{"id":222475,"date":"2009-07-13T00:00:00","date_gmt":"2009-07-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mother-boniface-mary-vs-secretary-to-government-on-13-july-2009"},"modified":"2015-04-21T05:25:29","modified_gmt":"2015-04-20T23:55:29","slug":"mother-boniface-mary-vs-secretary-to-government-on-13-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mother-boniface-mary-vs-secretary-to-government-on-13-july-2009","title":{"rendered":"Mother Boniface Mary vs Secretary To Government on 13 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mother Boniface Mary vs Secretary To Government on 13 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 12606 of 2007(A)\n\n\n1. MOTHER BONIFACE MARY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SECRETARY TO GOVERNMENT,\n                       ...       Respondent\n\n2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,\n\n3. THE DISTRICT EDUCATIONAL OFFICER,\n\n4. J.G.VALSALAKUMARI, CRAFT (AGRICULTURE),\n\n5. SMT. DHEEMA RANI,\n\n                For Petitioner  :SRI.S.GOPAKUMARAN NAIR (SR.)\n\n                For Respondent  :SRI.P.N.MOHANAN\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :13\/07\/2009\n\n O R D E R\n                              S. Siri Jagan, J.\n           =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=\n            W. P (C) Nos. 12606, 12895 & 35105 of 2007\n           =-=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=\n                   Dated this, the 13th July, 2009.\n\n                             J U D G M E N T\n<\/pre>\n
      These three writ petitions are directed against the same<\/p>\n
Government Order, but challenging different directions in that order.<\/p>\n
Therefore, they are heard and disposed of by this common judgment.<\/p>\n
For convenience,     I shall refer to the rank of parties and exhibits as<\/p>\n
obtaining in W.P(C) No. 35105\/2007.\n<\/p>\n
      2. W.P(C) No. 35105\/2007 is filed by a craft teacher named<\/p>\n
Smt. Valsalakumari J.G        appointed by the 3rd respondent to a<\/p>\n
retirement vacancy which arose on 31-3-1985.        Smt. Valsalakumari<\/p>\n
was appointed to that vacancy on 14-8-1985. But that appointment<\/p>\n
was refused to be approved on the ground that on the retirement of<\/p>\n
the erstwhile incumbent, the post itself stands abolished by virtue of<\/p>\n
Rule 6B of Chapter XXIII of the Kerala Education Rules.<\/p>\n
Subsequently, the management cancelled the appointment of Smt.<\/p>\n
Valsalakumari.    Smt. Valsalakumari J.G approached this Court by<\/p>\n
filing O.P. No. 11838\/1996 in which there was an order of stay of<\/p>\n
termination of service of        Smt. Valsalakumari.      While so, the<\/p>\n
management changed in 1996. As per the staff fixation order for the<\/p>\n
year 2004-05, a vacancy of a sewing teacher was sanctioned along<\/p>\n
with that of a craft teacher. The petitioner in W.P(C) No. 12895\/2007<\/p>\n
Smt. Dheema Rani was appointed to the post of sewing teacher<\/p>\n
sanctioned in 2004.       Her appointment was also not approved,<\/p>\n
probably due to the situation prevailing on account of non-approval of<\/p>\n
the appointment of Smt. Valsalakumari. By Ext. P4 judgment dated<\/p>\n
23-8-2005, O.P. No. 11838\/1996 filed by Smt. Valsalakumari was<\/p>\n
allowed and the Government was directed to re-consider the matter.<\/p>\n
Pursuant thereto, the Government re-considered the matter and<\/p>\n
passed an order directing approval of the appointment of            Smt.<\/p>\n
Valsalakumari J.G with effect from 1-11-2004, by converting the post<\/p>\n
W.P.C. No. 12606\/07 etc.         -: 2 :-<\/span><\/p>\n
of sewing teacher held by Smt. Dheema Rani and directing payment of<\/p>\n
salary for the period from 14-8-1985 to 1-11-2004 to               Smt.<\/p>\n
Valsalakumari J.G, which was directed to be recovered from          the<\/p>\n
Manager invoking Section 8 of the Kerala Education Act, 1958. The<\/p>\n
Manager and Smt. Dheema Rani challenged the same in W.P(C) Nos.<\/p>\n
24521\/2006 and 25421\/2007 in which that order was quashed by<\/p>\n
judgment dated 27-11-2006 and the Government was directed to re-<\/p>\n
