The petitioners as well as respondents 4 and 5 are Higher Secondary School Teachers (HSST) appointed under 3rd respondent management in the subject of Commerce, on various dates. The 4th respondent was appointed in the year 2001 as HSST (Commerce) against a newly sanctioned post approved in the Academic year 2001-2002. The 1st petitioner was appointed as HSST (Junior) in the same subject with effect from 01/09/2003, against newly sanctioned post in the year 2001-2002. He was promoted as HSST with effect from 03/10/2007 in a vacancy which arose consequent to selection of an existing HSST by the Public Service Commission for appointment in the Government Schools. The 1st petitioner continued as HSST in the 3rd respondent's school till 17/08/2009, till he got selection by Public Service Commission. The 2nd petitioner as well as 5th respondent are HSST (Juniors) appointed in the subject of Commerce in 3rd respondent's school on 20/10/2005 and 09/06/2003, respectively, against different vacancies. They were also promoted as HSST with effect from 07/09/2009 and 01/08/2007, respectively.
2. It is evident that appointment of the 4th respondent as HSST with effect from 16/11/2001 was not approved by the Government, finding that the B.Ed qualification secured by her was not through a regular course attended. The 3rd respondent Manager appealed against the decision contending that, at the time of appointment of the 4th respondent no other B Ed Degree holder was available and therefore the 4th respondent was appointed by virtue of provisions contained under Chapter XXXII KER, subject to condition of the 4th respondent acquiring B Ed qualification within a period of 5 years. Subsequently, the 4th respondent acquired B Ed Degree in the year 2004. But the 3rd respondent has not permitted her to resume duties. Therefore the 4th respondent approached this court in W.P.(C) No.27040/2006. In the judgment dated 13/10/2006 this court directed the 1st respondent to consider the appeal filed by the 3rd respondent and to dispose of the same. On that basis the 1st respondent passed an order on 07/03/2007 directing the 3rd respondent to give appointment to the 4th respondent, if any vacancy is existing. But the 3rd respondent challenged the said order of the 1st respondent in another Writ Petition filed as W.P.(C)No.26709/2007, mainly contending that the 1st respondent had passed the order without affording any opportunity of personal hearing to the 3rd respondent. The said writ petition was allowed by this court by setting aside the order passed by the 1st respondent dated 07/03/2007 and by directing the 1st respondent to pass fresh orders leaving all the questions open for the Director to decide. Ext.P7 is the judgment passed by this court in W.P.(C)No.26709/2007. Thereafter the 1st respondent issued Ext.P8 order dated 14/10/2008 directing the 3rd respondent to give appointment to the 4th respondent finding that 4th respondent ought to have got the benefit of relaxation in qualification prescribed under Chapter XXXII KER. Based on Ext.P8 order the 3rd respondent sought permission to withdraw the proposal for approval of appointment of another teacher Smt.Anu. A, who was appointed in the year 2008 against the resultant vacancy of the promotion of the 1st petitioner herein. Smt.Anu.A had approached this court at this juncture, challenging the action of the 3rd respondent, by filing W.P(C) No. 35451/2008. The 4th respondent also filed another Writ Petition, W.P(C) No. 8962/2009, seeking implementation of Ext.P8 order. Both the above writ petitions were disposed of through Ext.P9 judgment. This court directed the 3rd respondent to appoint the 4th respondent within a period of one month. Finding that Smt.Anu.A was appointed against a later vacancy, this court directed the 1st respondent to adjudicate the issue on the basis of Ext.P8. However this court recorded the submission made on behalf of the 4th respondent that she will not claim any arrears of salary. The 3rd respondent was directed to produce the proposal for appointment of both the 4th respondent and Smt.Anu.A for approval before the 1st respondent. The 1st respondent was directed to take a decision within two months. While disposing the above said cases, this court permitted the 3rd respondent to withdraw the proposal with respect to appointment of Smt.Anu.A. But noticing that there is a fresh vacancy existing, the 3rd respondent was directed to submit a revised proposal. A proposal submitted by the 3rd respondent for approval of appointment of the 4th respondent was accepted by the 2nd respondent based on the directions contained in Ext.P9 judgment, with effect from 07/09/2009, subject to further review, as per Ext.P10. Thereafter on the basis of directions contained in Ext.P9 judgment the 1st respondent had considered the matter after affording opportunity of personal hearing to the respondents 3 and 4 and as well as to Smt.Anu.A. The 3rd respondent submitted that the 4th respondent had given appointment as HSST (Junior) with effect from 07/09/2009 against the vacancy of one Smt.Luly Cletus who was relieved on 03/01/2009 to take up employment in State Bank of Travancore. But the 4th respondent contended that her appointment need to be approved with effect from 16/11/2001. Smt.Anu.A had appealed for approval of her appointment with effect from 04/08/2008. After examining the contentions of all the above said parties, the 1st respondent issued Ext.P11 order cancelling the orders of approval issued by the 2nd respondent and directing the 3rd respondent to appoint 4th respondent with effect from 16/11/2001 treating the period of break from 29/04/2002 to 01/06/2003 as Leave Without Allowance and by treating the period from 02/06/2003 to 06/09/2009 as notional service not eligible for increment and to consider the 4th respondent as continuing in regular service from 07/09/2009. The 1st respondent further ordered that the 3rd respondent should appoint the 1st petitioner with effect from 04/08/2008 subject to payment of salary from 01/09/2003 onwards. It was directed that the period of service rendered by the 1st petitioner from 01/09/2003 to 03/08/2008 will not be counted for any service benefits. With respect to Smt.Anu. A it was directed to appoint her with effect from 07/09/2009 as a regular appointment with monetary benefits from 04/08/2008 onwards. The 3rd respondent was directed to forward the proposals accordingly, for approval of the 2nd respondent.
