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2021 DIGILAW 291 (KER)

Vivek Nair v. State of Kerala

2021-03-16

DEVAN RAMACHANDRAN

body2021
JUDGMENT : 1. The petitioners in all these cases - which are being heard together and disposed of through this judgment on account of similarity of the factual circumstances and reliefs urged and sought for – are working in non-teaching posts in various Higher Secondary Schools in the State of Kerala. 2. According to the petitioners, even though the posts to which they were appointed had been sanctioned by the Kerala Education Rules (KER) through Chapter XXXII thereof, Government had been refusing to grant them approval citing the reason that they have not created such posts. They say that these arguments were considered by a learned Judge of this Court in W.P.(C) No.22790/2014 and connected matters, leading to a judgment being delivered on 30.11.2017, directing the Government to sanction non-teaching posts as recommended by the Director of General Education and to pass appropriate orders within three months therefrom. 3. The petitioners say that in spite of this, Government did not comply with the afore directions but choose to file W.A.No.745/2018 and connected appeals, which were disposed of, through a judgment dated 15.01.2020, in the following manner: “When the matter came up for hearing today, the learned Government Pleader sought two months time to implement the direction. We are of the view that since the time had already lapsed, it would only be appropriate to grant further two months time to implement the directions issued by the learned Single Judge. However, if the Orders are not implemented, we make it clear that we will be forced to take contempt proceedings against the concerned Officers who failed to comply with the directions issued by this Court. Accordingly, two months time is granted to the Government and its Officers to comply with the directions issued.” 4. They say that this judgment was thereafter challenged by the Government through a Special Leave Petition before the Hon’ble Supreme Court, but that same was also dismissed by an order dated 29.01.2021. 5. The petitioners thus contend that Government is now obligated to issue orders creating the posts in question and that their continued intransigence to do so can only be construed as an affront to the authority of this Court and that of the Hon’ble Supreme Court. 5. The petitioners thus contend that Government is now obligated to issue orders creating the posts in question and that their continued intransigence to do so can only be construed as an affront to the authority of this Court and that of the Hon’ble Supreme Court. The petitioners, therefore, pray that the impugned orders in these cases be set aside and the competent Authority of the Government be directed to create and sanction the posts in question and to grant approval to their appointments from the dates of their initial engagement. 6. In response to the submissions made on behalf of the petitioners by their counsel as afore, the learned Senior Government Pleader – Sri.P.M.Manoj, submitted that though the judgment in W.A.No.745/2018 was confirmed by the Hon’ble Supreme Court, the situation has now changed on account of merger of the High School and Higher Secondary sections into one Directorate. He submitted that, therefore, the Director of General Education will now have to make fresh proposals to the Government for sanctioning of the posts taking into account the students strength of the two Sections and thus prayed that Government be granted further time to comply with the directions of this Court, confirmed by the Hon’ble Supreme Court. Sri.P.M.Manoj added to his above submissions by saying that, on account of the coming into force of the Model Code of Conduct consequent to the declaration of the ensuing election, Government is not in a position to take any further action in this regard as of now. He, therefore, prayed that this Writ Petition be dismissed and that Government be allowed time to consider and evaluate all the relevant aspects, including the students strength of the High School and Higher Secondary sections and then take a final decision as per law. 7. I am afraid that I cannot find favour with the afore submissions of Sri.P.M.Manoj for the singular reason that all these aspects have already been noticed by this Court, while the judgment in W.A.No.745/2018 and connected cases had been delivered. The said judgment is dated 15.01.2020, when the merger of the two Departments had already taken place; and in any event, the Hon’ble Supreme Court dismissed the SLP against this judgment only on 29.01.2021. The said judgment is dated 15.01.2020, when the merger of the two Departments had already taken place; and in any event, the Hon’ble Supreme Court dismissed the SLP against this judgment only on 29.01.2021. Since the Hon’ble Supreme Court did not countenance any of such contentions – even if it had been raised before it – it is obvious that the directions in the judgment in W.A.No.745/2018 will have to be now complied with scrupulously by the Government. This is more so because, the learned Bench had made it clear in the said judgment that if the Government does not do so, they will be forced to take contempt action against the concerned officials. 8. It is, therefore, indubitable that, as matters now stand, Government is obligated to create the posts which had already been legally sanctioned by the provisions of the Statute itself and which were subsequently proposed and recommended by the Director of Higher Secondary Education. The directions of this Court in the judgment in W.A.No.745/2018 make it very clear that two months had been granted to the Government to do so and these directions have been upheld by the Hon’ble Supreme Court in its order dated 29.01.2021 in the Special Leave Petitions. 9. Obviously, therefore, Government cannot ask any further time solely on the ground that Model Code of Conduct has come into force or that merger of the two departments would require further evaluation. In the afore circumstances, I allow these Writ Petitions, quashing the impugned orders therein; with a consequential direction to the competent Authority of the Government to immediately issue orders granting the posts which are now being claimed by the petitioners in these cases in various Higher Secondary Schools. This shall be done by the Government as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment and on such orders being issued, the competent educational Authorities will consider the proposals for grant of approval to the appointments of the petitioners to such posts within a period of one month thereafter. It is made clear that the afore directions are peremptory in nature and that, if they are not complied with within the time frame granted, the concerned officials will be fully accountable and responsible.