Geetha G. Nair and A. Jaseena v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933 WP(C).No. 20331 of 2009 (J) --------------------------------- PETITIONERS: - ---------------- 1. GEETHA G.NAIR, W/O.P.S.DILEESH KUMAR, AGED 31 YEARS, LOWER PRIMARY SCHOOL ASSISTANT HAYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, ALAPPUZHA DISTRICT-5. 2. A.JASEENA, AGED 29 YEARS, W/O.MOHAMMED ASHRAF, 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. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, AMBALAPPUZHA, ALAPPUZHA DISTRICT. 5. THE MANAGER, HAYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, ALAPPUZHA DISTRICT-5. BY GOVERNMENT PLEADER SMT.SUNITHA VINOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.20331/2009 ## A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER OF APPOINTMENT OF 1ST PETITIONER DTD.3.6.04. EXT. P2 : COPY OF -DO- OF THE 2ND PETITIONER DTD.2.6.04. EXT. P3 : COPY OF NOTICE No.D/4269/08 OF Assistant Educational Officer DTD.29.10.08. EXT. P4 : COPY OF G.O.(Rt) 3776/06/G.EDN OF GOVT. DTD.24.8.06. EXT. P5 : COPY OF CIRCULAR No.74101/J2/04/G.EDN OF GOVT. DTD.24.1.05. EXT. P6 : COPY OF ORDER No.A4/3269/09 OF DEPUTY DIRECTOR OF EDUCATION ALONG WITH LIST DTD.14.5.09. EXT. P7 : COPY OF LETTER OF MANAGER DTD.1.7.09. EXT. P8 : COPY OF JUDGMENT OF THIS COURT IN WP(C) 2563/08-E DTD.24.9.08. EXT. P9 : COPY OF -DO- WP(C)8039/08 DTD.1.6.09. EXT. P10 : COPY OF DECISION REPORTED IN 2009(2) KLT 402 DTD.1.4.09. EXT. P11 : COPY OF G.O.(Rt) 3805/06/G.EDN OF GOVT. DTD.26.8.06. EXT. P12 : COPY OF G.O.(Rt) 3587/08/G.EDN OF GOVT. DTD.5.8.08. EXT. P13 : COPY OF ORDER No.EM6/53315/07/DPI/K.DIS OF R2 DTD.12.11.07. EXT. P14 : COPY OF ORDER No.F3/67649/08/K.DIS OF R2 DTD.11.2.09. EXT. P15 : COPY OF JUDGMENT OF THIS COURT IN O.P.5258/03 DTD.10.11.06. EXT. P16 : COPY OF DECISION REPORTED IN 1993(2) KLT S.N. PAGE 27, CASE No.28 DTD.2.8.93. EXT.P17 : COPY OF JUDGMENT IN WP(C) 564/09-P DTD.22.9.11. OF THIS COURT DTD.12.2.12. WP(C).No.20331/2009 ## 4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF LIST OF PROTECTED TEACHERS ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **---------------------------------------** **W.P.(C) No.20331 OF 2009 --------------------------------------Dated this the 5[th] day of March, 2012.** ## **J U D G M E N T** Both the petitioners are seeking for approval of their appointments with effect from 03.06.2004 and 02.06.2004 respectively as Lower Primary School Assistants. The main objection raised against their approval was that the Manager has not absorbed a protected hand. It is stated that the Government as per G.O.(P) No.46/2006/G.Edn dated 01.02.2006 directed the Departmental Officers to approve the appointment of the petitioners from 01.02.2006 on condition that the Manager would maintain at least one protected teacher continuously. Accordingly, the appointments were approved by the Assistant Educational Officer as per Exts.P1 and P2. 2. The petitioners' case is that after the school was upgraded as Upper Primary School in the year 1982, the Manager had agreed to appoint a protected teacher. The petitioners' appointments were approved by the Assistant Educational Officer, **W.P.(C) No.20331/2009** **2** Ambalappuzha only as per Exts.P1 and P2. It appears that the approval granted was objected by the Government which fact is clear from Ext.P3 and their salary was withheld from 10/2008. While admitting the writ petition, this Court directed disbursement of salary including the withheld portion from October 2008 upto June 2009, subject to further orders to be passed in the Writ Petition. 3. The respondents have filed separate counter affidavits. The only point to be decided is whether the postponement of approval of appointments upto 01.02.2006 is justified. Learned counsel for the petitioners submitted that in the light of the decision of this Court in _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790), the petitioners are entitled for approval from the date of appointments since there were established vacancies, which is not disputed. 