In the High Court of Kerala
WP(C).No.23033 of 2018
Petitioner
Smitha S.
Respondent
1. General Education Department [State of Kerala],
2. The Director Of Public Instructions Jagathi,
3. The Deputy Director Of Education -Civil Line,
4. The District Educational Officer Thrissur -Ayyanthole.,
5. The Manager -Sree Rama Krishna Gurukula Vidya Mandir Higher Secondary School
Date of Judgement
29th January, 2019
Bench
Hon’ble Justice N.Nagaresh
Facts:
The petitioner was appointed to the Sree Rama Krishna Gurukula Vidya Mandir Higher Secondary School as a UP School Assistant (UPSA) on 27th June, 2006. When a new vacancy arose in the High School section Smt. Sumithra K.P., the senior most UPSA was called upon to fill the position of High School Assistant (HSA) Mathematics. Subsequently a new vacancy arose, which would lead to the Headmaster not teaching any class. As the next senior most UPSA, the petitioner should have been the new HSA Mathematics. But instead, transferred the existing HSA Mathematics Smt. Sumithra to that post and left the post previously held by Smt. Sumithra to the petitioner.
But on 4th December, 2008 the District Educational Officer, Thrissur rejected the petitioner’s appointment on the grounds that the appointment of Smt. Sumithra was itself not approved. The appeal as filed by the Manager of the School along with the revision petition were both also rejected on the grounds as mentioned above. But meanwhile, the District Educational Officer approved the appointment of Smt. Sumithra.
The General Education Department was ordered to consider the revision petition of the petitioner within a period of three months as per WP(C)No.1707/2017. As the respondent failed to comply with the orders of the court a contempt case C.O.(C)No.373/2018 was filed. There was a ban on creation of additional post from 2005 to 2010, and the WP(C).No.23033 of 2018 additional post would have been sanctioned only if the Manager submitted a Bond as per G.O.(P) No.10/10/G.Edn. dated 12.01.2010. The Manager of the school did not submit any such bond as the order’s legality was brought into question in the Supreme Court.
Issue:
1. Whether the appointment of the petitioner from 2nd June, 2008 to 1st June, 2011 in the vacant position of HSA Mathematics should be approved or not.
Arguments advanced
Arguments of the petitioner:
1. The petitioner argued that since the appointment of Smt. Sumithra has been approved, her own appointment should also be approved by The District Educational Officer, Thrissur.
2. She also argued that the approval to her appointment is being denied by various respondents on different grounds, all of which are unsustainable.
Arguments of the respondents
1. The 4th Respondent – The District Educational Officer, Thrissur states that the petitioner’s HSA appointment was not approved on the grounds that Smt. Sumithra’s appointment itself had not been approved in adherence to the ban against creation of new posts from 2005 to 2010.
2. The additional post aforementioned could have been created only if the school manager would have submitted a bond as per G.O.(P)No.10/10 G.Edn dated 12.01.2010. Later based on orders and circulars given by the government on the subject of regularization of appointment of teachers to additional posts, the approval for the petitioner’s appointment was granted with effect from 1st June, 2011.
3. Also, since the legality of G.O.(P)No.10/10 G.Edn dated 12.01.2010 is pending consideration in the Supreme Court, no decision can be taken till the time the Apex Court has deliberated on the same.
Judgement:
1. The court firstly looked into the vacancy and approval of Smt. Sumithra’s appointments. It was observed that since the District Education Officer approved Smt. Sumithra’s appointment on 10th December, 2008 from the date of 2nd June, 2008 the reasons for rejection of the petitoner’s appointment did not exist anymore.
2. With regards to the per G.O. (P) No.10/10 G.Edn dated 12.01.2010 where the manager of the school has to submit a bond for the appointment of additional teachers, the bench referred to a judgment of a divisional bench of the court which stated that “refusal on the part of the Manager to execute a Bond as required by the Government, cannot affect the legal WP(C).No.23033 of 2018 rights of the teachers appointed.” Hence the court held that “the Government can proceed as if the Managers have executed such Bonds, and should give consequential benefits to the teachers.”
3. Having found no merit in the contentions of the respondents, the Court ruled in favour of the Petitioner with the direction to the respondents 1 to 4 to grant approval to the appointment of the petitioner in the vacancy of HSA Mathematics in the Sree Rama Krishna Gurukula Vidya Mandir Higher Secondary School for the period from 2nd June, 2008 to 1st June, 2011, within a period of two months.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
