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Bushrabi Ap v. State of Kerala

Kerala HC13 Oct 2021WP(C)/21286/2021

Case brief

AI extract

What is this about?

The Court set aside an order rejecting a teacher's appointment proposal due to the Manager's failure to execute a bond. Relying on a Division Bench precedent, the Court held that non-execution of the bond shall be deemed as executed, directing the respondents to reconsider the appointment and regularize it.

What did the court decide?

Set aside the order rejecting appointment; directed respondents to reconsider and pass orders expeditiously deeming the bond executed.

Bushrabi Ap Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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WP(C) NO. 21286 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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WEDNESDAY, THE 13^TH DAY OF OCTOBER 2021 / 21ST ASWINA, 1943

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WP(C) NO. 21286 OF 2021

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PETITIONER:

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BUSHRABI AP

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ARABIC TEACHER, VARAM U P SCHOOL, KANNUR, RESIDING AT KHADEEJA, P.O CHEKKIKULAM, KANNUR DISTRICT-670 592 BY ADVS. SURESH KUMAR KODOTH K.P.ANTONY BINU

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001

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2 DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001

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3 ASSISTANT EDUCATIONAL OFFICER, KANNUR (NORTH) ,KANNUR DISTRICT-670 009

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4 MANAGER, VARAM UP SCHOOL, VARAM, KANNUR-670 594

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SMT NISHA BOSE SR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 21286 OF 2021

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JUDGMENT

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Being aggrieved by Exhibit P6 order, by which the 1st respondent has rejected the proposal of appointment of the petitioner as UPSA in the Varam UP School, Kannur from 5.6.2008 to 30.5.2011 on account of the failure of the Manager to execute the bond in tune with G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the petitioner has approached this Court.

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The petitioner states that she was appointed as an Arabic teacher in the Varam UP school, with effect from 05/06/2008 in a newly created vacancy of full-time Arabic teacher as per Exhibit P1 order. It is contended that the Government had, as per G.O (P) No.317/2005/G.Edn. dated 17.8.2005, imposed a ban on the appointment of teachers and nonteaching staff in additional division vacancies. In view of the above the appointment of the petitioner was initially turned down. Later, by G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the ban on appointments was lifted subject to certain conditions. One among the conditions was that the Managers should execute a consent letter undertaking that in future vacancies, protected teachers equal to the number of teachers, appointed to the additional division vacancies during the period 2006-07 to 2009-10, would be appointed. The 4th respondent failed to execute the bond as required in the Government order. Thereafter, the Government issued G.O.

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WP(C) NO. 21286 OF 2021

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(P) No.199/2011/G.Edn dated 01.10.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. The petitioner was also included in the package and her appointment was regularised with effect from 1.6.2011 as is evident from Exhibit P3 order.

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According to the petitioner, the entitlement of the petitioner for approval from the date of appointment is no more res integra as the said position has been settled by this Court in a container of decisions one among which is reported in Moosakutty vs DEO, Wandoor (2009 (3) KLT 863), as affirmed by the Division Bench wherein this Court had directed the respondents to approve the appointment of the teachers from the date of appointment by deeming that the manager has executed the bond.

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In the light of the law laid down by this Court, the petitioners approached this Court by filing W.P.(C) No.16727/2019 seeking directions and pursuant to the same, Exhibit P6 order was passed rejecting the request on the ground that the manager had not executed the bond. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exhibit P6 and also for a direction to the concerned respondents to approve

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the appointment of the petitioner with effect from the date of her appointment for disbursal of the consequential benefits.

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The learned counsel appearing for the petitioner submitted that

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WP(C) NO. 21286 OF 2021

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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 teachers, 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.P6 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 teacher 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

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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.

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The writ petitioner was appointed during the period when the ban, pursuant to G.O.(P) No.10/10/G.Edn. Dated 12.1.2010, was in force. The appointment of the petitioner was approved only with effect from 1.6.2011 on the ground that there was a ban on appointments at the time of her initial appointment and that the Manager had failed to execute the bond

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WP(C) NO. 21286 OF 2021

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in terms of G.O.(P)No.10/10. 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], has 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.P6 order passed by the 1st respondent would reveal that the non-execution of the bond was the sole reason for denying the approval. In that view of the matter, Ext.P6 order insofar as it concerns the petitioner cannot be sustained.

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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 this writ petition can be disposed of by issuing the following directions:

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a) Ext.P6 order passed by the 1st respondent insofar as it concerns the petitioner will stand set aside.

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b) The 1st respondent is directed to reconsider Exhibit P4 in so far as the petitioner is concerned and pass orders with notice to the petitioner as well as the 4th respondent and take a decision, taking note of the law laid down by this Court in Suma Devi (supra). Orders shall be passed expeditiously, in any event, within a period of three

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WP(C) NO. 21286 OF 2021

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months from the date of receipt of a copy of this judgment.

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c) While considering the petition, the Secretary to Government shall bear in mind that the Managers would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. The fact that the petition challenging G.O.(P) No.10/10 filed by the Managers is pending consideration of the Hon’ble Supreme Court shall not be taken as a ground to deny the benefits to the petitioner. It is made clear that the orders passed by the 1st respondent shall be subject to the decision of the Hon’ble Supreme Court in the pending petitions.

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d) It would be open to the petitioner to produce a copy of the writ petition along with the judgment before the concerned respondent for further action.

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The 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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IAP

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WP(C) NO. 21286 OF 2021 7

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APPENDIX OF WP(C) 21286/2021

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PETITIONER'S EXHIBITS:

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Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 05.06.2008 OF THE PETITIONER Exhibit P2 TRUE COPY OF G.O(P) NO.10/10 G EDN DATED 12.01.2010 Exhibit P3 TRUE COPY OF G.O (P) NO.199/211/G EDN DATED 01.10.2011 Exhibit P4 TRUE COPY OF REPRESENTATION/REVISION DATED 17.01.2019 SUBMITTED BY THE PETITIONER Exhibit P5 TRUE COPY OF JUDGMENT DATED 19.06.2019 IN WPC NO.16727/2019 Exhibit P6 TRUE COPY OF ORDER DATED 24.01.2020 ISSUED BY THE GOVERNMENT Exhibit P7 TRUE COPY OF JUDGMENT DATED 17.02.2021 IN WPC.NO.2272/2021

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RESPONDENTS' EXHIBITS:

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NIL

Bushrabi Ap v. State of Kerala

Case brief

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Bushrabi Ap v. State of Kerala

Case brief

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