Kerala High Court
Anuja Gilbert vs State Of Kerala on 12 November, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941
WP(C).No.35704 OF 2015(K)
PETITIONER/S:
1 ANUJA GILBERT
AGED 37 YEARS
W/O.BINOY JACO, NJARACKALODIYIL HOUSE, PAIPPAD
P.OCHANGANASSERRY, KOTTAYAM - 686 537(LOWER PRIMARY
SCHOOL ASSISTANT, EVANGELISTICASSOCIATION LOWER
PRIMARY SCHOOL (EA LPS), THEVEKAD).
2 SANTHI MARY GEORGE
W/O.BAIJU C.ABRAHAM, PARACKAL HOUSE, WEST
OTHERA,THIRUVALLA, PATHANAMTHITTA - 689 151(LOWER
PRIMARY SCHOOL ASSISTANT, EVANGELISTICASSOCIATION,
LOWER PRIMARY SCHOOL (EA LPS),NELLIMALA).
3 SANTHI K.DANIEL
W/O.SUNIL T.DANIEL, 'AARAMAM' PLAPPALLY
P.OKOTTARAKKARA - 691 531 (LOWER PRIMARY
SCHOOLASSISTANT, MARTHOMA LOWER PRIMARY SCHOOL,(MT
LPS), NEDUMPRAYAR).
4 BEENA SAM WO.BIJOY C.GEORGE
THANNICHALIL HOUSE, AYOOR P.O KOLLAM - 691 533(LOWER
PRIMARY SCHOOL ASSISTANT, EVANGELISTICASSOCIATION
LOWER PRIMARY SCHOOL (EA LPS),PALLIKALA).
5 ROSHINI THOMAS
W/O.SAJI K.K, THONDALIL HOUSE, PANAVELI
P.O.KOTTARAKKARA - 691 532 (LOWER PRIMARY
SCHOOLASSISTANT, MAR THOMA LOWER PRIMARY SCHOOL(MT
LPS), MUDIYOORKONAM).
6 BINUKUTTY OOMMEN
W/O.LENI JOHN, PARACKAL HOUSE, WEST
OTHERA,THIRUVALLA, PATHANAMTHITTA - 689 551(LOWER
PRIMARY SCHOOL ASSISTANT, EVANGELISTICASSOCIATION
LOWER PRIMARY SCHOOL (EALPS), OTHERA).
BY ADV. SRI.S.SUBHASH CHAND
WP(C).No.35704 OF 2015(K) 2
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVERNMENTDEPARTMENT OF GENERAL
EDUCATION,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
OFFICE OF THE DIRECTOR OF PUBLIC
INSTRUCTION,THIRUVANANTHAPURAM - 695 001.
3 DISTRICT EDUCATIONAL OFFICER OFFICE OF THE
DISTRICT EDUCATIONAL OFFICER, THIRUVALLA 689
101.
4 THE ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATIONAL
OFFICER,PULLAD. 689 548.
5 THE CORPORATE MANAGER
MARTHOMA AND EVANGELISTIC ASSOCIATION (MT &
EA)SCHOOLS, THIRUVALLA, PATHANAMTHITTA - 689
101.
6 THE ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATIONAL
OFFICER,ARANMULA - 689 533.
7 THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE DISTRICT EDUCATIONAL
OFFICER,PATHANAMTHITTA - 689 001.
8 THE ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATIONAL
OFFICER,PANDALAM - 689 501
R5 BY ADV. SRI.V.A.MUHAMMED
R1 BY ADV. SRI.V.RAJASEKHARAN NAIR
R1 TO 4,6 T0 8 - SRI.JESTIN MATHEW,GOVERNMENT
PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.35704 OF 2015(K) 3
JUDGMENT
Petitioners are all appointed as per Ext.P1 series of orders as Lower Primary School Assistants. When the manager sought approval, it was declined by Ext.P2 series of orders and later the said orders were affirmed as per Ext.P9 series of orders passed by the State Government in revision filed by the petitioners. It is basically challenging Ext.P9 series of order, this writ petition is filed.
