GIGI CHERIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who was appointed as LPSA in the 4th respondent, School on 21.11.2007, got her appointment approved only w.e.f. 01.06.2011. The petitioner's claim for approval of her appointment as per Ext.P1 has been rejected on the ground of ban on appointments by the Government against additional division vacancies as per G.O.(P) 317/05/G.Edn dated 17.08.2005. However, the Government, thereafter issued Ext.P3 order on 12.01.2010, lifting the ban on a condition that, the Manager shall execute a bond agreeing for appointing equal number of protected teachers in future vacancies and thereafter to apply 1:1 ratio on protected teachers and fresh hands. However, the manager did not execute a bond. It appears that the Manager did not challenge the Government order also. In the above circumstances, petitioner's appointment was not approved. The Government has subsequently issued orders including the teachers' package. Based on this, petitioner's appointment was approved with effect from 01.06.2011. The issue regarding the denial of approval to the appointment made against additional division vacancies, on the basis of the ban orders issued by the Government, in the order dated 17.08.2005, was already considered by me in my Judgment dated 28.06.2017 in Writ petition No. 34935/2016 and directions were issued to the respondent to approve the appointment from the date of appointment .

(2.) Petitioner was appointed at a time when there was justification for sanctioning a post of LPSA. At the same time the Manager filled up the vacancy in gross disobedience of the orders issued by Government, imposing ban on filling up of vacancy in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA of KER, the Manager has to fill up the vacancy in an aided school only in accordance with the rules as well as the orders issued by Government from time to time. In November 2007, the ban order issued on 17.08.2005 was in force and Manager ought not have filled up the additional division vacancy. When the Government lifted the ban conditionally, by issuing Ext. P3 order, on 12.01.2010, the Managers did not execute any bond agreeing to fill up equal number of vacancy by appointing protected teachers. The Managers of various Schools challenged the order unsuccessfully. Ext P3 order was upheld by this court by a common judgment dated 16.03.2011 in a batch of writ petitions reported in Eravannoor A.U.P. School v. State of Kerala: 2011 (3) KLT SN 89 (C.No.91). The Division Bench of this court affirmed that by the judgment in Nair Service Society v. Government of Kerala [2015(2) KLT 625]. It was held that the provisions of the Kerala Education Act and rules do not confer any absolute or unbridled right on the Manager of an aided school to make appointment of teachers and that the Managers have to fill up the vacancies strictly in accordance with the provisions of the Kerala Education Act, Rules and the executive orders and instructions issued from time to time either by the Government or the Director of Public Instruction, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This court found that orders banning appointment were perfectly within the competence of Government. In the meanwhile Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011, introducing teachers' package and directing approval of appointment of the teachers who were continuing without salary, protected hands, etc with effect from 01.06.2011. Based on those orders all the teachers including the petitioner who was continuing in the additional division vacancy without approval got her appointment approved from 01-06.2011. Even though the approval was confined to the period from 01.06.2011, Government did not take a decision on the question of the service rendered by these teachers prior to 01.06.2011. They have been consistently adopting the stand that the question regarding that would be decided later. The fact that there was justification for sanctioning the posts for their appointments is not disputed.

(3.) Now the contention of the learned Counsel for the petitioner that approval is granted to several teachers on the basis of the directions of this court in several cases, requires to be examined.