3. The petitioners are challenging Ext.P11 mainly to the extent that it ordered re-fixation of the date of appointment of the 1st petitioner as 04/08/2008, for the purpose of counting service benefits. Apprehension expressed by the 2nd petitioner is that by virtue of Ext.P11 decision refixing the date of appointment of the 1st petitioner, consequential re-fixation will be made with respect to her date of appointment. Learned counsel appearing for the petitioners pointed out that, a decision affecting the petitioners was rendered in total violation of principles of natural justice. It is pointed out that the petitioners were not parties either before this court in Ext.P9 judgment or before the 1st respondent. The 1st respondent ought to have afforded ample opportunity to the petitioners before a decision is taken which will adversely affect the approved service of the petitioners. Further it is pointed out that, Ext.P11 to the extent it ordered re-fixation of the date of the appointment of the 1st petitioner, is absolutely non speaking and was issued on a total non application of mind. It is contended that nothing is reflected in Ext.P11 by way of reasoning to curtail the service of the 1st petitioner. There is no finding arrived by the 1st respondent to the effect that, by virtue of the direction issued for appointment of the 4th respondent with effect from 16/11/2001, the appointment of the 1st petitioner from 01/09/2003 is liable to be cancelled. Nor there is any finding to the effect that the appointment of the petitioner was made against a vacancy which arose consequent to non approval of the appointment of the 4th respondent. Further the 1st respondent had not considered the aspect that the petitioner as well as other teachers appointed in the subject of Commerce after the year 2001 had approved service and continued for years together. It is trite that, without affording opportunity to all such persons if any affected, an order cannot be issued legally, in the manner as done in the case of Ext.P11.
4. Per contra, learned counsel appearing for the 4th respondent contended that there is total justification on the part of the 1st respondent in holding that the 4th respondent is entitled to be considered as appointed with effect from 16/11/2001. It is further contended that the 1st respondent was totally justified in re-fixing the date of appointment of the 1st petitioner since there existed no vacancy as on 01/09/2003, if the 4th respondent is presumed as continuing based on the appointment made on 16/11/2001.
5. Evidently, as contended by the petitioners, the decision taken by the 1st respondent in Ext.P11 to the extent it re-fixed the date of the appointment of the 1st petitioner and Smt.Anu.A, was issued in total violation of principles of natural justice. Before curtailing the benefits of the service rendered by the 1st petitioner, it was obligatory on the part of the 1st respondent to afford him with proper opportunity to object such proposal.
Further, Ext.P11 does not reflect any consideration about the reasons necessitating re-fixation of the date of appointment of the 1st petitioner. There is no evidence to show that the 1st respondent had considered the nature of vacancies which arose after the appointment of the 4th respondent on 16/11/2001 in the subject of Commerce. There is no adjudication or decision taken by the 1st respondent to the effect that if the 4th respondent has to be accommodated retrospectively from 16/11/2001, which appointment would become excess and who is the teacher to be thrown out or ousted from the service. Even in such case, the approved service of each and every teacher can be cancelled only on valid reasons, after affording reasonable opportunity of such persons affected.
6. In a nut shell, this court is of the firm opinion that Ext.P11 suffers from violation of principles of natural justice. Non application of mind is reflected in the order and the non speaking nature of the order to the extent it ordered to curtail the service period of the 1st petitioner, is explicit.
Therefore, the above Writ Petition is hereby allowed and Ext.P11 is hereby quashed, to the extent it directed to treat the date of appointment of the 1st petitioner as 04/08/2008 and to the extent it declared that the period of service rendered by the 1st petitioner from 01/09/2003 to 03/08/2008 will not be counted for any service benefits. The 1st respondent is directed to re-consider the matter to the above extent and to take a fresh decision after affording opportunity to all the parties concerned, who will be affected by such decision. A fresh decision in this regard shall be taken at the earliest possible, at any rate, within a period of three months from the date of receipt of copy of this judgment.
Sd/- C.K. ABDUL REHIM JUDGE MJL