C. Iqbal 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 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934** ## **WP(C).No. 15702 of 2011 (K)** **-----------------------------------------** ## **PETITIONER** **------------------** **C.IQBAL, S/O.MOHAMMED KUTTY (LATE), AGED 33 YEARS, FULL-TIME MENIAL, DARUL ULOOMHIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT.** **BY ADVS.SRI.K.E.HAMZA SRI.M.SAJJAD** ## **RESPONDENTS** **-----------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,** **GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM, POST MALAPPURAM-676519.** **4. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM, POST MALAPPURAM-676519.** **5. THE MANAGER,** **DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA-679 357, MALAPPURAM DISTRICT.** - **BY ADV. GOVERNMENT PLEADER SRI.BIJU MEENATTOOR** ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MG** **WP(C).No. 15702 of 2011 (K) -----------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1:COPY OF THE ORDER NO.K.DIS.B3/3651/2006 OF THE DISTRICT EDUCATIONAL OFFICER. EXT.P2:COPY OF THE ORDER NO.K.DIS.B2/38895/06 OF THE DEPUTY DIRECTOR. EXT.P3:COPY OF THE ORDER NO.EM(4)27674/07/DPI/D.DIS.OF THE 2ND RESPONDENT. **EXT.P4 REPLACED EXT.P4:COPY OF THE ORDER NO.36143/N2/09/G.EDN.OF THE GOVERNMENT. (EXT.P4 REPLACED AS PER ORDER DATED 04.11/2011 IN I.A.17294/11) *EXT.P4:COPY OF THE LETTER NO.3900/N1/2008/G.EDN. OF THE GOVERNMENT. EXT.P5:COPY OF THE ORDER NO.46164/N1/10/G.EDN.OF THE GOVERNMENT. EXT.P6:COPY OF THE G.O(P)NO.178/2002/G.EDN.OF THE GOVERNMENT. EXT.P7:COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN. OF THE GOVERNMENT. EXT.P8:COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN W.P(C) NO.2563/2008-E EXT.P9:COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN W.P(C) NO.8039/2008-F. EXT.P10:COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN W.P(C) NO.18986/2009-P. EXT.P11:COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN W.P(C) NO.8553/2009-L. EXT.P12:COPY OF THE CIRCULAR NO.38929/J1/2009/G.EDN.OF THE GOVERNMENT. EXT.P13:COPY OF THE CIRCULAR NO.1679/J2/2010/G.EDN.OF THE GOVERNMENT. EXT.P14:COPY OF THE ORDER NO.B3/21842/2010 OF THE DEPUTY DIRECTOR. EXT.P15:COPY OF THE G.O(RT)NO.3776/2006/G.EN. OF THE GOVERNMENT. EXT.P16:COPY OF THE APPOINTMENT ORDER OF SRI.P.UMMER FAROOQ DATED 05.06.2006 AND THE APPROVAL THEREOF DATED 21.11.2006. EXT.P17:COPY OF THE DECISION REPORTED IN 2011 (3)K.L.T.790 DATED 04.08.2011. MG (CONTD.......)** **-2-** **WP(C).No. 15702 of 2011 (K) -----------------------------------------** **EXT.P18:COPY OF THE LETTER NO.39907/N2/2005/G.EDN.OF THE GOVERNMENT DATED 25.07.2005.** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE** ## **MG** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15702/2011-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4[th] day of April, 2012`** ## **`J U D G M E N T`** The writ petitioner herein was appointed as Full Time Menial with effect from 05/06/2006 in the promotion vacancy of Shri Ummer Farook who was promoted as Peon from the post of Full Time Menial. 2. The approval was rejected by Ext.P1 order stating that the school is a newly upgraded school and, as per G.O.(P).No.178/02/G.Edn., dated 28/06/2002, the vacancy should be filled up by a protected hand. The appeal and revision filed against the same were also rejected for the same reason. 3. The learned counsel for the petitioner submitted that there is a clear vacancy for appointment of the petitioner and, in the light of the various Judgments of this Court, the stand taken by the respondents cannot be accepted. It is the case of the petitioner that no protected hand was available. 4. In the counter affidavit filed by the third respondent in para.5, it is stated that the list of protected hands was prepared by the Deputy Director of Education and the same was forwarded to all Educational Officers. The name of Shri Mohammed, F.T.M of Z.M.H.S Poolamangalam was included ## **W.P.(C). No.15702/2011** ## **-:2:-** in the list as protected hand. He was deployed to an aided school, namely, I.I.H.S Pothukal only on 09/08/2007. Hence, he was available. 5. With regard to the communication of the list of protected hands to the Manager herein, what is stated in the counter affidavit is that the Manager should have asked for the list as and when a vacancy arises in the school. But the Manager did not ask for the list of protected hands. 