Disposed

Swapna Lekha P.B. v. State of Kerala

Kerala HC11 Sept 2023WP(C)/3665/2021

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an order approving the appointment of a teacher due to pending criminal and child rights complaints. The Court directed the Government to reconsider rival claims between two teachers, emphasizing student welfare and a fresh hearing within three months.

What did the court decide?

Order Ext.P11 set aside; matter remanded to Government for reconsideration of rival claims with hearing of all parties within 3 months.

Swapna Lekha P.B. Vs State of Kerala — Service and Employment | Kerala HC (2023)

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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 VIJU ABRAHAM

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MONDAY, THE 11^TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945

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WP(C) NO. 3665 OF 2021

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PETITIONER:

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SWAPNA LEKHA P.B., AGED 43 YEARS, W/O. RAMESH BABU, UPSA, AIDED UP SCHOOL, CHEERAL, SULTHANBATHERY,, WAYANAD DISTRICT-679 975

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BY ADV R.K.MURALEEDHARAN

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RESPONDENTS:

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1 STATE OF KERALA, REP BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 DIRECTOR OF GENERAL EDUCATION,JAGATHY, THIRUVANANTHAPURAM-695 014

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3 DEPUTY DIRECTOR OF EDUCATION,WAYANAD, WAYANAD DISTRICT673 122 4 DISTRICT EDUCATIONAL OFFICER,KALPETTA, WAYANAD DISTRICT-673 122 5 ASSISTANT EDUCATIONAL OFFICER,SULTHANBATHERY , WAYANAD DISTRICT-679 975 6 THE MANAGER,UP SCHOOL, CHEERAL, SULTHANBATHERY,, WAYANAD DISTRICT-679 975 7 JOBY JOSEPH.P.J.,PULIYAMAKKEL HOUSE, CHEERAL P.O., WAYANAD DISTRICT-673 595 BY ADVS. GOVERNMENT PLEADER SRI.LINDONS C.DAVIS DR.GEORGE ABRAHAM SMT.E.U.DHANYA

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OTHER PRESENT:

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GP SRI M C ASHI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.3665 of 2021 1

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VIJU ABRAHAM,J

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W.P.(C).No.3665 of 2021

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Dated this the 11^th day of September, 2023

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JUDGMENT

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The above writ petition is filed challenging Ext P11 order and for a consequential direction to respondents Nos.4 and 5 to approve the appointment of the petitioner based on Ext.P4 appointment order with effect from 19.12.2016 with all consequential benefits.

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Brief facts necessary for the disposal of

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the writ petition are as follows: One Nisha P.K. was appointed as UPSA as per Ext.P1 order in AUP School, Cheeral. The said Nisha was unauthorizedly absent and later, after following due procedure she was removed from service as is evident from Ext.P2

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and permission was granted to remove her from service as per Ext.P3, which has become final. Petitioner contends that since the said Nisha was

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removed from service with effect from 27.06.2016

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there was an established vacancy from that date and the petitioner was appointed to the said post as

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W.P.(C).No.3665 of 2021 2

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per Ext P4 with effect from 19.12.2016. While so,

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the 7^th respondent was also appointed as an LPSA/UPSA with effect from 01.06.2016 onwards as per Ext.P5. Though Ext.P4 order of appointment was sent for approval, the same was rejected by Ext.P6

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after a lapse of three years and it is the contention of the petitioner that the same was done in violation of Rule 8(2) of Chapter XIV A KER. Petitioner contended that the 7^th respondent who is alleged to have been appointed from 01.06.2016 as per Ext.P5 order was working on daily wages at Govt. LP School, Chettyalath from 01.06.2016 and thereupon the 3^rd respondent directed the 5^th respondent to take appropriate action against the headmaster and the 7^th respondent for permitting the 7^th respondent to sign the attendance register in both the schools as per Ext.P7. A perusal of Ext.P8 would reveal that action is being taken against the delinquents. Subsequently, as an attempt to escape from the illegalities, the 6^th respondent reappointed the 7^th respondent from 09.06.2016 as UPSA in the vacancy of Shri.

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Unnikrishnan who was promoted as headmaster as is

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evident from Exts.P9 and P9 (a). Ext.P9(a) appointment of the 7^th respondent with effect from 09.06.2016, i.e. with retrospective effect is illegal. The approval of the appointment of the 7^th respondent was rejected as per Ext.P10 for the reason that the 7^th respondent has signed the attendance register in two schools and further that complaints are pending before the Child Rights Commission and also before the police. Aggrieved by the non-approval of the appointment of the petitioner, a revision petition was preferred by her challenging Ext.P10 order, the 7^th respondent also filed a revision petition and both were heard together and Government issued Ext.P11 order holding that 7^th respondent is the senior appointee and he is entitled for appointment in the vacancy occurred on withdrawal of appointment of Nisha P.K. from 01.06.2015 after finalizing the case pending before the Police and the Child Rights Commission and thereafter the claim of the petitioner could be considered. Petitioner submits that Ext.P11 order

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is illegal, erronoeus in as much as the 1st respondent did not consider the fact that there is no valid appointment order in favour of the 7^th respondent and that Ext.P12 FIR has been registered against him.

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The 6^th respondent has filed a detailed

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counter affidavit wherein it is stated that even though disciplinary proceedings were initiated against the 7^th respondent for having worked in the Government school as well as in the present school,

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the said disciplinary proceedings ended up by

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giving strict warning on a finding that no amount was received by the 7^th respondent from either of the schools. As regards the order disqualifying the

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manager, it is submitted that the same was challenged in WPC No. 36401 of 2017 and the said order disqualifying the manager was set aside as per judgment dated 23.11.2017. The 7th respondent was initially appointed from 01.06.2016, though the proposal was rejected earlier pursuant to the order issued by the director dated 13.12.2017 by Ext.R6 (a) order, the AEO directed the manager to resubmit

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the appointment proposal again. Thereupon, Exts.

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P9 and P9(a) proposals were submitted on 06.09.2018

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as per the direction in Ext.R6(a) and the delay

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alleged in the writ petition occurred while considering the appeal and other proceedings. Admittedly, the 7^th respondent is senior to the petitioner and therefore he is eligible for

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approval prior to the petitioner and therefore, issuance of Ext.P11 order is perfectly legal and valid. As regards Ext.P12 FIR, the 7^th respondent is acquitted on finding that it was a false case which was registered based on a complaint filed by the petitioner. The proceedings before the Kerala State Commission for Protection of Child Rights was also closed by issuing certain general directions.

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The 7^th respondent has also filed a counter

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affidavit wherein it is contended that he was appointed as UPSA on 09.06.2016 which was made against the promotion vacancy of one, C.

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Unnikrishnan who was promoted as a headmaster and

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Smt. P.K. Nisha was appointed as UPSA in the

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retirement vacancy of one, K. Padmanabhan and her

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appointment was not in the promotion vacancy of C. Unnikrishnan as claimed in the writ petition. The appointment of the 7^th respondent was not approved for the reason that a crime has been registered against him and on finding that the case against the 7^th respondent is a false case, Ext.R7(b) refer report was submitted on finding that the crime was registered on a false complaint submitted by the petitioner herein and consequently, he was acquitted as per Ext.R7(a) judgment dated 06.08.2022. As regards the complaint preferred

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before the Kerala State Commission for Protection of Child Rights, it is submitted that the said proceedings were closed by issuing certain general directions as per Ext.R7(c)order. The delay as contended by the petitioner on the basis of Rule 8(2) of Chapter XIVA KER is not correct in as much as the director of public instructions in the appeal preferred by the 7^th respondent challenging the rejection of approval of his appointment has directed reconsideration of the rejection order and on basis of the same Ext.R6(a) communication was

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issued to the Manager by the AEO to resubmit the

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proposal for appointment of the 7^th respondent. Therefore, the delay alleged is without any basis.

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A detailed counter affidavit has been filed

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by the 3^rd respondent wherein it is contended that the 7^th respondent was appointed with effect from

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01.06.2016 and the nature of vacancy was not clearly stated in the appointment order and thereupon another proposal was submitted for the appointment of 7^th respondent as UPSA from 09.06.2016. While the 7^th respondent was working as UPSA from 09.06.2016, the Manager appointed the petitioner as UPSA from 19.12.2016 against the unauthorized leave vacancy of Smt. Nisha P.K. who was later on removed from service on 27.06.2016. Since 7^th respondent was continuing as UPSA from 09.06.2016 there was no vacancy existing from 19.12.2016 and thereupon the proposal for

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appointment of the petitioner was rejected as per Ext.R3(a) order dated 06.03.2017 and therefore the

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claim of the petitioner regarding violation of Rule 8(2) of Chapter XIV A KER is not true. The Manager

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again appointed the petitioner with effect from 02.06.2017 and the said proposal was again rejected as per Ext.R3(b) order dated 07.10.2017 and therefore the allegation of delay of around three years in rejecting the approval of the appointment of the petitioner is not correct. It is true that though the Manager was disqualified by the DEO Wayanad, the said disqualification was set aside by this Court in WPC No. 36401/2017. The earlier appointment of the 7^th respondent was rejected for the reason that the 7^th respondent has also worked in Government School from 01.06.2016 to 08.06.2016 and on the basis of criminal case as well as complaint pending against him. Thereupon, the Manager issued a letter to consider his appointment with effect from 09.06.2016 in the promotion vacancy of Shri. C. Unnikrishnan whereby avoiding the period the 7^th respondent has worked in the Govt LP School. The appointment of the petitioner with effect from 02.06.2017 was also rejected. Later, as per the direction issued by this court in

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WPC No.3445/2020 and 10642/2020, the first

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respondent heard all concerned and issued Ext.P11

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order to consider the appointment of the 7^th

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respondent after finalization of the criminal case as well as the complaint preferred before the

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Kerala State Commission for Protection of Child

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Rights and the appointment of the petitioner could be considered thereafter.

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As directed by this court, the 5^th

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respondent has filed a statement wherein it is reported that there exists a vacancy of one UPST in the academic year 2016-17 and another vacancy for the academic year 2017-18 in the post of UPST.

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I have heard the rival contentions of both sides.

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Going by the pleadings and contentions

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raised, the petitioner was appointed as per Ext.P4 order dated 19.12.2016 whereby she was appointed as UPST with effect from 19.12.2016 in the vacancy of

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one P.K. Nisha who was unauthorizedly absent. The said P.K. Nisha was removed from service as per

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Ext.P3 order dated 17.11.2017 with effect from

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27.06.2016. The 7^th respondent was appointed with

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effect from 01.06.2016 as per Ext.P5 order. One of

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the prime contentions raised by the petitioner is that her proposal for approval for appointment was rejected as per Ext.P6 order after almost three years from the date of appointment and therefore, the same is in violation of Rule 8(2) of Chapter XIV A KER. The said argument appears to be not correct in view of the contentions in the counter affidavit filed by the 3rd respondent which clearly stated that the original proposal was rejected by the AEO on 06.03.2017 by Ext.R3(a) and the

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subsequent proposal was also rejected as per Ext.R3 (b) dated 07.10.2017. It is also pertinent to note that though the petitioner was appointed with effect from 19.12.2016 in the vacancy of Smt. P.K. Nisha whose service was terminated only as per Ext. P3 order dated 17.11.2017 though with effect from 27.06.2016. Therefore, on the date of Ext.P4, Smt. P.K. Nisha was not yet removed from service. Therefore, the contention of the petitioner that there is a long delay of three years in considering the proposal for appointment of the petitioner is

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only to be rejected and therefore, the contention of the petitioner based on Rule 8(2) of Chapter XIV A KER is without any basis.

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Further contention taken by the petitioner is that the 7^th respondent had worked at Government LPS School, Chettiyalath, while he was appointed and working at Cheeral AUPS School which is a serious misconduct. It is further contended that 7^th respondent is an accused in a crime and that a complaint is pending before the Kerala State Commission for Protection of Child Rights and that it is on the basis of these allegations that the proposal for appointment of the 7^th respondent was rejected as per Ext.P10 and that it is only to escape from the said illegality that the 7^th respondent was reappointed with effect from 09.06.2016 in the promotion vacancy of Shri. Unnikrishnan and therefore, it is contended that appointment order with retrospective effect cannot be effected. Since no valid appointment order was forwarded for approval of the appointment of the 7^th respondent within the time prescribed under

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Rule 8(1) of Chapter XIV A KER, the findings in Ext.P11 is absolutely incorrect and against the law. In the counter affidavit filed by the 6^th respondent it would reveal that for the alleged working of the 7^th respondent simultaneously in a Government school for the period from 01.06.2016 to 08.06.2016 after the appointment in the present

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school, disciplinary proceedings were initiated and on finding that the 7^th respondent has not received any amount from the Government School or from the present school, proceedings were closed by giving strict warning and also by revising the appointment

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date as 09.06.2016, a day after his period of unauthorized working in the Government school. It

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is also seen that as regards the order disqualifying the manager for the inaction on his part to take appropriate action against the 7^th respondent, the same was set aside by this court in WPC No. 36401 of 2017. But a crucial aspect was not considered by the Government while issuing Ext.P11 order. The initial appointment of the petitioner was as per Ext.P4 w.e.f. 19.12.2016 in the vacancy

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of Smt. P.K. Nisha, UPST who was on unauthorized absence. Whereas, the 7^th respondent was appointed as per Ext.P5 order dated 01.06.2016, w.e.f. the date of the appointment. The vacancy to which the petitioner was appointed is not clearly stated in the appointment order. It is an admitted fact that the 7^th respondent had worked from 01.06.2016 to 09.06.2016 in a Government School while he was in service at AUP School, Cheeral. It is seen that the said appointment was not approved and thereafter,

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by Ext.P9(a) order, the 7^th respondent was

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reappointed w.e.f. 09.06.2016 in a promotion vacancy of one Shri.Unnikrishan who was working as UPSA. But a perusal of Ext.P9 would reveal that the said order was forwarded for approval by the Manager as per covering letter dated 06.09.2018 which was pursuant to Ext.R6(a) order dated 27.07.2018. Even though in Ext.P9(a) the date is seen as 09.06.2016 it is without any doubt the same has been issued only after the issuance of Ext.R6 (a) order dated 27.07.2018. It is on the basis of the same that the petitioner contended that she was

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appointed prior to the 7^th respondent and even if the contention that an established vacancy could be available only on issuance of Ext.P3 order dated 17.11.2017, the appointment of the 7th respondent as per Exts.P9 and P9(a) was much after that. The said aspect was not properly considered while issuing Ext.P11 order.

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Yet another disturbing circumstance which is of serious importance is regarding the conduct of both the petitioner as well as the 7^th respondent. As regards the criminal case in which

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the 7^th respondent is involved, it is the case of the 7^th respondent that Ext.R7(b) final report in the said crime that the same has been registered

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based on a false complaint preferred by the petitioner herself on an apprehension that the appointment of the 7th respondent would be approved and her approval of appointment will be rejected. It is further submitted that as per Ext.R7(a) judgment, the 7^th respondent was acquitted of the charges levelled against him. As regards the complaint before the Kerala State Commission for

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Protection of Child Rights, it is the contention of

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the 7^th respondent that the same has been closed by issuing general directions. But a perusal of Ext.R7(c) which is the order passed by the Kerala State Commission for Protection of Child Rights, especially paragraph 7 of the said order, it could be seen that a report has been submitted by the Deputy Director of Education, Wayanad, Kalpetta that disciplinary proceedings have been recommended against the 7^th respondent and necessary directions have been issued to the Asst. Education Officer, Bathery in this regard. What is the outcome of the said recommendation is not brought to the notice of this court by either of the parties.

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Chapter XIV B of Kerala Education Rules, 1959 deals with Conduct Rules regarding teachers. Rule 1 of Chapter XIV B mandates that every teacher shall at all times maintain a high example of personal and professional integrity and devotion to duty. Chapter IV of the Right of Children to Free and Compulsory Education Act 2009 deals with the responsibility of schools and teachers and Section

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17(1) specifically mandates that no child shall be

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subjected to physical punishment or mental harassment and whoever contravenes the same, such delinquent shall be liable for disciplinary action. Ultimately, schools are established and teachers are appointed for the benefit and well being of the students whose interest is of prime importance. The counter affidavit filed by the 3rd respondent would reveal that the appointment of the 7^th respondent can be considered only after finalization of the criminal case and the complaint pending before the Kerala State Commission for Protection of Child Rights and further that only after finalizing the same, the appointment of the petitioner could be considered. From the facts and pleadings before this Court, it could be seen that the allegations which led to the issuance of Ext. R7(c) order by the Kerala State Commission for Protection of Child Rights prima facie appear to be very serious. Even disciplinary action was recommended against the 7^th respondent. Taking into consideration the seriousness of the allegations

