High Court of KeralaSingle Judge2017-10-24Writ petition allowed

A.RAHMATH W/O UMMER FAROOQ v. THE STATE OF KERALA AND OTHERS

Case / Petition Number:WP(C).No. 28819 of 2015 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.ASHA
Judgment Date: 2017-10-24
Court Decision / Holding: The writ petition is allowed. Ext.P6 denying approval is illegal. The 4th respondent is directed to issue revised orders approving the petitioner’s appointment w.e.f. 15.02.2008, re-fix pay, and grant all consequential benefits and arrears within four months from receipt of a copy of this judgment.
Final Disposition: Writ petition allowed

Parties to the Case

Appellants / Petitioners

A.RAHMATH W/O UMMER FAROOQ

Respondents

THE STATE OF KERALA
THE DIRECTOR OF PUBLIC INSTRUCTIONS
THE DEPUTY DIRECTOR OF EDUCATION
THE DISTRICT EDUCATIONAL OFFICER
THE MANAGER, DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.A. Muhammed
• Sri M. Sajjad

Counsels for Respondents

• Smt. Mary Beena Joseph

Case Synopsis & Summary

This writ petition challenges the denial of approval to the petitioner’s appointment as H.S.A. (Hindi) in Darul Uloom Higher Secondary School, Thootha, Malappuram. The petitioner began service as an LG Hindi teacher on 19.06.2007 under Exhibit P1, against a leave vacancy, and was later appointed as H.S.A. (Hindi) on 15.07.2008 under Exhibit P2 for an anticipated post in 2007-2008. Educational authorities denied approval on the ground of a pending ban on appointments. Even after the ban was lifted, the Manager executed a bond under G.O.(P) No.10/2010/G.Edn dated 12.01.2010, but approval was not granted on the basis that no protected Hindi teacher was available in the district, and the school was newly upgraded. The petitioner contends that approval should be granted from 15.02.2008, with pay fixation and arrears, since there was no protected Hindi teacher available and the denial was unjustified. The respondents contend that absorption of a protected teacher was mandatory; without such a teacher in Malappuram during 2008-2009, approval could not be granted. The court analyzes the relevant GOs and prior case-law, including State of Kerala v. Nadeera (2013) and the ILR 2016 decision in Kerala Aided LP and UP Schools Manager v. State of Kerala, noting that the amendment in G.O.154/14 was set aside. The petition is allowed: Ext.P6’s denial is illegal, revised orders approving the petitioner’s appointment are to be issued, pay re-fixation and arrears to be provided within four months.

Provisions of Law Cited

G.O(MS)NO. 275/99/G.EDN.G.O(P).178/2002/G.Edn.G.O(P).46/2006/G.Edn.G.O.(P).No.10/2010/G.Edn.G.O(P).No.52/2011/G.Edn.G.O(P).No.154/14/G.Edn.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that her appointment as H.S.A. (Hindi) arose during a period of ban on appointments, which was later lifted. She asserts that there was no protected Hindi teacher available in Malappuram when the post was created and that the Manager’s bond under G.O.(P) No.10/2010/G.Edn was a valid commitment. She seeks retroactive approval from 15 February 2008 with pay fixation and arrears. She challenges Ext.P6 denial as unjustified given the lack of a protected Hindi teacher and cites the absence of a protected-teacher list as a factor supporting approval (citing State of Kerala v. Nadeera, 2013 (2) KLT 88 (D.B)). She notes that amendment GO 154/14/G.Edn was held to be ineffective by ILR 2016 (1) KER 590, and asks for approval despite these developments. The petition seeks issuance of revised orders approving the appointment and consequent benefits.

