IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 34200 of 2010(Y) -------------------------- PETITIONER(S): ----------------------- 1. SARI KRISHNA, LPSA, MANNAM MEMORIAL HIGH SCHOOL, NARIAMPARA, RESIDING AT CHIRAKARA HOUSE, VELLAYAMKUDI PO., KATTAPPANA. 2. JISHA M.G., LPSA, MANNAM MEMORIAL HIGH SCHOOL, NARIAMPARA, RESIDING AT MULLAKKAL PATTATHIL HOUSE, CHIRAKADAVU CENTRE P.O., KOTTAYAM. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN SMT.MINI A.V. RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPT.,GOVT.SECRETARIAT, THIRUVANANTHAPURAM – 1. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM – 1. 3. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI DISTRICT, THODUPUZHA – 685 584. 4. THE DISTRICT EDUCATIONAL OFFICER, KATTAPPANA, IDUKKI DISTRICT – 685 508. 5. THE MANAGER, MANNAM MEMORIAL HIGH SCHOOL, NARIAMPARA, IDUKKI DISTRICT – 685 508. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 34200 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the appointment order of the 1st petitioner. Ext.P1A :- Copy of the appointment order of the 2nd petitioner. Ext.P2 :- Copy of the order No.B5/5934/2008/K.Dis dated 14.1.2009 of the 4th respondent. Ext.P2A :- Copy of the Order No.B5/5198/2008/K.Dis dated 30.1.2009 of the 4th respondent. Ext.P3 :- Copy of the Order No.K.Dis/3534/09/B5. Dated 18.5.2009 of the 3rd respondent. Ext.P3A :- Copy of the Order No.B5/3536/09/K.Dis dated 18.5.2009 of the 3rd respondent. Ext.P4 :- Copy of the Order No.EC(2)/57146/09/PI/D.Dis dated 5.12.2009 of the 2nd respondent. Ext.P4A :- Copy of the Order No.E.X.2/57147/09/DPI/K.Dis dated 11.12.2009 of the 2nd respondent. Ext.P5 :- Copy of the revision petitions u/r.92 of Chapter XIVA submitted by the 5th respondent before the 1st respondent dated 30.1.2010. Ext.P5A :- Copy of the revision petitions u/r.92 of Chapter XIVA submitted by the 5th respondent before the 1st respondent dated 30.1.2010. Ext.P6 :- Copy of the G.O.(P)No.104/2008/G.Edn dated 10.6.2008. Ext.P7 :- Copy of G.O.No.169/04/G.Edn. dated 15.6.2004. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge K.T.SANKARAN, J. ------------------------------ W.P.(C).No.34200 OF 2010 ------------------------------ Dated this the 23rd day of November, 2010 JUDGMENT The first petitioner was appointed as LPSA in a regular vacancy in Mannam Memorial High School, with effect from 27.6.2008, as per Ext.P1 appointment order. The second petitioner was appointed as LPSA in the same school with effect from 9.6.2008, as per Ext.P1A appointment order. It is stated that the second petitioner was appointed in the vacancy which arose on the resignation of one Abhilash R, on his getting appointment in a Government School. The proposal for approval of the appointment of the petitioners was forwarded to the District Educational Officer. The District Educational Officer, as per Exts.P2 and P2A orders dated 14.1.2009 and 30.1.2009, declined approval of the appointment of the petitioners respectively, on the ground that the duration of the appointment is less than one academic year, and therefore, the W.P.(C).No.34200 OF 2010 2 appointment could be made only on daily wage basis, in the light of G.O.(P) No.104/08/G.Edn. dated 10.6.2008. The orders passed by the District Educational Officer were challenged before the Deputy Director of Education, who as per Exts.P3 and P3A orders dated 18.5.2009 rejected the appeals. The Manager filed revision petitions against the orders passed by the Deputy Director of Education. The Director of Public Instruction, as per Exts.P4 and P4A orders dated 5.12.2009 and 11.12.2009, dismissed the revisions. Challenging the orders passed by the Director of Public Instruction, the Manager filed Exts.P5 and P5A revisions before the first respondent, which are pending disposal. 2.The reliefs prayed for in the Writ Petition are the following: “I. Declare that the bracketed portion in Sub Clause I to Clause V of Ext.P6 is arbitrary and illegal and strike down the same as ultravires and not inconsonance with the other provisions of the KER essentially in view of the provisions in Rule 4 of Chapter VI and W.P.