A.M. Sandhyamoney v. Deputy Director (Education), Office of the Deputy Director (Education), Idukki; Assistant Educational Officer, Nedumkandam; Manager, S.N.U.P. School, Pothinkandam; Headmaster, S.N.U.P. School, Pothinkandam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **FRIDAY, THE 23RD DAY OF MARCH 2012/3RD CHAITHRA 1934** ## **WP(C).No. 23509 of 2008 (W)** **----------------------------------------** ## **PETITIONER:** **-------------------** **A.M.SANDHYAMONEY, D/O.A.P.MONEY, UPPER PRIMARY SCHOOL ASSISTANT, S.N.UPPER PRIMARY SCHOOL, POTHINKANDAM, (APPANTHANATHU HOUSE, KUZHITHOLU P.O., IDUKKI).** ## **BY ADV. SRI.S.SUBHASH CHAND** **RESPONDENT(S): -------------------------** **1. DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), IDUKKI, THODUPUZHA.** **2. ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, NEDUMKANDAM.** **3. MANAGER, S.N.U.P.SCHOOL, POTHINKANDAM.** **4. HEADMASTER, S.N.U.P.SCHOOL, POTHINKANDAM.** ## **BY SMT.LOWSY.A, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-03-2012, ALONG WITH WPC.NO. 366/2009 AND WPC.NO.10699/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AS** **WP(C).No. 23509 / 2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER OF APPOINTMENT DATED 2/6/2004 ISSUED BY RESPONDENT NO.3 UPON WHICH ORDER DATED 18/12/2004 PASSED BY RESPONDENT NO.2.** **EXT.P2: COPY OF THE ORDER BEARING NO.D/3299/08 DATED 8/7/2008 ISSUED BY RESPONDENT NO.2.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **AS** **T.R. RAMACHANDRAN NAIR, J. --------------------------------------W.P.(C) Nos.23509 OF 2008 & 366 & 10699 OF 2009 --------------------------------------Dated this the 23[rd] day of March, 2012.** ## **J U D G M E N T** These writ petitions concern the issue regarding approval of appointment of respective teachers. In W.P.(C) Nos.23509/2008 and 10699/2009, the petitioner is the same. But the vacancies to which appointments have been made are different. 2. In W.P.(C) No.23509/2008, the petitioner was appointed as U.P.S.A in a regular vacancy from 02.06.2004 and the approval was granted as per Ext.P1 order. But later the Deputy Director of Education communicated Ext.P2 order directing the Manager to withhold the salary. This is under challenge in the said writ petition. In fact, this Court had granted an interim order of stay of Ext.P2 on 21.08.2008. In I.A.No.10982/2011, this Court directed the respondents to sanction periodical increments accepting the option of the petitioner for the 2006 pay revision subject to further orders to be passed in the writ petition. 3. W.P.(C) No.10699/2009 concerns claim for approval of **W.P.(C) Nos.23509/08 & 366 & 10699/09** **2** appointment for the period from 12.06.2003 to 14.10.2003, in a maternity leave vacancy. Ext.P1 is the copy of the order of appointment. The matter was taken up before various authorities and finally the Government also rejected the claim for approval by Ext.P12 order. 4. In W.P.(C) No.366/2009, the appointment is made by the Manager as per Ext.P1 order dated 12.11.2004 and the vacancy arose due to an inter management transfer. The authorities concerned rejected the grant of approval and finally the Government by Ext.P17 directed approval of the appointment from 12.03.2006 to 31.03.2006 on daily wage basis and on regular basis from 01.06.2006. This is for the reason that a protected teacher joined duty on 31.03.2006 and according to the learned counsel for the petitioner, it is 30.03.2009 that the protected hand joined the school as evident from Ext.P16. 5. The common issue that arises for consideration is whether in the absence of communication of a list of protected hands to the Manager, there is any failure of any obligation on the part of the Manager to appoint a protected teacher. In these **W.P.(C) Nos.23509/08 & 366 & 10699/09** **3** cases, the respondents have taken up the stand that as per G.O.(P)No.178/2002/G.Edn dated 28.06.2002, vacancies had to be filled up by appointing protected hands. The order Ext.P12 in W.P.(C) No.10699/2009 records the fact that the Manager had been requesting for list of protected hands and has expressed his readiness and willingness in the matter. Therein, it is recorded as follows: “Pursuant to repeated requests a list of protected teacher was prepared and issued to the Manager by the Deputy Director of Education only on 20.12.2006”. The teacher appointed did not join the school, and the vacancy was set apart by the Manager. The Government rejected the grant of approval by relying upon G.O.(P) No.178/2002/G.Edn dated 28.06.2002 and G.O.