A.R. Nasimudheen v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933** **WP(C).No. 23557 of 2008(D)** **---------------------------------------** **PETITIONER:** - **-------------------** ## **A.R.NASIMUDHEEN, AGED 27 YEARS, S/O.ABDUL RAHIM, LOWER PRIMARY SCHOOL ASSISTANT, HAYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, ALAPPUZHA DISTRICT-5.** **BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA.** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.** **3. DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA DISTRICT.** **4. ASSISTANT EDUCATIONAL OFFICER, AMBALAPPUZHA, ALAPPUZHA DISTRICT.** **5. MANAGER, HAYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, ALAPPUZHA DISTRICT -5.** **R1 TO R4 BY GOVERNMENT PLEADER SMT. NISHA BOSE, R5 BY ADVS. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR), SRI.K.P.CHANDRASEKHAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.23557/2008-D:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE ORDER NO. D.3332/05/D. DIS. OF THE ASST. EDL. OFFICER DTD. 25/06/2005.** **EXT.P.2: COPY OF THE ORDER NO. B5/5341/05/K. DIS. OF THE DIST. EDL. OFFICER DTD. 06/09/2005.** **EXT.P.3: COPY OF THE ORDER NO. K. DIS. F3-15256/06/DPI OF THE DIRECTOR DTD. 30/03/2006.** **EXT.P.4: COPY OF THE ORDER NO. 4853/H2/07/G. EDN. OF THE GOVERNMENT DTD. 10/06/2008.** ## **EXT.P.5: COPY OF THE LETTER OF THE MANAGER DTD. 27/03/2006.** **EXT.P.6: COPY OF THE APPOINTMENT ORDER OF SMT. A. JASEENA DTD. 02/06/2004.** **EXT.P.7: COPY OF THE APPOINTMENT ORDER OF SMT. GEETHA G. NAIR DTD. 03/06/2004.** **EXT.P.8: COPY OF THE G.O.(RT).NO.3805/06/G. EDN. OF THE GOVERNMENT DTD. 26/08/2006.** **EXT.P.9: COPY OF THE G.O.(RT).NO.3776/2006/G. EDN. OF THE GOVERNMENT DTD. 24/08/2006.** **EXT.P.10: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 5258/2003-A DTD. 10/11/2006.** **EXT.P.11: COPY OF THE DECISION REPORTED IN 1993 (2) K.L.T. SHORT NOTES P. 27 C.28 DTD. 02/08/1993.** ## **EXTS. 12 TO 17 NIL.** ## **EXT.P.18: COPY OF THE LETTER OF THE MANAGER DTD. 01/07/2009.** **EXT.P.19: COPY OF THE DECISION REPORTED IN 2009 (3) K.L.T. 863 DTD. 29/06/2009.** **EXT.P.20: COPY OF THE LETTER NO.A4/15448/09 OF THE DEPUTY DIRECTOR OF EDUCATION DTD. 15/09/2009.** **EXT.P.21: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.7847/1983-A DTD. 07/11/1986.** ## **EXT.P.22: COPY OF THE -DO- IN W.P.NO.770/1987 DTD. 24/10/1987.** **EXT.P.23: COPY OF THE JUDGMENT IN W.A. NO.183/2010 DTD. 21/07/2010.** **EXT.P.24: COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP NO.36556/2010 DTD. 31/01/2011.** **EXT.P.25: COPY OF THE JUDGMENT IN W.P.(C).NO.29151/2009 DTD. 04/06/2010.** **W.P.(C). NO.23557/2008-D:** ## **RESPONDENTS' EXHIBITS:** **EXT.R5.A: COPY OF THE LETTER OF THE MANAGER DT. 10/06/08. EXT.R5.B: COPY OF THE LETTER DT. 19/08/08 OF D.D. OF EDUCATION, ALAPUZHA.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.23557/2008-D** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20[th] day of July, 2011** ## **J U D G M E N T** The only question is whether the petitioner is entitled for approval of appointment from 01/06/2005 as Lower Primary Schoo1 Assistant. 2. He was appointed by the Manager in an existing vacancy, namely, a retirement vacancy. But the Educational Officers rejected the approval on the plea that no protected teacher was appointed. By Exts.P6 and P7 orders, the approval of senior teachers were granted. It is pointed out by the petitioner that by Ext.P5, the Manager agreed to appoint a protected teacher in the next arising vacancy. During the pendency of the writ petition, the appointment has been approved with effect from 01/07/2009 which is the date of appointment of a protected teacher. 3. Learned counsel for the petitioner submitted that as on the date of appointment of the petitioner, no protected teacher was available for deployment as evident from Ext.P20 communication of the Public Information Officer, Office of the Deputy Director of Education, Alappuzha and, therefore, in the light of the Judgment of this Court in **Moosakutty vs. DEO [2009 (3) KLT 863]** , the right of the petitioner for approval from the ## **W.P.(C). No.23557/2008** ## **-:2:-** date of appointment cannot be denied. A reading of Ext.P20 shows that no protected teacher was available in the Educational Sub District. This was for the year 2005. 4. Learned Government Pleader on getting instructions on the said communication submitted that protected teachers were available in the Revenue District. 5. Whether the obligation of the Manager is to appoint a protected teacher from the Educational Sub District as the case may be is the question next arising since the school is a Primary Schoo1. This aspect is answered in favour of the petitioner in **Moosakutty's case [2009 (3) KLT 863]** wherein this Court held thus in paragraphs (6, 8 & 9):- “Going by R.6 (viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-District in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such is confined to the prescriptions of the said ## **W.P.(C). No.23557/2008** ## **-:3:-** paragraph. Under R.9 of Chap.III the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “in conformity with the provisions of the Act and the Rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the Aided Primary School in Wandoor Educational SubDistrict. This is in terms of sub-r.(viii) of R.6 of Chap. V, K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.III, K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P).No.83/88/G.Edn., dated 18.04.1988. An executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced.” The said Judgment has become final as the W.A filed against the same stands dismissed as per Ext.P23 Judgment and the Special Leave Petition has also been dismissed as evident from Ext.P24 order. ## **W.P.(C). No.23557/2008** ## **-:4:-** 6. Therefore, it is evident that as on the date of appointment of the petitioner, no protected teacher was available in the Educational Sub District. Apart from that once the appointee is found qualified and there is an established vacancy, normally, the appointment is liable to be approved from the date of appointment. Of course, the obligation of the Manager to appoint a protected teacher will have to be adhered to by the Manager in the light of Rule 6(viii) of Chapter V of Kerala Education Rules. Herein, deployment of a protected teacher as on the date of appointment of the petitioner was impossible as no protected teacher was available. Therefore, approval of appointment cannot be postponed till a protected teacher is available. Now, the approval is granted with effect from the date of deployment of protected teacher. But in the light of the dictum laid down in **Moosakutty's case [2009 (3) KLT 863],** the same cannot be put against the petitioner. 7. Therefore, the writ petition is allowed. It is declared that the petitioner is entitled for approval of appointment from 01/06/2005. Exts.P1 to P4 are therefore, quashed. The approval of appointment as ordered from 01/07/2009 will be modified and the approval will be granted with effect from 01/06/2005 and the consequential monetary benefits will also be ## **W.P.(C). No.23557/2008** ## **-:5:-** disbursed and appropriate orders will be passed within a period of two months. No costs. ``` Sd/- ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ``` ms ```