consider the matter after hearing Smt. Smt. Valsalakumari J.G, Smt.<\/p>\n
Dheema Rani and the Manager. It is pursuant to that judgment, Ext.<\/p>\n
P13 order has been passed by the Government, but the same was in<\/p>\n
terms of the earlier order itself. W.P(C) No. 35105\/2007 is filed by<\/p>\n
Smt. Valsalakumari J.G against that part of Ext. P13 order, by which<\/p>\n
she has been denied approval of appointment with effect from 14-8-<\/p>\n
1985.    W.P(C) No. 12895\/2007 is filed by Smt. Dheema Rani<\/p>\n
challenging that part of the order,      whereby the post of sewing<\/p>\n
teacher is directed to be converted to that of a craft teacher. W.P(C)<\/p>\n
No. 12606\/2007 is filed by the management challenging that part of<\/p>\n
the order whereby the salary to be paid to Smt. Valsalakumari J.G for<\/p>\n
the period from 14-8-1985 to 1-11-2004 has been directed to be<\/p>\n
recovered from the Manager         invoking Section 8 of the Kerala<\/p>\n
Education Act, 1958.\n<\/p>\n
      3. If W.P(C) No. 35105\/2007 filed by Smt. Valsalakumari J.G is<\/p>\n
allowed and her appointment is directed to be approved from 14-8-<\/p>\n
1985, then automatically the other two writ petitions also have to be<\/p>\n
allowed. Therefore, I shall consider W.P(C) No. 35105\/2007 first.<\/p>\n
      4. The question as to whether by virtue of Rule 6B of Chapter<\/p>\n
XXIII of K.E.R., the post of specialist teacher or craft teacher stands<\/p>\n
abolished on the retirement of the incumbent after 1969-70 has been<\/p>\n
a vexing question which was the subject matter of various decisions of<\/p>\n
W.P.C. No. 12606\/07 etc.          -: 3 :-<\/span><\/p>\n
the Government and this Court . Ultimately, that issue was settled by<\/p>\n
the decision of a Full Bench of this Court in Harikumar v. State of<\/p>\n
Kerala,<\/a> 2003(1) KLT 797 (F.B), holding that on the retirement of the<\/p>\n
incumbent of the post, the post would stand abolished. Strictly going<\/p>\n
by that judgment, Smt. Valsalakumari J.G may not be entitled to<\/p>\n
succeed in her writ petition. But, the question is not that simple.<\/p>\n
At the relevant time, when Smt. Valsalakumari J.G was appointed and<\/p>\n
subsequently, this question was considered by the Government in<\/p>\n
various orders. By Ext. P5 order dated 24-9-1969, the Government<\/p>\n
held that the posts of specialist craft teachers sanctioned before 1969-<\/p>\n
1990 will be continued even if the incumbent retired or left the post<\/p>\n
for other reasons and that the post will be allowed to be filled up by<\/p>\n
qualified hands. Again by Ext. P6 order dated 8-1-1988 referring to<\/p>\n
G.O. Ms. No. 87\/79\/G. Edn. dated 2-6-1979, the Government have<\/p>\n
clarified that when the incumbent holding the post vacated the post,<\/p>\n
such post can be restored as full time or part time according to the<\/p>\n
availability of periods for the specialist subjects and that as long as<\/p>\n
thiat Government Order existed, restoration shall be continued. Still<\/p>\n
later, by Ext. P7 dated     20-7-1988, the Government informed the<\/p>\n
Director of Public Instruction that the posts of specialist teachers and<\/p>\n
craft teachers which existed during 1987-88 against which specialist<\/p>\n
teachers and craft teachers were appointed and approved will<\/p>\n
continue as such until further orders and they may be paid as usual.<\/p>\n
By Ext. P8 circular dated 17-12-1988, the Government again clarified<\/p>\n
that none of those posts will be deemed to have been abolished in<\/p>\n
subsequent years for any reason whatsoever and the post will be<\/p>\n
treated as continuous.       The substitutes appointed against the<\/p>\n
vacancies were also permitted to be paid salary continuously.       This<\/p>\n
was directed to include all appointments made against vacancies<\/p>\n
W.P.C. No. 12606\/07 etc.            -: 4 :-<\/span><\/p>\n
during the year 1988-1989 also. By Ext. P9 order dated 15-2-1992,<\/p>\n
referring to four teachers who were similarly appointed, the<\/p>\n
Government held that if the approval of those four teachers was made<\/p>\n
before the issuance of G.O.(MS) 154\/89\/G. Edn. dated 22-8-1989,<\/p>\n
they could have been paid salary and continued as per                  Ext. P8<\/p>\n
circular dated 17-12-1983 as they were in service before issuance of<\/p>\n
the Government Order dated 22-8-1989. By Ext. P10(a) dated 22-12-<\/p>\n
2000, the Government held as follows:\n<\/p>\n<\/p>\n
             “Government have examined the case w.e.f. the report from
\n      the Director of Public Instruction and found that the appointment
\n      of Sri. J. Shylock was made on 3.10.1985 during the prevalence of
\n      Government Circular No. 78932\/J1\/88\/GE dated 17.12.88 even
\n      though the circular was cancelled with the issuance of G.O.(MS)
\n      154\/89\/GE dated       22.8.1889.    Which has no retrospective
\n      operation.\n<\/p><\/blockquote>\n
             In the circumstances, Government are pleased to accord
\n      sanction for the restoration of the post of craft teacher
\n      (Agriculture) in the Victory High School, Olathanny           w.e.f.
\n      3.10.1985 onwards and to       approve the appointment of Sri. J.
\n      Shylock as craft teacher (Agriculture) against the above restored
\n      post subject to the condition that the post will cease to exist with
\n      the vacation of the post by the present incumbent through
\n      retirement, resignation, death or like reasons if it is otherwise in
\n      order.”\n<\/p><\/blockquote>\n
In Ext. P10(b) dated 5-2-2005 a similar appointment dated 19-6-1986<\/p>\n
was directed to be approved.        By Ext. P10(c) dated 23-6-1998, the<\/p>\n
appointment dated 31-10-1985 of a specialist teacher was directed to<\/p>\n
be approved by the Government. By Ext. P10(d), another appointment<\/p>\n
dated 1-8-1989 was directed to be approved. By              Ext. P10(e) dated<\/p>\n
28-1-1998, an appointment dated            4-8-1988 was directed to be<\/p>\n
approved. By Ext. P10(f) dated          19-12-2000, the post abolished in<\/p>\n
1992-93 was directed to be restored and appointment to that post was<\/p>\n
approved. By Ext. P10(g) order dated 18-4-1981, an appointment<\/p>\n
W.P.C. No. 12606\/07 etc.           -: 5 :-<\/span><\/p>\n
dated 20-7-1975 was directed to be approved. By Ext. P10 (h) dated<\/p>\n
4-5-1990,     an appointment dated 7-6-1989 was directed to be<\/p>\n
approved. In Ext. P10 (i) dated 11-11-1997, an appointment on 3-8-<\/p>\n
1983 was directed to be approved. By Ext. P10(j), appointment dated<\/p>\n
3-6-1985 was directed to be approved. By Ext. P10(k) dated 13-6-<\/p>\n
1997, a post for 1987-88 was restored and appointment approved. By<\/p>\n
Ext. P10(l) dated 28-11-1998, an appointment dated 30-10-1986 was<\/p>\n
approved. By Ext. P10(m) dated 29-7-2000 an appointment dated<\/p>\n
3-6-1985 was directed to be approved. By Ext. P10(n) dated 12-4-<\/p>\n
1991, an appointment for the year 1987-1988 was directed to be<\/p>\n
approved. By Ext. P10(o) dated 2-2-2001, an appointment dated 1-6-<\/p>\n
1993 was directed to be approved.               Therefore, despite the<\/p>\n
prescription in Rule 6B, the Government themselves              had even<\/p>\n
restored the abolished post and directed approval of appointment<\/p>\n
similar to that of      Smt. Valsalakumari J.G.    In fact, in Ext. P11<\/p>\n
judgment in O.P.No. 15817\/1996, a learned Judge of this Court noting<\/p>\n
a similar situation, finding that      similar appointments have been<\/p>\n
approved by the Government themselves in several cases, held that<\/p>\n
the petitioner in that original petition is also entitled to get the same<\/p>\n
treatment as otherwise it would be discriminatory, especially since<\/p>\n
the Rules were not very clear on the subject and the appointments<\/p>\n
were not wantonly made. I am of opinion that Smt. Valsalakumari J.G<\/p>\n
is entitled to a similar relief insofar as several other similarly placed<\/p>\n
teachers have been given the very same benefit which                 Smt.<\/p>\n
Valsalakumari J.G seeks in her writ petition.\n<\/p>\n
      5. In this connection, I note two things.          One is that in<\/p>\n