(P) No.46/2006/G.Edn dated 01.02.2006 any by holding that there is no protected teacher in the school. 6. In W.P.(C) No.10699/2009, a counter affidavit has been filed by the 3[rd] respondent District Educational Officer. It is mentioned therein that the school is an aided school and it was upgraded as U.P.School during 1980-81. Even though it is **W.P.(C) Nos.23509/08 & 366 & 10699/09** **4** stated, by relying upon G.O.178/2002/G.Edn dated 28.06.2002, that protected hands had to be appointed, significantly, there is no averment that a list of protected U.P.S.As was available in the Educational Sub District as on the date of appointment of the respective petitioners and such a list was communicated to the Manager. 7. As rightly pointed out by the learned counsel for the petitioners, the legal issue whether in the absence of list of protected hands, approval of appointment could be postponed till the appointment of a protected hand is covered by the decision of this Court in _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790) therein in paragraph 15, this Court considered various earlier judgments holding the view that unless list of protected hands is communicated to the Manager, the Manager cannot be found fault with for not appointing a protected hand. In paragraph 20, it was also held that even when a qualified teacher is appointed in a sanctioned vacancy, there cannot be any indefinite postponement of appointment on the plea that protected hands will have to be absorbed as and when they are available. Various **W.P.(C) Nos.23509/08 & 366 & 10699/09** **5** Government Orders issued from time to time have been examined in the said judgment and finally in paragraph 20 this Court has laid down thus: “20. It is in that context that the procedure for communicating the list of protected teachers forwarded under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are **W.P.(C) Nos.23509/08 & 366 & 10699/09** **6** entitled to succeed in the Writ Petition”. 8. Herein, it can be seen that the Manager was willing to absorb a protected hand but no list of protected hands was communicated at the time of occurrency of the vacancy. Evidently, it can be seen that protected hands were not available during the relevant time otherwise at least in the counter affidavit, details of any protected hands would have been mentioned. Even if such a list was there, unless the list is furnished to the Manager, he will not be able to make appointment because it depends on various factors including the school wherein protected hands are deployed by the Government. In 2006, a list was furnished, Manager appointed a protected hand but she did not join, as noted already. The vacancy was set apart by the Manager. Hence on the mere non-availability of a protected hand, the petitioners' cannot be denied approval. 9. Now a protected hand is appointed in the school from 30.03.2009 as evident from Ext.P16 produced in W.P.(C) No.366/2009. Therefore, the obligation of the Manager has already been complied with also. **W.P.(C) Nos.23509/08 & 366 & 10699/09** **7** In that view of the matter, the crucial aspect that the list of protected hands have not been communicated at the relevant time will go in a long way to accept the claim of the petitioners for approval. Accordingly these writ petitions are allowed. The impugned order in W.P.(C) No.23509/2008, Ext.P2, is quashed. The approval of appointment of the petitioner will be treated as valid. In W.P.(C) No.10699/2009, the impugned order namely, Exts.P2, P4 and P12 are quashed. There will be a direction to approve the appointment of the petitioner in terms of the appointment order Ext.P1 and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. In W.P.(C) No.366/2009, Ext.P17 to the extent to which a restricted approval is granted is quashed. It is declared that the petitioner is entitled for approval from 12.11.2004 as per Ext.P1 and appropriate orders will be passed approving the appointment from the said date. Consequential monetary benefits will be sanctioned to the petitioner in W.P.(C) No.10699/2009 in the leave vacancy period and as far as W.P.(C) No.366/2009 is concerned, arrears consequent on the grant of **W.P.(C) Nos.23509/08 & 366 & 10699/09** **8** approval, less the amount already paid will be sanctioned. This Court has already granted an interim order in W.P.(C) No.23509/ 2008 directing grant of increments and revision of pay scales which will be treated as regular. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp