JESSY V.CHERIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed initially in the 5th respondent Aided School as Upper Primary School Assistant (UPSA) on 1.6.1989 onwards which was duly approved by the educational authorities concerned in terms of the provisions contained in Kerala Education Act and the Kerala Education Rules (KER) framed thereunder.Later, she was appointed as High School Assistant in the subject of Social Studies, viz., HSA (SS), on 3.7.1991 in the said school and the said appointment was also approved in terms of the rules. For the period from 2.6.1992 to 1.6.2006, the petitioner was sanctioned leave without allowances by the competent authorities concerned as evident from Exts. P -2, P -2 (a), P -2 (b) and P -2 (c) proceedings for joining her husband abroad. Immediately after completing the sanctioned leave, as aforesaid, she had joined back in the 5th respondent Aided School on 2.6.2006. It is the case of the petitioner that the 5th respondent Manager had informed her that due to division fall in the High School section of the said school, she could not be accommodated as HSA and that she can only be appointed to the lower category of UPSA. That believing the said version of the 5th respondent, the petitioner had accepted the said appointment as UPSA in the school from 2.6.2006 onwards and the said appointment was also duly approved. It is the case of the petitioner, that actually as a matter of fact, her lien in the post of HSA was continuing, as the appointees in the post of HSA held by her, were only accommodated her leave vacancies and that the petitioner had erroneously relied on the version given by the Management that consequent to division fall, she has to face reversion as UPSA. As this is not seriously sought for adjudication by the petitioner in this proceedings, this aspect of the matter has not much serious bearing or relevance for determination of any of the issues that this Court has been called upon to adjudicate in this case. It is stated that on 18.9.2010, one Smt.Omana Varghese, who was an HSA in the said school had died, and in that said vacancy the Manager had promoted the petitioner under Rule 43 of Chapter XIV A KER as HSA (SS) on 20.9.2010, as can be seen from the materials in Exts.P -3 and P -3 (a). The 5th respondent Manager had forwarded the proposal for approval for the appointment of the petitioner as HSA (SS) with effect from 20.9.2010, as can be seen from Exts.P -3 and P -3 (a) communications from the Manager addressed to the R -4 (DEO). It is pointed out that respondent No.4 (DEO) had rejected the proposal for approval of the appointment of petitioner as HSA as per the impugned Ext.P -4 order dated 17.3.2011 on the ground that there is no approved integrated seniority list of teachers in the various schools under the Corporate Management of the 5th respondent. The matter was taken up in challenge, which also suffered the fate of rejection as per Ext.P -5 Appellate order dated 18.7.2011 passed by the 3rd respondent (Deputy Director of Education) on the same ground as cited in the impugned Ext.P -4 order. Incidentally, it is also stated in Ext.P -5 proceedings that one Smt.Suja Philip, who is an incumbent in the same school is also staking a claim by filing a writ petition before this Court. The exact details of how the claim of the other incumbent concerned, will affect the claim of the petitioner herein, is not in any manner disclosed in those proceedings. Aggrieved by Ext.P -5, the petitioner had preferred a revision petition under Rule 8 A of Chapter XIV A of KER before the Director of Public Instructions (DPI), who by impugned Ext.P -6 dated 11.05.2012, had rejected the said revision petition and confirmed the orders of the subordinate officers concerned stated above. Thereupon the petitioner was constrained to file a revision under Rule 92 of Chapter XIV A KER before the first respondent Government as per Ext.P -7 petition. The petitioner has also produced Ext.P -6 (a), which is the copy of the provisional seniority list of the teachers in the Corporate Management of the 5th respondent; Ext.P -7 (a) is the notes on the submissions of the petitioner made in the revision and Ext.P -7 (b) is the report of DEO, issued in that regard and Ext.P -7 (c) is the report of the Deputy Director of Education concerned. The Government after affording a reasonable opportunity of hearing to the petitioner, had rejected Ext.P -7 revision petition, as per the impugned Ext.P -8 revisional order, dated 3.8.2013 on an entirely different ground. The ground of rejection stated by the first respondent Government in the impugned Ext.P -8 revisional order is that since the academic year 2006 -2007 onwards, Government had imposed a ban on the approval of appointments in respect of the additional division vacancies in aided schools and that the said ban continued upto issuance of G.O. No.10/2010/G.Edn dated 12.1.2010 (Ext.P -9 herein). In Ext.P -9 G.O, dated 12.1.2010, it was held by the Government that for approving of appointments made to additional division vacancies from the academic year 2006 -07 to 2009 -10, that after approving those appointments made against such additional division vacancies, equal number of protected teachers must be appointed in future vacancies by the Managers of the aided schools concerned. That, after duly appointing such equal number of protected teachers in the school in respect of every future vacancy arising thereafter. That, after approval of appointments made to the additional divisional vacancies, the Manager must make appointments of protected teachers and further appointments to additional division vacancies thereafter in the ratio 1:1 and that Managers of the schools should execute a bond of indemnity agreeing to these conditions. In the light of these aspects borne out by Ext.P -7 G.O, Government has held in Ext.P -8 revisional order that during 2007 -2008, an incumbent was appointed to a post of Hindi teacher in the 5th respondent school and the said appointment was approved in an additional division vacancy pursuant to Ext.P -9 G.O and therefore the Manager of the 5th respondent school is bound to appoint a protected teacher in the next vacancy, which according to the Government, was the vacancy caused due to the death of Smt.Omana Varghese. In this view of the matter, Government has held in Ext.P -8 that the appointment of petitioner as HSA in the said vacancy cannot be approved as the Manager is obliged to appoint a protected teacher to the said vacancy. It is these proceedings of rejection, Exts.P -4, P -5, P -6 and P -8 that are under challenge in this writ proceedings. The writ petitioner has filed the instant writ petition with the following prayers: -

(2.) The first respondent State has filed a counter affidavit dated 25.1.2016, in this writ proceedings. The facts regarding the initial appointment of the petitioner as UPSA and her further promotion as HSA from 3.7.1991 and the facts regarding her sanctioned leave without allowance as stated above are fully admitted in the writ petition. The sheet anchor of the defense made by the first respondent in justifying the impugned rejection order at Ext.P -8 is the same ground as the one stated in Ext.P -8 that one post of LG (Hindi) teacher was sanctioned in the 5th respondent school in the strength of the bond executed by the Manager as per Ext.P -9 G.O. dated 12.1.2010 and that as the appointment made by the Manager in favour of the incumbent concerned to the said post of LG (Hindi) was approved by the Department on that condition, the next vacancy ought to have been filled up by the Manager only by appointing a protected teacher and therefore the appointment of the petitioner as HSA as stated above, cannot be approved and that the revision petition has been rightly rejected by the first respondent Government as per the impugned Ext.P -8 proceedings etc.

(3.) Heard Sri.S.Subash Chand, learned counsel for the petitioner and the learned Government Pleader appearing for the official respondents 1 to 4. Though R5 (Manager) has been duly served with notice in this W.P.(C), he has not chosen to enter appearance. It is also pointed out that R -5 Manager is supporting the claim of the petitioner for approval of appointment as the said Manager is the authority who has appointed the petitioner as HSA for the above said appointment in question.