Asgar Ali Khan and Sheeja K.U. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936** ## **WP(C).No. 30900 of 2010 (J)** **----------------------------** **PETITIONER(S): --------------------------** ## **1. ASGAR ALI KHAN,** **ARABIC LANGUAGE TEACHER, ST.MARY'S A.U.P. SCHOOL, CHEENGERI, P.O. KUMBLERI, WAYANAD DISTRICT.** ## **2. SHEEJA K.U.,** **UPPER PRIMARY SCHOOL ASSISTANT, ST.MARY'S A.U.P. SCHOOL, CHEENGERI, P.O. KUMBLERI, WAYANAD DISTRICT.** **BY ADV. SRI.K.T.SHYAMKUMAR.** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.** **3. DISTRICT EDUCATIONAL OFFICER, WAYANAD-673 576.** **4. ASSISTANT EDUCATIONAL OFFICER, SULTHAN BATHERY, WAYANAD DISTRICT-673 592.** **BY GOVT. PLEADER SMT.ROSE MICHAEL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 30900 of 2010 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE APPOINTMENT ORDER DATED 15/01/2003 OF THE 1ST PETITIONER.** - **EXT.P2 COPY OF THE ORDER DATED 15/03/2003 ISSUED BY THE 4TH RESPONDENT.** - **EXT.P3 COPY OF THE APPOINTMENT OF THE 2ND PETITIONER.** - **EXT.P4 COPY OF THE ORDER DATED 16/08/2004 ISSUED BY THE 4TH RESPONDENT.** - **EXT.P5 COPY OF THE LETTER DATED 22/11/2003 ISSUED BY THE MANAGER TO THE 1ST RESPONDENT.** - **EXT.P6 COPY OF THE LETTER DATED 01/06/2005 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.** - **EXT.P7 COPY OF THE GO(P) NO.46/2006/G.EDN. DATED 01/02/2006. EXT.P8 COPY OF THE LETTER DATED 14/02/2006 ISSUED BY THE AEO.** - **EXT.P9 COPY OF THE ORDER DATED 21/05/2007 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P10 COPY OF THE ORDER DATED 05/05/2007 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P11 COPY OF THE ORDERS DATED 12/11/2007 AND 02/05/2007 ISSUED BY THE DPI AND THE ORDER DATED 05/08/2008 ISSUED BY THE GOVERNMENT.** - **EXT.P12 COPY OF THE LETTER DATED 07/07/2009 ADDRESSED TO THE GOVERNMENT BY THE DPI.** - **EXT.P13 COPY OF THE ORDER DATED 11/03/2010 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P14 COPY OF THE JUDGMENT IN WP(C).NO. 9166/2009 AND CONNECTED CASES.** ## **RESPONDENT'S EXHIBITS:-** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## P.R.RAMACHANDRA MENON, J. --------------------------------------W.P.(C) No.30900 of 2010 (J) ---------------------------------------Dated this the 22[nd] day of July, 2014 ## JUDGMENT Non approval of the appointment of the petitioners as Arabic language teacher and 'UPSA' (Upper Primary School Assistant) respectively in the St.Mary's A.U.P.School, Cheeneri in Wayanad District, for not having appointed a protected teacher in terms of the relevant Government Orders issued by the first respondent, is the subject matter of challenge in this writ petition. 2.The sequence of events narrated by the petitioners shows that the first petitioner was appointed as an Arabic language teacher as per Ext.P1 appointment order dated 15.01.2003 and the second petitioner was appointed as a UPSA as per Ext.P3 dated 21.06.2004. The approval sought for was rejected as per Exts.P2 and P4 orders passed by the 4[th] respondent. The manager of the school approached the first respondent by submitting Ext.P5 pointing out the facts and figures, particularly that a protected teacher was already in service and that in spite of waiting for more than 7½ months W.P.(C) No.30900 of 2010 (J) 2 to have the list of protected teachers to give appointment, no such list was furnished at any point of time, thus leading to the appointment effected by the manager. It was also stated in Ext.P5 that, the manager was ready to appoint protected teacher in the next arising vacancy and that there will arise two retirement vacancies of primary teachers on 31.03.2004. 3.The fact that no list of protected teachers was available is discernible from Ext.P6 proceedings dated 01.06.2005 of the AEO, Sulthan Bathery. The appointment of the petitioners however came to be approved with effect from 01.02.2006 pursuant to Ext.P7 G.O. issued by the first respondent on 01.02.2006. It was specified therein that the list of protected teachers included in the list appended thereto (402) could be approved on the basis of Ext.P7 G.O. with effect from the date of G.O. and without any retrospective application. It is pointed out that the names of the petitioners were not included in the list of 402 teachers mentioned therein, as borne by Ext.P8 dated 14.02.2006 of the concerned AEO, and that the petitioners stand on a different footing. The specific case of the petitioners is that, at the time of appointment of the first petitioner, a protected teacher by name 'Philomina' W.P.