P.C. Ahammedkutty vs State of Kerala

A.K. Jayasankaran Nambiar, J.—The writ petition has been preferred by the Manager of Neerolpalam A.M.L.P. School as the 1st petitioner and a teacher, who was appointed as Lower Primary School Assistant (LPSA) in the said School on 23.7.2008, as the 2nd petitioner. The grievance of the writ petitioners is essentially against the refusal by the respondents of grant of approval to the appointment of the 2nd petitioner as an LPSA in the said School with effect from 23.7.2008. The averments in the writ petition disclose that against a vacancy arising from the posting of an earlier incumbent Smt.Nasheeda Fathima to a regular post pursuant to the promotion of an another LPSA as Head Master, the 2nd petitioner was appointed as LPSA against the anticipated additional post in the School from 2006-07 academic year onwards. When the appointment of the 2nd petitioner was sent for approval before the 5th respondent, the same was rejected by Ext.P2 order on the ground that since there was no additional post sanctioned in the School, there was no vacancy in existence to which the 2nd petitioner could be accommodated. In an appeal preferred against Ext.P2 order, the 4th respondent rejected the request for approval vide Ext.P3 order on the ground that there was no provision to sanction an additional post in view of the ban imposed by the Government. On a further appeal preferred by the 1st petitioner against Ext.P3 order, the 2nd respondent remitted the matter to the 5th respondent for a fresh consideration of the matter based on Exts.P10 and P11 Government orders. It is pointed out that no action was taken by the 5th respondent pursuant to the said direction by the 2nd respondent.

In the staff fixation orders for the period from 2007-08 to 2009-10, it was found that there were sufficient divisions in the School to sanction one additional post of LPSA. This is evident from Exts.P6, P7 and P8 staff fixation orders. In the year 2010-11 however, there was a division fall and consequently one post of LPSA was reduced from the staff strength in the said School. Ext.P9 staff fixation order for 2010-11 would reveal this. Ext.P13 order dated 14.10.2010 is relied upon by the petitioners to indicate that an order was passed in the case of Smt.Nasheeda Fathima approving her appointment to the additional post with effect from 28.7.2006.

It was in the light of these facts that the petitioners had raised a claim for approval of the appointment since the appointment, according to them, was made to a vacancy that was in existence in the School. When no action was taken by the 5th respondent pursuant to the direction of the 2nd respondent, the petitioners appear to have preferred a representation before the Chief Minister which led to the passing of Ext.P15 order dated 16.11.2011 by the 3rd respondent. In the said order, a reference is made to the sanctioning of additional vacancies from 2006-07 onwards and it is indicated that no approval was granted to the appointment of the 2nd petitioner only because the 1st petitioner Manager had not submitted a bond in terms of Ext.P10 Government Order. It was also pointed out therein that pursuant to the division fall with effect from 15.7.2010, no post existed in the School to which the 2nd petitioner could be accommodated. The very same reason of non-furnishing of a bond by the 1st petitioner Manager was also cited as the reason for refusal to include the 2nd petitioner in the teachers package contemplated in terms of Ext.P16 Government Order. It was challenging Ext.P15 order that the writ petition was filed praying for a direction to the respondents to approve the appointment of the 2nd petitioner as LPSA in the School.

Although the writ petition was filed in 2012, no counter affidavit is seen filed on behalf of the respondents. It is seen, however, that when the matter came up before this Court on 25.2.2014, by way of an interim order in I.A.No.965/2014, the 5th respondent was directed to consider the question of approval of appointment of the 2nd petitioner on the basis of the bond which was by then executed by the 1st petitioner Manager. In response to the said interim order, the 5th respondent vide Ext.P19 order dated 24.3.2014 has once again refused approval to the appointment of the 2nd petitioner in the said School. Ext.P19 discloses that the reasons for the refusal are twofold namely, (a) that in the staff fixation for the year 2010-11, there was fall in division and consequently with effect from 15.7.2010 there was no sanctioned post to which the 2nd petitioner could be accommodated and (b) that as regards the period prior to that, insofar as the Manager had not submitted a bond in terms of GO(P)199/2011 dated 1.10.2011, the appointment of the 2nd petitioner with effect from 23.7.2008 onwards also could not be approved. It is also stated that the 2nd petitioner cannot be included in the teachers package. The request for approval of the 2nd petitioner''s appointment was therefore rejected in toto.

On receipt of Ext.P19 order, the petitioners have amended the writ petition so as to incorporate a challenge to the said order as well and it is in these circumstances that I am called upon to consider the issue now.

On going through the impugned order and on a consideration of the submissions made by counsel on either side, it appears that insofar as the appointment of the 2nd petitioner as an LPSA from 23.7.2008 onwards was to a vacancy in an additional post that was sanctioned in the School, the appointment itself cannot be said to be irregular for the purposes of the Kerala Education Rules. That apart, Ext.P15 order dated 16.11.2011 clearly indicates that the only reason for the refusal of the approval for the period from 23.7.2008 to 15.7.2010 was the non-furnishing of a bond by the 1st petitioner Manager in terms of Ext.P10 Government Order. The refusal of approval for the period subsequent to 15.7.2010 was on account of the division fall that was noticed during the staff fixation for the academic year 2010-11 and consequently for the want of a post of LPSA in the School for that period. The petitioners do not have a case that approval should be granted for the period after 15.7.2010. Their limited prayer at this stage is only for a direction to the respondents to approve the appointment of the petitioner as LPSA in the School for the period from 23.7.2008 to 15.7.2010 and for a direction to the respondents to include the 2nd petitioner in the teachers package immediately after 15.7.2010. As already noticed, the only reason cited in Ext.P15, which is reiterated in Ext.P19 order of the 5th respondent, is that the 1st petitioner Manager had not executed a bond in terms of Ext.P10 Government Order. While that reason is relevant for the purposes of Ext.P15 order, there is no reason forthcoming as to why the same reason should hold good even after the 1st petitioner Manager executed a bond before the authorities and thereafter obtained an interim order from this Court directing the authorities to consider the grant of approval to the appointment of the 2nd petitioner based on the said bond executed by the Manager. I would think that the subsequent execution of the bond by the 1st petitioner Manager cured the technical irregularity in the matter of grant of approval to the appointment of the 2nd petitioner as LPSA in the School for the period prior to 15.7.2010. That apart the mere non-furnishing of a bond by the 1st petitioner Manager can in no way undermine the rights available to the 2nd petitioner in regard to the approval of her appointment to a vacancy that existed in the School during the period from 23.7.2008 to 15.7.2010. The non-compliance by the 1st petitioner Manager of a procedural formality cannot deprive the 2nd petitioner teacher of her rights under the Statute more so when the formality in question does not in any way impinge upon the rights of the petitioners for approval of appointment in terms of the KER. In this view of the matter, I quash Ext.P19 order of the 5th respondent and direct the 5th respondent to approve the appointment of the 2nd petitioner as an LPSA in the School for the period from 23.7.2008 to 15.7.2010. Consequent to the approval of the appointment of the 2nd petitioner for the above period, the salary and other entitlements due to the 2nd petitioner shall be promptly disbursed to her, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The approval of the appointment of the 2nd petitioner for the period subsequent to 15.7.2010 shall be in accordance with the provisions of the KER as also various Government Orders issued in that regard from time to time. Pending a decision for that period however, the 5th respondent shall include the 2nd petitioner in the teachers package by treating her as an LPSA who has been retrenched pursuant to a division fall that was noticed in the staff fixation for the academic year 2010-11.

With these directions the writ petition is disposed.