Contentions of Respondents

The respondents contend that the petitioner's appointment occurred during a ban on recruitment and that, even after lifting the ban, absorption of a protected teacher in Hindi was required. They point out that no protected Hindi teacher existed in Malappuram during 2008-2009 and that the Manager did not absorb any protected teacher, making approval untenable. They rely on GO provisions and the policy to protect rights of protected teachers, arguing that denial of approval was lawful and necessary to uphold the administrative framework. They contend that the later amendments (GO 154/14) were set aside in ILR 2016 (1) KER 590 and should not influence the present decision in favor of the petitioner.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Nadeera	2013 (2) KLT 88 (D.B)	Positive	The court notes that, as in State of Kerala v. Nadeera, denial of approval cannot be based solely on the non-availability of a protected teacher where no list is available to absorb such teachers.
Kerala Aided LP and UP Schools Manager v. State of Kerala	ILR 2016 (1) KER 590	Overruled	The amendment referred to in that decision was set aside by this Court, indicating the amendment’s effect was negated at that time.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** **WP(C).No. 28819 of 2015 (B) ----------------------------** ## **PETITIONER : -------------** **A.RAHMATH W/O. UMMER FAROOQ, AGED 29 YEARS, H.S.A (HINDI), DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT (RESIDING AT POYYAKUDI, THOOTHA, MALAPKPURAM DISTRICT - 679 357)** **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS :** **--------------** |**1.**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO**| ||**GOVERNMENT, GENERAL EDUCATION DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM -695 001.**| |**2.**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**JAGATHY, THIRUVANANTHAPURAM - 695 001.**| |**3.**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**DOWN HILL, MALAPPURAM - 676 519.**| |**4.**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**DOWN HILL, MALAPPURAM - 676 519.**| |**5.**|**THE MANAGER,**| ||**DARUL ULOOM HIGHER SECONDARY SCHOOL,**| ||**THOOTHA, MALAPPURAM - 679 357.**| **...2...** **WP(C).No. 28819 of 2015 (B)** **----------------------------** **-2-** **R1-R4 BY SR.GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 28819 of 2015 (B)** **----------------------------** **-3-** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**EXHIBIT-P1**|**-**|**COPY OF THE APPOINTMENT ORDER DATED**| |---|---|---| |||**19/06/2007 OF THE PETITIONER**| |**EXHIBIT-P2**|**-**|**COPY OF THE APPOINTMENT ORDER DATED**| |||**15/07/2008 OF THE PETITIONER**| |**EXHIBIT-P3**|**-**|**COPY OF THE ORDER OF THE DISTRICT**| |||**EDUCATIONAL OFFICER DATED 02/02/2009.**| |**EXHIBIT-P4**|**-**|**COPY OF THE G.O(MS)NO. 275/99/G.EDN.**| |||**DATED 09/11/1999**| |**EXHIBIT-P5**|**-**|**COPY OF THE DECLARATION OF THE**| |||**MANAGER DATED 14/02/2011.**| |**EXHIBIT-P6**|**-**|**COPY OF THE GOVERNMENT LETTER NO.**| |||**59428/E1/2011/G.EDN. DATED 28/03/2015**| |**EXHIBIT-P7**|**-**|**COPY OF THE GOVERNMENT LETTER NO.**| |||**18049/E1/2015/G.EDN. DATED**| |||**08/07/2015.**| |**EXHIBIT-P8**|**-**|**COPY OF THE LETTER OF THE DEPUTY**| |||**DIRECTOR OF EDUCATION DATED**| |||**23/04/2011.**| |**EXHIBIT-P9**|**-**|**COPY OF THE G.O(P) NO. 52/2011/G.EDN.**| |||**DATED 26/02/2011.**| |**EXHIBIT-P10**|**-**|**COPY OF THE ORDER OF THE DISTRICT**| |||**EDUCATIONAL OFFICER DATED 21/10/2014.**| |**RESPONDENTS'**|**EXHIBITS**<br>**:**<br>**NIL**|| |**-----------------------**||| **TRUE COPY** **PA TO JUDGE** **RKM** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.28819 of 2015** **-------------------------------------** Dated this the 24[th] day of October, 2017 ## **J U D G M E N T** Petitioner commenced her service as LG Hindi teacher on 19.06.2007 based on Ext.P1 order of appointment, against a leave vacancy for the period from 19.06.2007 to 12.06.2012. While continuing in that post, she was appointed as HSA (Hindi) as per Ext.P2 order on 15.07.2008, against an anticipated additional post for the year 2007-2008. The Educational authorities declined approval to this appointment, on the ground that there was a ban on appointment. Producing Ext.P5 bond executed by the Manager on 19.02.2011 agreeing to abide by the conditions in terms of G.O.