Fasalul Haque v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** # **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943** **WP(C) NO. 1022 OF 2014** ## **PETITIONER:** **FASALUL HAQUE, AGED 35 YEARS, S/O.ALIKUTTY HAJI, V.K.HOUSE, VILAYIL P.O., KUZHIMANNA VIA, MALAPPURAM DISTRICT-673 652.** **BY ADVS. SRI.P.K.MOHAMED JAMEEL SRI.ABDUL SHUKOOR MUNDAMBRA** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 014.** - **3 THE DISTRICT EDUCATIONAL OFFICER MALAPPURAM-676 014.** - **4 THE ASSISTANT EDUCATIONAL OFFICER KIZHISSERY-673 641, MALAPPURAM DISTRICT.** - **5 THE MANAGER, VIDYAPOSHINI AIDED UPPER PRIMARY SCHOOL, VIALYIL P.O., PARAPPUR, MALAPPURAM DISTRICT-673 652.** **BY ADVS.** **SRI.O.C.LAIJU** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 1022/14 2 ## **JUDGMENT** The petitioner says that he was initially appointed as an Upper Primary School Teacher, with effect from 01.11.2006, in an anticipated additional post, since he had a vested right under Rule 51B Chapter XIVA of the Kerala Education Rules (KER for short), consequent to the death of his wife K.Suharabi - who unfortunately died while working as a UPSA in 'Vidyaposhini Aided Upper Primary School', Malappuram. 2. The petitioner says that, however, this additional post had not been sanctioned and consequently, that his appointment was denied approval due to the ban ordered by the Government at the relevant time and that, therefore, he was working without approval ever since 01.11.2006. He says that he, therefore, requested the 5th respondent-Manager to post him as a Junior Arabic Teacher, which vacancy arose due to the retirement WPC 1022/14 3 of a Teacher by name Sri.Veerankutty on 31.03.2010 and that accordingly, he was shifted to the said post with effect from 01.06.2010. The petitioner has produced Ext.P1 in substantiation of this assertion. 3. The petitioner, thereafter, says that after he was so appointed through Ext.P1, he commenced work as a Junior Arabic Teacher and that the proposal for approval was also forwarded to the 4th respondent-Assistant Educational Officer (AEO), who, however, denied the same saying that since the Manager had not executed a bond as per the terms of GO(P)No.10/10/G.Edn, dated 12.01.2010, only a protected teacher could have been appointed and that his accommodation in the post was illegal. He says that the Manager, thereafter, submitted an appeal before the 3rd respondent-District Educational Officer (DEO), Malappuram, which was also rejected on the same ground and therefore, that he was constrained to WPC 1022/14 4 move the Government through a Revision under Rule 92 Chapter XIVA of the KER, which has now led to Ext.P4 order, wherein, same stand has been reiterated and his approval rejected, but without citing any reason for the same. 4. The petitioner says that in the meanwhile, the Government brought out a 'Teachers' Package' through G.O.(P)199/2011/G.Edn. dated 01.10.2011 and that he was accordingly, approved with effect from 01.06.2011; and thus prays that the competent Authorities be directed to grant him approval from the date of his initial appointment, namely 01.11.2006, till 31.05.2011 and consequently that Ext.P4 be quashed. 5. I have heard Sri.Mohamed Jameel - learned counsel for the petitioner and Sri.P.M.Manoj - learned Senior Government Pleader for the official respondents. 6. Sri.P.M.Manoj – learned Senior Government Pleader, submitted that a counter affidavit has WPC 1022/14 5 been filed on behalf of the 2nd respondent, wherein, the details of the petitioner's appointment have been furnished. He submitted that since the Manager of the school did not choose to execute a bond as per GO(P)No.10/10/G.Edn, dated 12.01.2010, the educational Authorities had no other option but to reject the approval of the petitioner. He then added that, since there were protected teachers available for deployment in the educational district concerned at the relevant time, the Manager was fully obligated to appoint one among them and not to have appointed the petitioner. He, therefore, prayed that this Writ Petition be dismissed. 7. In reply, Sri.Mohamed Jameel submitted that even if the rigour of GO(P)No.10/10/G.Edn. dated 12.01.2010 should apply to this case, his client is entitled to relief because, through **Nadheera v State** (KLT 2011(3) 790) and **Moosakutty v. District Educational Officer** (KLT 2009(3) 863), WPC 1022/14 6 the law has been well declared that unless the Educational Authorities forward a list of protected teachers to the Manager, no legal obligation can be cast upon him to appoint one such to the available vacancy. He asserted that in this particular case, no such list had been forwarded to the Manager and that this is crystally clear from the counter affidavit filed by the 2nd respondent; and thus reiteratingly prayed that this Writ Petition be allowed. 8. I have given very anxious consideration to the afore submissions and have also examined the documents placed on record by the parties. 9. The counter affidavit of the 2nd respondent certainly says that the Manager was obligated to appoint a protected teacher, but that he did not do so, while appointing the petitioner. However, as rightly stated by Sri.Mohamed Jameel, the counter affidavit is completely silent as to if any such list of protected teachers had been WPC 1022/14 7 forwarded to the Manager by the educational Authorities at any point of time. Since this aspect is silent in the counter pleadings, it can only be assumed that no such list had been forwarded to the Manager. Obviously, therefore, the rigour of **Nadheera** (supra) and **Moosakutty** (supra) would apply in its full force and would come to the aid of the petitioner. 10. That said, it is also now well settled that if the Manager does not execute a bond in terms of GO(P)No.10/10/G.Edn. dated 12.01.2010, then the Educational Authorities are enjoined to presume that he has done so and for that reason the petitioner's approval cannot be held up. This has also been well settled by this Court through various judgments. In the afore circumstances, I allow this Writ Petition and set aside Ext.P4 order of the Government; with a consequential direction to its competent Authority to reconsider the Revision of WPC 1022/14 8 the petitioner dated 13.06.2012, after affording him, as also the Manager, an opportunity of being heard – either physically or through video conferencing – thus culminating in an appropriate order thereon as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. **Sd/-** **RR** **DEVAN RAMACHANDRAN JUDGE** WPC 1022/14 9 ## APPENDIX OF WP(C) 1022/2014 PETITIONER EXHIBITS EXHIBIT P1.TRUE COPY OF THE PETTIIONER'S APPOINTMENT ORDER DATED 1/6/2010. EXHIBIT P2.TRUE COPY OF THE ORDER PASSED BY THE ASSISTANT EDUCATIONAL OFFICER, KIZHISSERRY DATED 11/1/2011. EXHIBIT P3.TRUE COPY OF THE ORDER PASSED BY THE DISTRICT EDUCATIONAL OFFICER,MALAPPURAM DATED 7/4/2011.` EXHIBIT P4.TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 27/3/2013. EXHIBIT P5.TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 28/4/2012.