2. Ext.P9 series of orders passed by the Government are almost typical in nature. The Government has found that the post in which the petitioner was appointed is a shift abolished one as such protected teacher has to be appointed. Moreover the package order No. GO(P) 199/11/G.Edn. and GO(P) 213/15/G.Edn. were stayed by this Court. Hence the petitioners request for approval was rejected. The paramount contention put forth by the WP(C).No.35704 OF 2015(K) 4 learned counsel for the petitioner is basically relying upon Ext.P6 Government Order dated 25.10.2011 bearing No.60930/J2/11/G.Edn., wherein the Government has stated that to consider the issues raised consequent to the abolition of shift Government would require a list of such schools and the number of vacancies and it was clarified that fresh appointments in such cases will not be allowed from the date of the Government Order. According to the petitioner, the list of the uneconomical schools have not been drawn by the Government so far and moreover the teachers package was interfered with by this Court and the same was quashed. It is also pointed out that, eventhough a subsequent teacher's package order was issued by the Government, the same was also interfered with by this Court.
3. The sum and substance of the contention put forth by the petitioner is that, none of the relevant aspects were taken into account by the State Government while passing Ext.P9 orders. WP(C).No.35704 OF 2015(K) 5 Learned counsel for the petitioner has also invited my attention to a judgment of this Court in W.P.(C) No.39880/2016 dated 12.02.2019 and submitted that under typical circumstances this Court has interfered and necessary reliefs were granted to the petitioner therein. Therefore, learned counsel submitted that since none of these aspects were taken into account by the Government while the impugned orders are passed, the same suffers from the vice of arbitrariness and illegality susceptible to be interfered with by this Court under Article 226 of the Constitution of India.
4. A detailed counter affidavit is filed by the 3rd respondent basically contending that, all the vacancies arose due to the abolition of shift system can be filled up with retrenched teachers and protected teachers vide G.O(MS) No.92/10/G.Edn. Dated 04.06.2010. Moreover the schools where petitioners appointed being uneconomic direct appointment by the manager is not admissible as per GO(P) No.259/2006/G.Edn. Dated 12.10.2006 read WP(C).No.35704 OF 2015(K) 6 together with circular No. 4545/12/2007/G.Edn. Dated 18.05.2007. It is also pointed out that, all the petitioners are appointed only on daily wage basis and so they have no claim as per the provisions in the KER. Hence the petitioners cannot be treated as retrenched/protected teachers. The sum and substance of the contention put forth by the 3rd respondent is that, the direct appointment of the petitioners made by the 5th respondent is irregular in the light of the notification specified above. Therefore Ext.P9 series of orders passed by the State Government is in accordance with law.
5. I have heard learned counsel for the petitioners, learned Government Pleader and the learned Standing Counsel appearing for the University.
6. The discussion made above would make it clear that, in Ext.P9 series of orders, Government has taken into account basically the pendency of the writ petition before this Court challenging the WP(C).No.35704 OF 2015(K) 7 teachers package. As is noted above, the teachers package order was interfered with by this Court in the writ petition and the same was quashed. Eventhough it is stated that due to the abolition of the shift system, the protected teachers are to be appointed in the school, in my considered opinion, the various Government Orders referred to in the counter affidavit filed by the 3 rd respondent before this Court and the Government Order relied upon by the petitioner as well as the judgment of this Court could not be considered by the Government.
7. In that view of the matter, it is better that the Government is directed to re-consider the revisions preferred by the petitioners, taking into account the relevant Government Orders as well as the judgment of this Court referred to above.
8. In that view of the matter, Ext.P9 series of orders passed by the State Government in revision filed by the petitioners are herewith quashed and there will be a direction to the 1 st WP(C).No.35704 OF 2015(K) 8 respondent to re-consider the revision petitions submitted by the petitioners in accordance with law, at the earliest and at any rate, within three months from the date of receipt of a copy of this judgment, after providing opportunity of hearing to the petitioner and the manager of the school.