(P).No.10/2010 G.Edn. dated 12.01.2010, petitioner submits that approval was not granted even thereafter. The petitioner approached the Government; the revision petition submitted by her was rejected as per Ext.P6 order. Petitioner submits that she got her appointment approved with effect from 01.06.2011. W.P.(C).No.28819 of 2015 2 The grievance of the petitioner is on the denial of approval for the period from 15.07.2008 to 01.06.2011. 2. The 1[st] respondent has filed a counter affidavit stating that appointment of the petitioner was made at a time when there was a ban on appointment. It is stated that the School was a newly upgraded one and therefore as per G.O(P).No.178/2002/G.Edn. dated 28.06.2002 and G.O(P). No.46/2006/G.Edn. dated 06.02.2006, the Manager ought to have absorbed a protected teacher. Therefore even after the ban was lifted as per G.O(P).No.10/10/G.Edn. dated 12.01.2010 and the Manager executed a bond, in terms of that, the appointment of petitioner could not be approved. However, it is admitted that no protected teacher in Hindi was available in the Revenue District Malappuram during 2008-2009. However since the Manager did not absorb any protected teacher in the School, the approval cannot be granted to the appointment of petitioner. 3. Heard the learned counsel for the petitioner as well as the learned Government Pleader and considered the contentions raised on either side. 4. The grounds on which approval is denied to the W.P.(C).No.28819 of 2015 3 petitioner is that there was a ban on appointment and that even though the Manager executed the bond in terms of G.O. (P) 10/10/G.Edn dated 12.01.2010 when the ban was lifted and the additional post was sanctioned, the Manager had not appointed any protected teacher in the School. 5. Therefore it can be seen that the petitioner was appointed at a time when there was justification for a post of H.S.A Hindi in which she was appointed; but ban was lifted when the Manager executed the bond. Then the only reason which remained was no protected teacher was appointed in the School. But as far as the subject Hindi is concerned, the 3[rd] respondent has in the counter affidavit admitted that there was no protected teacher. When there was no protected teacher in Hindi, the denial of approval of petitioner's appointment is unjustified. Though the liability to appoint a protected teacher was thereon the Manager, because the School was a newly opened one, in the absence of a protected teacher in Hindi, the petitioner's appointment should have been denied approval when ban was lifted as soon as the Manager executed the bond. Even in cases where there are protected teachers, W.P.(C).No.28819 of 2015 4 this Court has held that unless a list of protected teachers is made available to the Manager, approval cannot be denied for not appointing protected teachers (see State of Kerala v. Nadeera [2013 (2) KLT 88 (D.B)]. Another reason stated in Ext.P6 was that prior service as teacher approved from 01.06.2011 including her in the teachers package is not liable to be considered as per amendment in KER in G.O.(P).No.154/14/G.Edn. dated 11.08.2014. But that amendment to that effect was set aside by this Court in Kerala Aided LP and UP Schools Manager v. State of Kerala (ILR 2016 (1) KER 590) 6. In these circumstances, - i) the order Ext.P6 denying approval to the appointment of petitioner as H.S.A Hindi w.e.f. 15.07.2008 is illegal and hence it is set aside. - ii) there shall be a direction to the 4[th] respondent to issue revised orders approving the appointment of the petitioner in accordance with the orders of her appointment in Ext.P2 w.e.f. 15.02.2008 and - iii) to re-fix her pay based on such revised approval W.P.(C).No.28819 of 2015 5 and to grant her all consequential benefits and disburse the arrears of pay due to her, accordingly, within a period of four months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- **P.V.ASHA, JUDGE.** AS