Boby Christopher vs State of Kerala

A.K. Jayasankaran Nambiar, J.—The petitioner is working as HSST Junior (Chemistry) at the 4th respondent School. She was originally appointed by direct recruitment with effect from 9.7.2001. Ext. P1 is the appointment order issued to her. On the strength of Ext. P1 order, she joined the School as evidenced by Ext. P1(a) joining report. The approval to the said appointment of the petitioner was not, however, granted by the respondents on account of the fact that there was a ban on appointments consequent to litigation that was pending in court, with regard to the necessity of teachers possessing SET qualification and other related issues. The ban was subsequently lifted only with effect from 12.2.2001. Since the petitioner had been appointed only with effect from 9.7.2001, and by that time the ban on appointments had already been lifted, she approached the respondents through representations for getting her appointment approved. In the meanwhile, by virtue of a Division Bench judgment of this Court, it was clarified that appointments made between 13.2.2001 and 12.11.2001 could also be approved by the Government, and in accordance with the said clarification issued by the Division Bench of this Court, the Government proceeded to issue Ext. P9 compliance order dated 24.7.2003, directing the Director of Higher Education to approve the appointment made during the said period. In the case of the petitioner however, even before Ext. P9 Government order was issued, and on account of the ambiguity that prevailed, the 4th respondent issued a fresh appointment order, appointing the petitioner with effect from 3.2.2003. Ext. P10 is the fresh appointment order that was issued to the petitioner. The said appointment was approved by Ext. P11 order dated 6.2.2004 with effect from 30.6.2003. The petitioner was, however, aggrieved by the non-approval of her appointment for the period from 9.7.2001 to 30.6.2003 and therefore took up the matter yet again with the Government. It is relevant to note that in the meanwhile, by Ext. P12 order dated 7.5.2007, the Government modified Ext. P9 order dated 24.7.2003, by clarifying that in the case of those teachers who had obtained SET qualification subsequently, but who were appointed during the ban period between 14.2.2001 and 12.11.2001, their appointments could be approved with effect from the date of their appointment. It was further clarified in the said order that the arrears of salary in respect of the said teachers would be merged in the P.F. account and the amount so merged would be allowed to be drawn only after 30.11.2011. In the light of the clarifications obtained through Ext. P12 order, the petitioner again approached the respondents with a claim for approving her appointment as HSST Junior (Chemistry) in the 4th respondent School with effect from 9.7.2001. By Ext. P15 order dated 6.12.2007, the 2nd respondent rejected the claim of the petitioner. On a further representation made before the 1st respondent, Ext. P18 order dated 23.3.2012 was passed rejecting the claim of the petitioner. Ext. P18 order of the Government is impugned in the writ petition, where there is also a prayer for a declaration that the petitioner is entitled for approval and salary with effect from the date of her appointment, namely, 9.7.2001.

A counter affidavit has been filed by the 4th respondent Manager where the stand taken is in support of the petitioner.

I have heard Sri Paulson Thomas, the learned counsel appearing on behalf of the petitioner, Smt. Sunitha Vinod, the learned Government Pleader appearing on behalf of respondents 1 to 3 as also Sri John Joseph Vettikad, the learned counsel appearing on behalf of the 4th respondent.

On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that the sole reason for not approving the appointment of the petitioner with effect from 9.7.2001 was the fact that she was subsequently reappointed by Ext. P10 order dated 3.2.2003 which appointment was approved only with effect from 30.6.2003. The reasons that were cited for not approving the petitioner''s appointment with effect from 9.7.2001, when she was first appointed to the 4th respondent School, was that there was an ambiguity with regard to the date from which persons like the petitioner, who had obtained SET qualification only on a later date than from the date of their appointments, could be approved. In the case of the petitioner, this ambiguity stood resolved through the issuance of Exts. P9 and P12 orders wherein it was clarified that, in the case of teachers who were appointed between 13.2.2001 and 12.11.2001, in circumstances where the teacher concerned did not possess the SET qualification on the date of the appointment but had subsequently acquired it, thereby complying with the eligibility requirements as laid down in the KER, their appointments could be approved with effect from the dates of their appointment. With the issuance of Exts. P9 and P12 Government orders, therefore, the respondents should have automatically approved the appointment of the petitioner with effect from 9.7.2001. The mere fact that the petitioner was, during the period when there was an ambiguity that prevailed with regard to approval to appointments effected, reappointed by the 4th respondent Manager, could not in any way affect the legality of her first appointment to the School by Ext. P1 order. In fact, the petitioner would rely on Ext. P19 judgment of this Court where, in similar circumstances, the earlier appointment of a teacher was directed to be approved with effect from the date of such appointment notwithstanding the fact that she had been subsequently appointed by a fresh order of appointment. Thus, in view of the clarifications given by the Government in Exts. P9 and P12 orders and the view taken in Ext. P19 judgment of this Court, I am of the view that Exts. P15 and P18 orders, of the 2nd and 1st respondents respectively, cannot be legally sustained. Resultantly, I quash Exts. P15 and P18 orders and direct that the 2nd respondent shall forthwith approve the appointment of the petitioner as HSST Junior (Chemistry) in the 4th respondent School with effect from 9.7.2001, the date of her initial appointment by Ext. P1 order. As regards the arrears of salary and other allowances due to her for the said period, the 2nd respondent shall proceed in accordance with the instructions in Ext. P12 Government order. It is made clear that the 2nd respondent shall not delay the approval of the appointment of the petitioner with effect from 9.7.2001, beyond a period of two months from the date of receipt of a copy of this judgment.

The writ petition is disposed as above.