Dismissed

The Manager, v. the State of Kerala

Kerala HC6 Jul 2022WP(C)/2566/2021

Case brief

AI extract

What is this about?

Writ petition challenging the rejection of protected teacher appointments on the ground that bond conditions lapsed due to post abolition was dismissed. Court held petitioner must comply with bond terms and submit appointment proposals to government authorities.

What did the court decide?

Writ petition dismissed; petitioner directed to comply with bond conditions and submit appointment proposals to authorities.

The Manager, Vs the State of Kerala — Contract and Commercial Disputes | Kerala HC (2022)

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WP(C) NO. 2566 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 6^TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

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WP(C) NO. 2566 OF 2021

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PETITIONER/S:

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THE MANAGER, AL-FAROOKHIYA H.S, CHERANALLOOR, ERNAKULAM-682 034, REPRESENTED BY CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, MARKAZU SAQUAFATHI SUNNIYYA, KARANTHOOR, KOZHIKODE-673 571.

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BY ADVS. P.J.MATHEW SRI.EBIN MATHEW SMT.AKHILA SHOJI

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT ANNEX-II, THIRUVANANTHAPURAM-695 001.

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2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.

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3 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, ERNAKULAM, PIN-682 030.

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4 THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, PIN-682 312.

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5 SREEDEVI T, UPST, AL-FAROOKHIYYA H.S,CHERANELLOOR, ERNAKULAM-682 034.

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6 MUHAMMED RAFIQUE C.A, OFFICE ATTENDANT, AL-FAROOKHIYA HIGH SCHOOL, CHERANELLOOR, ERNAKULAM-682 034. 7 AMEER M.S, FULL-TIME MENIAL OFFICE ATTENDANT, AL-FAROOKHIYA HIGH SCHOOL, CHERANELLOOR, ERNAKULAM-682 034. BY ADVS. SRI.D.ANIL KUMAR SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SHRI.MANAS P HAMEED SMT. NISHA BOSE, SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 2566 OF 2021

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JUDGMENT

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The instant writ petition is filed by the petitioner who functions as the

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Manager of the Al-Farookhiya High School, Cheranalloor seeking a declaration

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that Ext.P4 bond executed by him to accommodate equal number of

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protected teachers is invalid and unenforceable and also for issuance of a writ of mandamus commanding the respondents to approve the appointment

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of respondents 5 to 7 from their respective dates of appointment and for incidental reliefs.

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The short facts are as under:

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The petitioner herein is the Manager of Al-Farookhiya High School,

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Cheranalloor. In view of the economic ban imposed by the Government, the

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appointments made by the petitioner in the year 2006-2007 in anticipation of sanctioning of additional posts were rejected by Ext.P1 order by the 4th

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respondent. It is contended that during the academic year 2008-2009 and 2009-2010, two additional posts of UPSAs were lost due to division fall.

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However, in view of Ext.P2 staff fixation order dated 22.03.2011 for the academic years commencing from 2006-2007 to 2010-2011, one additional

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post of HSA and two posts of UPSAs were sanctioned in respect of the academic year 2006-2007. However, as per Ext.P3 staff fixation order for the academic year 2012-2013, the additional posts sanctioned in 2006-2007 were abolished. While so, a certain Sabitha Mytheen T.M., HSA working in the school approached this Court being aggrieved by the non approval of her post and, in compliance of the judgment rendered by this Court, the petitioner filed Ext.P4 declaration that in future vacancies, protected teachers

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would be appointed conforming to the 1:1 ratio in tune with G.O.(P) No.10/10/G.Edn. dated 12.01.2010.

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The petitioner contends that the posts sanctioned and approved on

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the strength of Ext.P4 have all been abolished and consequently, the teachers were absorbed in regular posts that arose due to retirement.

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According to the petitioner, in view of the above turn of events, the petitioner is not bound to appoint an equal number of protected teachers in

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the school.

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The petitioner contends that the 5th respondent, who was absorbed

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in a regular vacancy with effect from 02.06.2006 approached the Government and preferred a revision petition and pursuant to directions issued by this Court, the 1st respondent, after considering the contentions of

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all concerned, has issued Ext.P5 order directing the DEO to approve the appointment after ensuring that the petitioner complies with the conditions stated in Ext.P4 declaration/bond. According to the petitioner, as the teachers were absorbed in retirement vacancies, there is no justification on the part of

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the 1st respondent to insist that protected teachers should be appointed.

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It is further contended that the petitioner had appointed the 6th respondent after promoting him from the post of Full Time Menial (FTM) in a retirement vacancy which arose on 31.03.2020. In the resultant vacancy

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which arose due to the promotion of the 6th respondent, the 7th respondent was appointed as FTM with effect from 17.08.2020. The proposals for approval of the appointment of respondents 6 and 7 were rejected by the 4th respondent by Exts.P6 and P7 orders on the ground that the petitioner had

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failed to comply with the conditions of the bond.

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The petitioner contends that as he has appointed 12 protected

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teachers, the respondents are not justified in insisting that regular posts ought to be set apart as directed in Exts.P5 to P7. It is in the afore

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circumstances that the petitioner is before this Court seeking a declaration that Ext.P4 bond is invalid and for a further direction commanding the official respondents to approve the appointments of respondents 5 to 7 from their respective dates of appointments.

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A counter affidavit has been filed by the 4th respondent. After

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narrating the sequence of events, it is stated that the petitioner has already executed the bond and hence, he is bound to appoint protected teachers in

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terms of G.O.(P) No.10/10/G.Edn. It is stated that the appointment of respondents 6 and 7 were made during the academic year 2020-2021 and as

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the petitioner has executed a bond declaration in terms of G.O.(P) No.4/2021/G.Edn dated 06.02.2021, the proposal for approval of respondents 6 and 7 cannot be approved.