(C) No.30900 of 2010 (J) 3 was working in the school right from 13.10.1983 and that she continued there till her retirement on 31.03.2004. Subsequently, another protected teacher by name 'Baby Narapatta' was appointed in the school on 19.10.2004 and this being the position, there is substantial compliance with the mandate of the relevant G.O.s. There is also a case of the petitioners that, while granting approval of the appointment of the petitioners pursuant to Ext.P6 G.O., confinining it only with effect from the date of the G.O. (and not with effect from date of appointment) instance of discrimination is pointed out with reference to Ext.P11 proceedings, whereby the concerned respondent had given appointment to similarly situated persons with effect from their 'date of appointment', on coming across of fact that the concerned school had subsequently appointed a protected teacher. This being the position, Exts.P9 and P10 proceedings issued by the third respondent in respect of the petitioners 1 and 2 respectively and Ext.P13 order dated 13.03.2010 passed by the first respondent dismissing the appeal are stated as unsustainable and hence subjected to challenge in this writ petition. 4 W.P.(C) No.30900 of 2010 (J) - 4.The first respondent has filed a counter affidavit virtually seeking to re-iterate their stand with reference to the contents of Ext.P7 G.O., also pointing out that, approval of the appointment of the petitioners having already been given effect from the date of the G.O., nothing further survives to be considered. - 5.Heard the learned counsel for the petitioner as well as the learned Government Pleader at length. - 6.During the course of hearing, it is brought to the notice of this Court that, rights and liberties of similarly situated persons have already been considered by this Court and that relief has been granted as per judgment dated 23.09.2011 in W.P.(C) No.9166 of 2009 and connected cases, as per Ext.P14 judgment. The petitioners seek for similar benefits, granting approval from the date of their appointment. - 7.It is to be noted that, there is no factual dispute with regard to the appointment of a protected teacher by name 'Philomina' who was continuing in the concerned school from 1983, up to March 2004 till her retirement. Appointment of W.P.(C) No.30900 of 2010 (J) 5 the first petitioner was when Philomina/protected teacher was continuing as above. The fact that another protected teacher by name 'Baby Narapatta' was appointed in the said school on 19.10.2004, is also not disputed. The said factual position has been conceded by the second respondent as well, as revealed from Ext.P12 communication dated 07.07.2009 sent by the said respondent to the first respondent, also referring to the regularisation of appointment given in respect of the other similarly situated persons with effect from the date of their appointment. It has been categorically stated by the second respondent in Ext.P12 that, the two petitioners herein are not included in the list of teachers appended to Ext.P7 G.O. dated 01.02.2006. 8.There is a case for the first respondent as borne by paragraph 2 of the counter affidavit dated 16.04.2012, that non availability of the protected hands at the time of appointment of the petitioners, as stated in Exts.P5 and P6 letters is not a reason to consider the approval of appointment of the petitioners and that the manager was solely responsible for the appointments made against the W.P.(C) No.30900 of 2010 (J) 6 rules then prevailed. 9.Referring to Rule 6(viii) of Chapter V and also Rules 1 and 7 of Chapter XIVA of the KER, this Court has already held as per Nadeera T.S. and Another v. State of Kerala and Others [2011 (3) KHC 650] that there is no enabling provision which allows the Educational Officer to postpone approval of qualified hands till a protected hand is appointed as per the concerned G.O dated 19.11.2009 and that the manager cannot postpone the appointment of qualified teachers when posts are sanctioned by staff fixation orders. It has been further made clear by the Division Bench of this Court as per the decision reported in State of Kerala and Others v. S.Haseena and Another [2013 (2) KHC 103] that, by virtue of Rule 6(viii) of Chapter V KER, the only obligation cast on the Managers of the aided school is that they must appoint the protected teachers, whenever a list is sent and that there is no other obligation cast up on them beyond that. The factual position that, no list of protected teacher was available as on the relevant date is discernible from Exts.P5 & P6 and it also stands conceded by the second respondent/Director of Public Instructions as well, vide Ext.P12 proceedings dated W.P.(C) No.30900 of 2010 (J) 7 07.07.2009 sent to the first respondent. This being the position, there is absolutely no rhyme or reason for having denied approval of the appointment of the petitioners with effect from their date of appointment covered by Exts.P1 and P3. This Court finds that the petitioners are entitled to have similar benefits as granted to the petitioners in Ext.P14, under similar circumstances. - 10.In the above circumstances, the impugned orders are set aside and the concerned respondent is directed to approve the appointment of the petitioners with effect from the date of appointment and to pass consequential orders disbursing the eligible benefits if any, in accordance with the relevant provisions of law, at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment. The writ petition is allowed. No cost. Sd/- P.R.RAMACHANDRA MENON, JUDGE AMV/25/7/