Harikumar’s case (supra), the Full Bench was considering a case of<\/p>\n
appointment of a physical education teacher on March, 31, 1995.<\/p>\n
Further, the Government themselves, by          G.O(P) No. 174\/2008\/G.<\/p>\n
W.P.C. No. 12606\/07 etc.             -: 6 :-<\/span><\/p>\n
Edn. dated 6-10-2008 amended Rule 6B to read as follows:<\/p>\n
      “6B, Notwithstanding anything contained in any other rule in this
\n      Chapter except sub-rule (2) hereunder no post of Specialist
\n      Teacher or Craft Teacher shall be allowed to continue in any
\n      Upper Primary School or Upper Primary School section of a High
\n      School except for the continuance of the qualified teachers who
\n      were actually holding the said post on the 6th day of March, 1979.\n<\/p><\/blockquote>\n
            Provided that the specialist teachers appointed in Upper
\n      Primary School or Upper Primary School section of a High School
\n      after the 6th day of March 1979 but before 22nd day of August,
\n      1989 whose appointments were approved shall be allowed to
\n      continue as such till their retirement, resignation, death or
\n      transfer and the posts of such Specialist Teachers shall be allowed
\n      to continue for their such continuance till they vacate the post.”\n<\/p><\/blockquote>\n
It is clear from the said amendment that the Rules themselves<\/p>\n
permitted appointments made between 6-3-1979 and 22-8-1989,<\/p>\n
which were approved to be continued till their retirement,<\/p>\n
resignation, death or transfer.            If such appointments illegally<\/p>\n
approved       shall be continued, I see no reason why                   Smt.<\/p>\n
Valsalakumari’s appointment should not be directed to be approved in<\/p>\n
tune with the other cases referred to above and the amended Rule 6B.<\/p>\n
      6. In view of my above findings, I am satisfied that               Smt.<\/p>\n
Valsalakumari J.G is entitled to have her appointment with effect<\/p>\n
from 14-8-1985 as a craft teacher (agriculture) approved with effect<\/p>\n
from that date. Once it is approved, the appointment made by the<\/p>\n
manager stands ratified and salary paid to Smt. Valsalakumari J.G<\/p>\n
cannot be recovered from the Manager.\n<\/p>\n
      7.   Insofar as for the year 2004-2005, as per Ext. P5 staff<\/p>\n
fixation order, both the posts of a craft teacher and a sewing teacher<\/p>\n
have been sanctioned, it is not necessary to convert the post of sewing<\/p>\n
teacher to that of craft teacher. In the above circumstances, the<\/p>\n
direction to convert the post of sewing teacher to that of craft teacher<\/p>\n
W.P.C. No. 12606\/07 etc.         -: 7 :-<\/span><\/p>\n
in the impugned order is also set aside. But, I make it clear that<\/p>\n
Smt. Valsalakumari J.G is not entitled to any additional monetary<\/p>\n
benefits arising from the approval of her appointment with effect from<\/p>\n
14-8-1985 before 1-11-2004 other than what has been already paid to<\/p>\n
her. However, her service from 14-8-1985 would be counted for all<\/p>\n
other service benefits, including retirement benefits.<\/p>\n
      The writ petitions are disposed of as above.\n<\/p>\n<\/p>\n
                                         S. Siri Jagan, Judge.\n<\/p>\n
Tds\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mother Boniface Mary vs Secretary To Government on 13 July, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 12606 of 2007(A) 1. MOTHER BONIFACE MARY, … Petitioner Vs 1. SECRETARY TO GOVERNMENT, … Respondent 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, 3. THE DISTRICT EDUCATIONAL OFFICER, 4. J.G.VALSALAKUMARI, CRAFT (AGRICULTURE), 5. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-222475","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMother Boniface Mary vs Secretary To Government on 13 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mother-boniface-mary-vs-secretary-to-government-on-13-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mother Boniface Mary vs Secretary To Government on 13 July, 2009 - 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