Sd/-
SHAJI P.CHALY JUDGE hmh WP(C).No.35704 OF 2015(K) 9 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXT.P-1: TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011 OF THE IST PETITIONER EXHIBIT P1(a) EXT.P-1(A): TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011 OF THE 2ND PETITIONER EXHIBIT P1(b) EXT.P-1(B): TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011 OF THE 3RD PETITIONER EXHIBIT P1(c) EXT.P-1(C): TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011 OF THE 4TH PETITIONER EXHIBIT P1(d) EXT.P-1(D): TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011 OF THE 5TH PETITIONER EXHIBIT P1(e) EXT.P-1(E): TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011 OF THE 6TH PETITIONER EXHIBIT P2 EXT.P-2: TRUE COPY OF THE ORDER DATED 30.12.2011 EXHIBIT P2(a) EXT.P-2(A): TRUE COPY OF THE ORDER DATED 15.12.2011 EXHIBIT P2(b) EXT.P-2(B): TRUE COPY OF THE ORDER DATED 30.12.2011 EXHIBIT P2(c) EXT.P-2(C): TRUE COPY OF THE ORDER DATED 3.10.2011 EXHIBIT P2(d) EXT.P-2(D): TRUE COPY OF THE ORDER DATED 2.11.2011 EXHIBIT P2(e) EXT.P-2(E): TRUE COPY OF THE ORDER DATED 30.12.2011 EXHIBIT P3 EXT.P-3: TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O(P) NO.199/2011/G.EDN WP(C).No.35704 OF 2015(K) 10 DATED 1.10.2011 EXHIBIT P4 EXT.P-4: TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O(MS) NO.92/10/G.EDN DATED 4.6.2010 EXHIBIT P5 EXT.P-5: TRUE COPY OF THE COMMUNICATION BEARING NO.H2/35920/2011/DPI DATED 14.10.2011 EXHIBIT P6 EXT.P-6: TRUE COPY OF REPLY NO.60930/J2/11/G.EDN DATED 25.10.2011 EXHIBIT P7 EXT.P-7: TRUE COPY OF THE REVISION PETITION DATED 6.5.2015 EXHIBIT P7(a) EXT.P-7(A): TRUE COPY OF THE REVISION PETITION DATED 24.4.2015 EXHIBIT P7(b) EXT.P-7(B): TRUE COPY OF THE REVISION PETITION DATED 15.4.2015 EXHIBIT P7(c) EXT.P-7(C): TRUE COPY OF THE REVISION PETITION DATED 24.4.2015 EXHIBIT P7(d) EXT.P-7(D): TRUE COPY OF THE REVISION PETITION DATED 15.4.2015 EXHIBIT P7(e) EXT.P-7(E): TRUE COPY OF THE REVISION PETITION DATED 6.5.2015 EXHIBIT P8 EXT.P-8: TRUE COPY OF THE JUDGEMENT DATED 7.7.2015 EXHIBIT P8(a) EXT.P-8(A): TRUE COPY OF THE JUDGEMENT DATED 29.6.2015 EXHIBIT P8(b) EXT.P-8(B): TRUE COPY OF THE JUDGEMENT DATED 1.7.2015 EXHIBIT P8(c) EXT.P-8(C): TRUE COPY OF THE JUDGEMENT DATED 1.7.2015 EXHIBIT P8(d) EXT.P-8(E): TRUE COPY OF THE JUDGEMENT DATED 19.6.2015 EXHIBIT P9 EXT.P-9: TRUE COPY OF THE GOVERNMENT ORDER DATED 7.10.2015 EXHIBIT P9(a) EXT.P-9(A): TRUE COPY OF THE GOVERNMENT ORDER DATED 6.10.2015 WP(C).No.35704 OF 2015(K) 11 EXHIBIT P9(b) EXT.P-9(B): TRUE COPY OF THE GOVERNMENT ORDER DATED 6.10.2015 EXHIBIT P9(c) EXT.P-9(C): TRUE COPY OF THE GOVERNMENT ORDER DATED 7.10.2015 EXHIBIT P9(d) EXT.P-9(D): TRUE COPY OF THE GOVERNMENT ORDER DATED 7.10.2015 EXHIBIT P9(e) EXT.P-9(E): TRUE COPY OF THE GOVERNMENT ORDER DATED 6.10.2015 EXHIBIT P10 EXT.P-10: TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O(P) NO.213/2015/G.EDN DATED 6.8.2015 RESPONDENT'S/S EXHIBITS: NIL