A TRUE COPY OF THE LETTER NO.A3/16018/10 DATED 24.7.2010 OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. EXHIBIT P5 TRUE COPY OF THE ORDER NO.H2/35920/11/DPI OF DIRECTOR OF PUBLIC INSTRUCTION WITH RELEVANT PAGES DATED 13.12.2011. EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 4.8.2017 IN THE WPC.25972/2017. EXHIBIT P7 TRUE COPY OF THE GO(RT)5105/2018/G.EDN DATED 4.12.2018. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE MANAGER DATED 17.6.2019. EXHIBIT P9 TRUE COPY OF THE LETTER NO.B4/5168/2017 DATED 3.6.2019.

Shimitha C. v. State of Kerala

Case brief

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Shimitha C. v. State of Kerala

Case brief

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