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which affect the rights of the children, the

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commission was even constrained to issue general directions for protecting the rights of the children. What is the outcome of the disciplinary proceedings against the 7^th respondent as seen from Ext.R7(c) is not forthcoming. As regard the petitioner is concerned, a perusal of Ext.R7(a),(b)

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and R7(d) (true copy of the judgment dated 06.08.2022 in CC No. 81/2019 of JFCM-I, Sultan Bathery) reveals serious allegations against her of having preferred a false complaint against a colleague, the 7^th respondent herein.

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In view of the above, I am of the opinion that the matter requires serious reconsideration at the hands of the 1^st respondent Government in the light of the observation made by this court herein above. Therefore, there will be a direction to reconsider the rival claims of the petitioner as well as the 7^th respondent. To facilitate a proper

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reconsideration of the matter, Ext.P11 order is set aside. It is further directed that the Government while reconsidering the matter as directed above

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shall take into consideration the observations in Ext.R7(c) order of the Kerala State Commission for Protection of Child Rights especially paragraph 7 and the outcome of the said direction and also Ext.

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R7(a),R7(b) and R7(d) (true copy of the judgment dated 06.08.2022 in CC No. 81/2019 of JFCM I, Sultan Bathery). Copies of the said orders shall be made available by the petitioner/7^th respondent before the Government within a period of two weeks from the date of receipt of copy of this judgment. It is further ordered that a fresh decision in the

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matter shall be taken by the 1^st respondent Government in the light of the facts and circumstances and the provision of law as stated above and specifically taking into consideration the fact that the interest of the student community is more important when compared to the request for approval of appointment of the petitioner and the 7th respondent since there are allegations against both the petitioner as well as the 7^th respondent and also taking into consideration how far the appointment of such persons as teachers would be

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detrimental to the best interest of the student community. It is further ordered that the 1^st respondent Government while reconsidering the matter as directed above shall afford reasonable opportunity of being heard to the petitioner, the 7^th respondent as well as the 6^th respondent manager and take a final decision in the matter in accordance with law within a time limit of 3 months from the date of receipt of a copy of the judgment.

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With the above said observation and

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directions, the writ petition is disposed of.

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sd/-

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VIJU ABRAHAM, JUDGE

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APPENDIX OF WP(C) 3665/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1	A TRUE COPY OF THE APPOINTMENT ORDER OF NISHA.P.K. DATED 0-2.06.2014
EXHIBIT P2	A TRUE COPY OF THE COMMUNICATION FROM THE 5TH RESPONDENT TO THE 4TH RESPONDENT DATED 23.05.2017
EXHIBIT P3	A TRUE COPY OF THE ORDER DATED 17.11.2017
EXHIBIT P4	A TRUE COPY OF THE APPOINTMENT ORDER DATED 19.12.2016 ALONG WITH THE STATEMENT OF STAFF
EXHIBIT P5	A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2016
EXHIBIT P6	A TRUE COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT DATED 23.09.2019
EXHIBIT P7	A TRUE COPY OF THE COMMUNICATION FROM 3RD RESPONDENT TO 5TH RESPONDENT DATED 21.10.2017
EXHIBIT P8	A TRUE COPY OF THE COMMUNICATION DATED 07.12.2017 FROM THE 2ND RESPONDENT
EXHIBIT P9	A TRUE COPY OF THE COVERING LETTER DATED 06.09.2018
RESPONDENTS EXHIBITS
Exhibit R7(a)	TRUE COPY OF THE JUDGEMENT DATED 6-8 2022 IN C.C NO.81/2019.OF THE JFCM-1 SULTHAN BATHERY
PETITIONER EXHIBITS
Exhibit-P13	true copy of the appeal petition dated 25.04.2017 filed by the 6th respondent before the 2nd respondent.
Exhibit-P14	true copy of the letter issued by the 2nd respondent to the 5th respondent darted 22.06.2018

Swapna Lekha P.B. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Swapna Lekha P.B. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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