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T.D.Vincy v. State of Kerala

Kerala HC3 Sept 2021WP(C)/14582/2021

Case brief

AI extract

What is this about?

Petitioner, a full-time menial appointed to an aided school, challenged an order rejecting her claim for approval from 2009 due to pending Supreme Court challenge against government order. Court quashed rejection order, directed reconsideration deeming bond executed, and mandated appointment of protected hands. Disposed within three months.

What did the court decide?

Exhibit P4 order set aside; direction to 1st respondent to reconsider petition deeming manager executed bond and appoint protected hands; order to be passed expeditiously within three months.

T.D.Vincy Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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WP(C) NO. 14582 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 3^RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943

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WP(C) NO. 14582 OF 2021

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PETITIONER/S:

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T.D.VINCY AGED 44 YEARS

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FULL TIME MENIAL, SREEMOOLAM SILVER JUBILEE HIGH SCHOOL, THYKKATTUSSERY P.O., TURAVOOR, ALAPPUZHA DISTRICT.

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BY ADV GEORGE ABRAHAM

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RESPONDENT/S:

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

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2 DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695 033.

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3 ASSISTANT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA - 688 524.

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4 THE CORPORATE MANAGER ERNAKULAM - ANGAMALY ARCH DIOSIS, KALOOR, ERNAKULAM, COCHIN - 17.

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SMT NISHA BOSE, SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 14582 OF 2021

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JUDGMENT

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The petitioner states that she was initially appointed as Full Time Menial in the St. Raphael's High School, Ezhupunna, an aided school, under the management of the 4th respondent. The said appointment was made to an additional division vacancy available in the said school during the academic year 2009-10. The petitioner states that her appointment was initially rejected on the ground that the Manager had not executed the bond in terms of the Government order dated 17.8.2005. However, later, her appointment was approved with effect from 1.6.2011 by including her in the package brought out by the Government.

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The petitioner contends that she is entitled to get approval from 12.6.2009 onwards. Narrating her grievances, the petitioner approached this Court and pursuant to directions issued, in W.P(C) No.7200/2020, her representation was considered. However, her request was rejected by Ext.P4 order holding that since the appeal filed by the Corporate Manager was pending consideration of the Hon’ble Supreme Court, her request cannot be acceded to. The above order is under challenge in this writ petition, which is filed seeking the following reliefs.

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(i) to issue a writ of certiorari; or any other appropriate writ, order or direction, to quash Exhibit P4 order passed by the 1st respondent.

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(ii) to issue a writ of certiorari; or any other appropriate writ, order or

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WP(C) NO. 14582 OF 2021

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direction, to quash Exhibit P1 order, to the extent it denies approval of appointment of the petitioner as Full Time Menial with effect from 12.6.2009 onwards.

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(iii) to issue a writ of mandamus; or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as Full Time Menial from 12.6.2009 onwards and grant all consequential benefits.

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Dr.George Abraham, the learned counsel appearing for the 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 hands, 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.P4 order.

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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 hand 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.

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I have considered the submissions advanced. In view of the

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nature of the order that I propose to pass, notice to the party respondent is

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WP(C) NO. 14582 OF 2021

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dispensed with.

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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], and in the judgment dated 9.8.2019 in WA 332 of 2017 and connected cases have 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. A mere perusal of Ext.P4 order passed by the 1st respondent would reveal that the main reason for rejecting the claim is the pendency of the writ petition filed by the Managers challenging the Government Order dated 12.1.2010. I am of the opinion that having regard to the view taken by this Court in identical cases, the respondents were bound to pass orders by deeming that the Managers had executed the bond and also that they would be obliged to make appointments from the list of protected hands equal to the number of appointments approved during the ban period.

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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 the petitioner is entitled to succeed.

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Ext.P4 cannot be sustained and the same is set aside.

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There will be a direction to the 1st respondent to reconsider

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Ext.P2, as per procedure and in strict adherence to the

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WP(C) NO. 14582 OF 2021

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provisions of law. An opportunity of being heard, either physically or virtually, shall be afforded to the petitioner or her authorised representative, the Manager as well as affected parties, if any.

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While considering the revision petition, the 1st respondent shall deem that the Manager executed the bond and also that they would be obliged to make appointments from the list of protected hands to the number of appointments approved during the ban period. Needless to mention, the order passed as aforesaid would be subject to the final orders to be rendered by the Hon’ble Supreme Court in the petition filed by the Managers.

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Orders, as directed above, shall be passed expeditiously, in any event, within a period of three months from the date of production of a copy of this judgment.

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The petitioner shall produce a copy of the writ petition along with the judgment before the concerned respondent for further action.

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This writ petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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sru

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WP(C) NO. 14582 OF 2021

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APPENDIX OF WP(C) 14582/2021

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER SHOWING APPROVAL OF APPOINTMENT FROM 1/6/2011. Exhibit P2 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER DATED 28/3/2020. Exhibit P3 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.2827/2021/G.EDN. DATED 24/5/2021.

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RESPONDENTS EXHIBITS:NIL

T.D.Vincy v. State of Kerala

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T.D.Vincy v. State of Kerala

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