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A counter affidavit has been filed by the 5th respondent wherein it

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WP(C) NO. 2566 OF 2021

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is stated that she was appointed as UPSA on 03.07.2006 against an additional anticipated post for the academic year 2006-2007. According to the said respondent, when the proposal for approval for the period from 03.07.2006 to 01.06.2008 was rejected, a revision petition was preferred and pursuant to directions issued by this Court, Ext.P5 order was passed by the 1st respondent on 3.01.2020. The Manager was also heard before passing

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the said order. The said order has become final. When the District Educational Officer (DEO) refused to grant approval of the appointment of respondents 6 and 7 for non compliance of the conditions of bond by the Manager, the petitioner has chosen to challenge Ext.P5 order, that too after the lapse of one year. Furthermore, instead of challenging Exts.P6 and P7 orders, which are appealable, the petitioner has chosen to challenge the said orders belatedly before this Court. It is stated that the attempt of the Manager is to water down the bond after obtaining the benefits of the same.

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In the counter affidavit filed by respondents 6 and 7, they have

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supported the stand of the petitioner and according to them, as additional posts created in the academic year 2006-2007 have already been abolished

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and the incumbents having been appointed in regular vacancies, the bond

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executed by the Manager cannot be enforced.

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I have heard Sri.P.J Mathew, the learned counsel appearing for the

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petitioner, Sri. D. Anil Kumar, the learned counsel appearing for the 5th respondent, Sri.Rafeek V.K., the learned counsel appearing for respondents 6 and 7, and Smt. Nisha Bose, the learned Government Pleader.

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I have considered the submissions advanced and have perused the

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records.

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It is undisputed that the petitioner had submitted a bond declaration undertaking that he shall appoint protected teachers on the basis

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of G.O.(P) No.10/10 G.Edn. dated 12.01.2010. In terms of the bond, the petitioner was bound to appoint protected teachers. I also find that in terms of Ext.P5 order, the 1st respondent had directed the grant of approval of appointment of the 5th respondent by ensuring that the manager had executed the bond. However, from the stand taken by the Government and also the counter affidavit of the 5th respondent, it appears that the petitioner

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WP(C) NO. 2566 OF 2021

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has not so far submitted the appointment proposal in so far as the 5th respondent is concerned. The petitioner is bound to comply with G.O.(P) No.4/2021 dated 06.02.2021 by virtue of which, guidelines were issued by

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the Government for the approval of appointments made against additional posts and other regular posts for the period from 2016-2017 to 2019-2020. Undisputedly, the appointment of the 6th respondent is for the period 2020-

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2021 and being a Rule 43 claimant, the said respondent has a claim to the post of Office Attendant. I am not impressed with the contention advanced by the learned counsel that the bond declaration executed by the petitioner would lapse as the additional posts were abolished. No materials have been produced before this Court by the petitioner to substantiate that he has appointed protected teachers in compliance with the bond executed. Furthermore, Ext.P5 order passed by the 1st respondent was issued on 03.01.2020 after hearing all concerned and it was after rejection of the proposal for approval of the appointment of the 6th respondent that the petitioner has chosen to challenge Ext.P5 order.

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Having considered the entire facts, I am of the view that the

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petitioner has not made out any case for the reliefs sought for. The petitioner is bound to comply with the conditions of Ext.P4 bond. The petitioner is also bound to submit the appointment proposal of the 5th respondent so that

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steps can be taken by the educational authorities to act in terms of Ext.P5 order. Furthermore, I find that the petitioner has already challenged Ext.P6 order by preferring an appeal before the 3rd respondent and the same is

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pending. In the facts and circumstances, I find no reason to interfere with the orders passed by the respondents in exercise of the discretionary powers

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under Article 226 of the Constitution of India.

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This writ petition will stand dismissed.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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WP(C) NO. 2566 OF 2021

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APPENDIX OF WP(C) 2566/2021

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PETITIONER(S) EXHIBITS :

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EXHIBIT P1 A TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 3.6.2008 EXHIBIT P2 A TRUE COPY OF THE STAFF-FIXATION ORDER DATED 22.3.2011 ISSUED BY THE 4TH RESPONDENT EXHIBIT P3 A TRUE COPY OF THE STAFF-FIXATION ORDER FOR 2012-13. EXHIBIT P4 A TRUE COPY OF THE DECLARATION DATED 17.12.2010 ALONG WITH TYPED COPY EXHIBIT P5 A TRUE COPY OF ORDER DATED 3.1.2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6 A TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 15.01.2021 EXHIBIT P7 TRUE COPY OF GO(P) NO.3/2017 DATED 25.2.2017 A TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 31.12.2020 EXHIBIT P8 A TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.10/2010/G.EDN DATED 12.1.2010

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RESPONDENT(S) EXHIBITS :

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EXHIBIT R5(a) TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.17948/2019 DATED 2.7.2019. EXHIBIT R6(a) TRUE COPY OF APPOINTMENT ORDER DATED 17.06.2020 ISSUED BY THE PETITIONER IN FAVOUR OF THE 6^TH RESPONDENT. EXHIBIT R6(b) TRUE COPY OF APPOINTMENT ORDER DATED 17.08.2020 ISSUED BY THE PETITIONER IN FAVOUR OF THE 7^TH RESPONDENT.

The Manager, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

The Manager, v. the State of Kerala

Case brief

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What did the court decide?

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