IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 35451 of 2008(U) --------------------------------------- PETITIONER: ------------------- ANU. A, W/O. SAJU PETERS, AGED 38 YEARS, HSST JR (COMMERCE) ST. ALOYSIUS, HIGHER SECONDARY SCHOOL, KOOLLAM, PERMANENTLY RESIDING AT RANI DALE, SAKTHKULANGARA, KOLLAM -3. BY ADV. SMT.REKHA VASUDEVAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER SECONDARY EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM. 4. THE CORPORATE MANAGER, CATHOLIC SCHOOLS, BISHIP HOUSE, TANGASSERI , KOLLAM -691 007. 5. SMT. ANITHA GREGORY, ASHIYANA, NEENDAKARA P.O., KOLLAM DISTRICT. R1 TO R3 BY SR.GOVT. PLEADER SMT. T.B.REMANI, R4 BY ADVS. MR.JOHN JOSEPH VETTIKAD, MR.C.JOSEPH JOHNY, R5 BY ADV.MR.S.RADHAKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, ALONG WITH W.P.(C). NO. 8962 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.35451/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER NO. 1645/2008/EDN., DTD. 04/08/2008 ISSUED BY THE R.4. EXT.P.2: COPY OF THE LETTER NO. 1386/EDN./2007 DTD. 27/11/2008 ADDRESSED TO THE R.4. BY THE R.5. EXT.P.3: COPY OF THE JUDGMENT DTD. 30/06/2008 IN W.P.(C).26709/2008 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE ORDER NO.ACD.B3/117/HSE/07 DTD. 14/10/2008 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE LETTER ISSUED BY THE R.4. DTD. 12/07/2001. EXT.R5.B: COPY OF THE APPOINTMENT ORDER NO. 8227/2001/EDN. DTD. 16/11/2001. EXT.R5.C: COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL, ST. ALOYSIUS HSS, KOLLAM DTD. 29/04/2002. EXT.R5.D: COPY OF THE LETTER DTD. 02/06/2003 SUBMITTED BY THE R.5. EXT.R5.E: COPY OF THE APPEAL SUBMITTED BY THE R.4. BEFORE THE SECRETARY TO THE GOVT. EXT.R5.F: COPY OF THE PROVISIONAL CERTIFICATE DTD. 10/09/2004. EXT.R5.G: COPY OF THE REPRESENTATION DTD. 15/09/2004 SUBMITTED BY THE R.5. EXT.R5.H: COPY OF THE ORDER PASSED BY THE LEARNED DISTRICT JUDGE, KOLLAM IN I.A. NO. 1398/2003 IN F.A.O. NO. 106 OF 2003 DTD. 24/11/2003. EXT.R5.I: COPY OF THE JUDGMENT PASSED BY THE LEARNED DISTRICT JUDGE, KOLLAM IN FAO.NO.106/2003 DTD. 23/12/2005. EXT.R5.J: COPY OF THE REVIEW PETITION SUBMITTED BY THIS RESPONDENT BEFORE THE DIRECTOR DTD. 24/05/2007. EXT.R5.K: COPY OF THE PETITION FOR STAY FILED BY THIS RESPONDENT BEFORE THE DIRECTOR DTD. 10/07/2008 AS DIRECTED BY THIS HONOURABLE COURT. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) Nos.35451 OF 2008 & 8962 OF 2009 --------------------------------------- Dated this the 4th day of August, 2009. J U D G M E N T The petitioners in these writ petitions were appointed by the Management as H.S.S.T (Junior) Commerce. The petitioner in W.P.(C)No.8962/2009 was appointed in the first instance. Therefore, reference will be made about the facts relevant for deciding these two cases from the pleadings in this writ petition. 2. The petitioner in W.P.(C) No.8962/2009 had undergone a selection process for appointment as H.S.S.T Commerce and she was selected on 04.07.2001. By Exhibit P1, the Manager directed the Principal to admit her to duty. Exhibit P2 is the order of appointment. The petitioner was having qualification of Post Graduation along with B.Ed and SET. But her B.Ed was obtained after undergoing correspondence course. 3. The Manager forwarded the appointment order and other papers for approval. Later the petitioner approached this Court by filing O.P.No.37428/2002 seeking for a direction to the W.P.(C) Nos. 35451/08 & 8962/09 2 2nd respondent to pass orders on the application for approval. Finally, by order dated 20.02.2003, the approval was declined stating that the petitioner acquired the B.Ed Degree through correspondence course. The matter was taken up in appeal by the Manager before the Government as per Exhibit P5. Meanwhile, the petitioner joined regular course of study in B.Ed and acquired the Degree. Exhibit P6 is the copy of the provisional certificate. Thereafter, the petitioner submitted a representation as per Exhibit P7 seeking to approve her appointment. 4. It appears that the parties had been before the Civil Court also which is evident from Exhibits P8 and P9 orders. The District Court ultimately directed the parties to pursue the statutory remedy already availed of. The petitioner thereafter filed W.P.(C)No.27040/2006 for a direction to the Government to dispose of the appeal filed by the Manager and accordingly, the appeal was disposed of, but without hearing the Manager. An order was passed on 07.03.2007 directing the Manager to reappoint the petitioner as per Rules. The petitioner thereafter W.P.(C) Nos. 35451/08 & 8962/09 3 filed Exhibit P10 review petition seeking for approval with effect from the date of appointment itself. 5. The Manager filed W.P.(C) No.26709/2007 challenging the order passed in appeal mainly on the ground that it was passed without hearing him. The petitioner also filed W.P.(C) No.23667/2007 seeking to implement the order. Both these writ petitions were disposed of by Exhibit P11 judgment directing the 2nd respondent herein to take a fresh decision. This Court directed the Director of Higher Secondary Education to pass fresh orders, after setting aside the order dated 07.03.2007. Accordingly, Exhibit P12 order has been passed. Going by Exhibit P12, the Director of Higher Secondary Education directed the Manager to appoint the petitioner as H.S.S.T (Commerce). By Exhibit P13, the petitioner requested the Manager to appoint her and to seek approval from the original date of appointment. 6. It appears that during the period the said dispute was pending before the statutory authorities, the Manager had appointed one A.Georgekutty as well as the petitioner in W.P(C)No.35451/2008 in the vacancies which arose subsequently W.P.(C) Nos. 35451/08 & 8962/09 4 including the leave vacancy of the petitioner in W.P.(C) No.8962/2009. In the light of Exhibit P12, the Manager as per Exhibit P15 sought for permission to withdraw the proposal for approval of appointment in favour of the petitioner in W.P(C) No.35451/2008 to accommodate the petitioner herein. 7. In W.P(C) No.35451/2008, the petitioner was appointed by the Management after a due process of selection as per Exhibit P1 order dated 04.08.2008 as H.S.S.T (Junior) Commerce in the promotion vacancy of Georgekutty. The challenge is against Exhibit P2 (Exhibit P15 in W.P.(C) No.8962/2009) whereby the Manager sought permission to withdraw the proposal for approval. The petitioner is also challenging Exhibit P4 order passed by the Director of Higher Secondary Education by which the 5th respondent (petitioner in other writ petition) was ordered to be appointed. 8. Heard the learned counsel for the petitioners, learned Government Pleader and the learned counsel appearing for the Manager. 9. In the counter affidavit filed by the Manager in W.P.(C) Nos. 35451/08 & 8962/09 5 W.P.(C) No.35451/2008, it is pointed out that one Lucy Cletus who was appointed as H.S.S.T (Junior) Commerce has been relieved from her duties with effect from 05.01.2009 on getting appointment in a nationalized bank. Therefore, another vacancy has arisen in the post of H.S.S.T (Junior) Commerce. It is submitted that hence there is no question of terminating the service of the petitioner in W.P.(C) No.35451/2008. Therefore, the Manager has sought for permission to withdraw Exhibit P2 produced in the said writ petition. 10. It is a case where both petitioners were appointed after due process of selection by the Manager in two different vacancies. The approval of appointment of the petitioner in W.P.(C)No.8962/2009 was pending consideration in the appeal filed by the Manager after the Director of Higher Secondary Education had rejected the proposal. Ultimately, in Exhibit P11 judgment, this Court directed the Director of Higher Secondary Education to pass fresh orders in the matter. 11. When the petitioner therein was appointed, she was having the B.Ed qualification acquired through the W.P.(C) Nos. 35451/08 & 8962/09 6 correspondence course. Of course, she had availed of the opportunities to acquire the qualification in the light of the relaxation that was allowable to the teachers who were not having B.Ed in terms of Note 1 to Rule 6(2) of Chapter XXXII of Kerala Education Rules. Note 2 to Rule 6(27) also provides so. Therefore, she has acquired the qualification within the period of five years. In Exhibit P12 it is found that she is entitled for this benefit. Accordingly it is held that “On rejection of the proposal stating that her B.Ed was not an approved one, the Manager ought to have re-submit the case with the request for the relaxation of qualifications as per the provisions of KER. The Manager, on the other hand, made a fresh appointment concealing the facts of pending appeal”. 12. The question is whether the petitioner in W.P.(C) No.8962/2009 was entitled for approval with effect from the original date of appointment. Presently, the Director of Higher Secondary Education has ordered by Exhibit P12 to appoint the petitioner. Therefore, in compliance of Exhibit P12, the Manager will have to appoint her. Hence the Manager is W.P.(C) Nos. 35451/08 & 8962/09 7 directed to appoint the petitioner in W.P.(C) No.8962/2009 within a period of one month from today. The petitioner in W.P.(C)No.35451/2008 was appointed in a later vacancy. Therefore, the question of approval with regard to the respective appointments of the parties will have to be adjudicated by the Director of Higher Secondary Education itself in the light of Exhibit P12. 13. Learned counsel for the petitioner in W.P.(C) No.8962/2009 fairly submitted that the petitioner will not claim any arrears of salary. Therefore, the Manager will produce the orders of appointment in respect of both the petitioners before the 2nd respondent-Director of Higher Secondary Education for approval. Appropriate orders regarding approval of appointment will be issued by the 2nd respondent, after hearing the parties, within a further period of two months. W.P.(C) No.8962/2009 is allowed as above. 14. As regards W.P(C) No.35451/2008, the main challenge is against Exhibit P2 by which the Manager proposed to withdraw the proposal for approval. The Manager is granted permission to W.P.(C) Nos. 35451/08 & 8962/09 8 withdraw Exhibit P2 communication as requested for in the counter affidavit. Now that there is a fresh vacancy as evident from the counter affidavit filed by the Manager, the Manager will be permitted to submit the revised proposal in terms of the directions issued as above, and to enable the Manager to submit fresh proposal, the 2nd respondent will allow the Manager to get the appointment papers returned. The Manager will resubmit the proposal with regard to the petitioner in W.P.(C) No.35451/2008 in terms of the directions already issued above. Therefore, W.P.(C) No.35451/2008 is disposed of in terms of the above directions. As per the interim order dated 07.04.2009 passed in W.P.(C) No.8962/2009, this Court had directed the 4th respondent not to fill up the vacancy of H.S.S.T (Commerce). It was made clear that it will be open to the management to notify the vacancies, invite applications and receive the same and selection process should commence only after further orders of this Court. In the light of the fact that the petitioners in these writ petitions have to be appointed, the notification will not survive. Since the petitioner in W.P.(C) Nos. 35451/08 & 8962/09 9 W.P.(C) No.8962/2009 is not claiming arrears of salary, naturally the petitioner in W.P.(C) No.35451/2008 will be entitled to claim the same depending upon the orders of approval. T.R. RAMACHANDRAN NAIR JUDGE smp