4. The plea raised in the counter affidavit filed by the 2[nd] respondent and in the statement filed by the 4[th] respondent is that the school is a newly upgraded one and therefore, the Manager had to comply with the obligation to appoint a protected hand. The Manager actually appointed a protected hand in the **W.P.(C) No.20331/2009** **3** vacancy which arose on 01.04.2009 and the protected teacher joined duty on 01.07.2009, and hence the petitioners' salary has been released from 01.07.2009. It is also clear from paragraph 3 of the statement filed by the 4[th] respondent that the Manager had earlier appointed a protected hand on 04.10.1980 and the said teacher had retired from service on 31.03.1996. Ext.R4(a) is said to be the list of protected teachers maintained by the office of the Deputy Director of Education. But, in the statement, there is no plea that in terms of various Government Orders, the list was communicated to the Manager for absorbing a protected hand. 5. In the counter affidavit filed by the 2[nd] respondent, it is averred that the condition for absorption of a protected teacher is equally applicable to newly opened and newly upgraded schools, that the Deputy Director of Education is the authority to collect and keep the name of protected teachers of a Revenue District and the 4[th] respondent was bound to observe the agreement executed by him at the time of filing application for upgradation of school. 6. Therefore, evidently, the respondents maintain that the Manager has not complied with the obligation under the **W.P.(C) No.20331/2009** **4** agreement to absorb a protected teacher. In fact, the Manager had appointed a protected hand in terms of Rule 6(viii) of Chapter V of Kerala Education Rules and the said protected teacher retired from service in 1996. Thereafter the Manager appointed a protected hand in 2009. 7. The crucial question is whether there is communication of list of protected teachers in terms of various Government Orders to the Manager. Regarding this aspect, in _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790), this Court held in paragraph 20 as follows: “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 **W.P.(C) No.20331/2009** **5** 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”. 8. This Court has taken the said view based on the principles stated in the judgments discussed therein that unless a list of protected teachers was communicated to the Manager and there is a failure on the part of the Manager to accommodate a protected hand, the Manager cannot be found fault with for not appointing a protected hand. There is no averment in the counter affidavit that as on the dates of appointment of the petitioners, protected hands were available for deployment in the Educational Sub District, since it is a L.P. School. There is no averment that during the crucial period, such a list was communicated to the **W.P.(C) No.20331/2009** **6** Manager. In the absence of the same, the petitioners' pleas are squarely covered in their favour by the judgment of this Court in _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790). Ext.P3 cannot therefore be sustained. It was actually issued, when the Government issued a show cause notice to the Assistant Educational Officer. They were allowed to draw salary from 1.7.2009, after the protected teacher joined duty. But in the light of the judgment in Nadeera's case(supra), they are entitled for approval from their dates of appointment itself. In that view of the matter, Ext.P3 is quashed. This writ petition is allowed. The petitioners are entitled for approval from 03.06.2004 and 02.06.2004 respectively and appropriate modified orders will be passed by the 4[th] respondent approving their appointments from 03.06.2004 and 02.06.2004 and they will be granted consequential benefits also, within a period of three months from the date of receipt of a copy of this judgment. No costs. smp ## Sd/- **T.R. RAMACHANDRAN NAIR JUDGE**