6. One of the other aspects pointed out by the petitioner is that G.O.(P).No.178/02/G.Edn., dated 28/06/2002 is not applicable to non teaching staff. Reliance is placed on Ext.P18, a communication from the Government dated 25/07/2005 to the Director of Public Instruction. Therein, it is mentioned that G.O.(P).No.178/02/G.Edn., dated 28/06/2002 is applicable only in the case of teachers. Accordingly, the Government has requested to approve the appointment of one Shri N.P.Varghese, as Full Time Menial of M.S.V.H.S.S., Valakom with effect from 18/06/2002. It is submitted by the learned counsel for the petitioner that the said appointment was later approved. 7. One of the remaining points, therefore, is regarding the non communication of the list of protected hands to the Manager. Exts.P9, P10 and P11 are Judgments of this Court rendered on identical issues. This Court in the said Judgments were of the view that unless a list of protected ## **W.P.(C). No.15702/2011** ## **-:3:-** hands is communicated to the Manager, the Manager cannot be found fault with for not absorbing a protected hand. 8. In W.P.(C).No.18986/2009, the facts were similar, and appointment was in a non teaching post. Ext.P10 is the Judgment thereon. Therein, in para.7 it is held as follows, (after considering G.O.(P). No.178/02/G.Edn., dated 28/06/2002): “ **On the terms of the above Government Order, it is** ## **evident that it applies only to the appointment of teachers.** Even in that Government Order, in clause (1) it is stipulated that the Deputy Director of Education concerned shall make available district-wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. Hence, on the terms of the Government Order, dated 28/06/2002, the said Government Order can have no application to the case on hand. The Manager of an aided school in a district (Malappuram District) cannot have personal knowledge of all protected hands in that district or education sub districts who are required to be absorbed in terms of rule 6(viii) of Chapter V of the Kerala ## **W.P.(C). No.15702/2011** ## **-:4:-** Education Rules. Necessarily therefore, such information should be made available to the Managers of newly opened schools by the concerned District Education Officers. .................” This Court was also of the view that the said Government Order applies only to the appointment of teachers. Therefore, the reliance placed on G.O.(P).No.178/02/G.Edn., dated 28/06/2002 to decline the approval of the appointment herein is not correct. 9. In Ext.P11 Judgment also, in identical circumstances, this Court held that unless the list of protected teachers is communicated, the Manager cannot be found fault with. 10. Herein, even going by the averments in counter affidavit, the details of protected hands was not communicated to the Manager. What is projected as a reason is that the Manager should have asked for the same. Such a contention cannot be accepted in the light of various Judgments of this Court and, finally, in the light para.20 of the Judgment of this Court in **Nadeera v. State of Kerala [2011 (3) 790]** wherein all the earlier Judgments have been considered and the legal position laid down therein is thus: ## **W.P.(C). No.15702/2011** ## **-:5:-** “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 entitled to succeed in the Writ Petition.” ## **W.P.(C). No.15702/2011** ## **-:6:-** 11. In that view of the matter also, the petitioner is entitled to succeed in the writ petition. The impugned orders Exts.P1 to P5 are quashed. It is declared that the petitioner is entitled for grant approval of appointment as Full Time Menial and there will be a direction to the fourth respondent to pass appropriate orders granting approval in terms of the appointment order and, it is further declared that he is entitled for all consequential monetary benefits along with arrears from the date of approval. The order as above will be passed within a period of two months from the date of receipt of a copy of this Judgment and the benefits will be disbursed within a further period of two months. The writ petition is allowed. No costs. ``` Sd/- ``` ## **`(T.R. Ramachandran Nair, Judge.)`** ## **`ms`**