(C).No.34200 OF 2010 3 Rule 12 of Chapter XXIII of the KER. II. Issue a writ of certiorari or other appropriate writ order or direction quashing Ext.P2, P2A, P3, P3A, P4 and P4A as arbitrary illegal and without the application of mind. III. Issue a writ of mandamus or other appropriate writ order or direction commanding the 4th respondent to consider the appointment of the petitioners' w.e.f.1.6.2009 for the academic year 2009-2010 notwithstanding the pendency of Ext.P5, and approve their appointment and disburse their salary. IV. Issue a writ of mandamus or other appropriate writ order or direction commanding the first respondent to consider Ext.P5 and P5A and pass appropriate orders. V. Issue such other writ order or direction, as this Hon'ble Court may deem fit and proper to meet the ends of justice. And VI. Award costs.” 3. In Unni Narayanan v. State of Kerala, (2009(2) KLT 604), it was held that the appointments made to regular vacancies, having duration of one academic year or more, are liable to be approved and G.O.(P) No.104/08/G.Edn. dated 10.6.2008 cannot be invoked to deny the approval. It was held thus: W.P.(C).No.34200 OF 2010 4 “7. In certain circumstances, the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the Writ Petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government. In this context, we notice R.7A of Chap.XIV A of the K.E.R., which reads as follows: “7A(1) xxxx xxxx xxxx (2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up.” 8. We notice that sub-r.(3) of R.7A speaks of vacancies, the duration of which is less than one academic year. In other words, if the vacancy is having a duration of one academic year or more, appointment can be made to fill up the same. The term of appointment need not be co-terminous with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved. The reason is that R.7A speaks of duration of vacancy and not duration of appointment. So, we are of the view that if appointments are made to vacancies, having duration of one academic year or more, they are liable to be approved. 9. In this Writ Petition and connected Writ Petitions, we notice that the vacancies available arose as a result of retirement or long term leave, which extended to more than W.P.(C).No.34200 OF 2010 5 one academic year. Therefore, the delay, if any, in making the appointments in these cases, is not of any consequence. if the duration of the vacancy is only one academic year and there is considerable delay in making the appointment,in such cases, what should be done is kept open. In the cases before us, there is no such contingency. In the present Writ Petition, though the vacancy arose in June, the appointment was made in October. The vacancy has got a duration of five years and therefore, the delay is negligible. So, there is no reason for not approving it in the time scale of pay, from the date of appointment.” 4. In the light of the decision in Unni Narayanan's case, Exts.P2. P2A, P3, P3A, P4 and P4A orders are liable to be quashed. It is not necessary to consider and dispose of Exts.P5 and P5A revisions, in view of the authoritative pronouncement on the interpretation of the provisions of the Kerala Education Act and Rules and also with regard to G.O. (P) No.104/08/G.Edn. dated 10.6.2008. Accordingly, the Writ Petition is allowed. Exts.P2, P2A, P3, P3A, P4 and P4A orders passed by the District Educational Officer, Deputy Director of Education and Director of Public Instruction W.P.(C).No.34200 OF 2010 6 respectively are quashed. The District Educational Officer shall consider the proposals for approval of appointment of the petitioners afresh, in the light of the principles laid down in Unni Narayanan's case. The District Educational Officer shall pass appropriate orders within one month from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the District Educational Officer. K.T.SANKARAN, JUDGE. cms