Geo Joseph v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936** ## **WP(C).No. 30134 of 2013 (N)** **----------------------------** ## **PETITIONER :** **--------------------------** **GEO JOSEPH, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), ST.SEBASTIAN'S HIGH SCHOOL, MEMADANGU P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** **BY SRI.K.JAJU BABU,SENIOR ADVOCATE ADVS. SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHI, THIRUVANANTHAPURAM-695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM-682 030.** **4. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA-686 673.** **5. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.P.M.SANEER R5 BY ADV. SRI.V.M.KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 30134 of 2013 (N) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1: COPY OF THE ORDER NO.B1/2924/08/K DIS. DATED 26.5.2008 ISSUED BY THE 4TH RESPONDENT.** - **P2: COPY OF THE ORDER NO.B1/3647/08/K.DIS., DATED 11.2.2009 ISSUED BY THE 4TH RESPONDENT.** - **P3: COPY OF THE ORDER NO.B4-16399/09/K.DIS., DATED 8.9.2009 ISSUED BY THE 3RD RESPONDENT.** - **P4: COPY OF THE ORDER EC3/29692/2010/DPI/K.DIS., DATED 10.5.2010 ISSUED BY THE 2ND RESPONDENT.** - **P5: COPY OF THE ORDER NO.40867/A1/10/G.EDN., DATED 26.8.2010 ISSUED BY THE 1ST RESPONDENT.** - **P6: COPY OF THE ORDER NO.B1/5052/11/D.DIS. DATED 10.1.2012 ISSUED BY THE 4TH RESPONDENT.** - **P7: COPY OF THE REPLY LETTER NO.A1/3504/2012 DATED 24.07.2012 ISSUED BY THE 4TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.** - **P8: COPY OF THE REPRESENTATION DATED 31.7.2012 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS.** - **P9: COPY OF THE COMMUNICATION NO.28040/A1/2013/G.EDN. DATED 9.10.2013 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** ## **NIL** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN** , **J. --------------------------W.P.(C) No.30134 of 2013 -------------------------Dated this the 22[nd] day of May, 2014** ## **J U D G M E N T** The petitioner was appointed as HSA (Social Science) by the fifth respondent Corporate Manager in a leave vacancy during the period from 4.2.2005 to 31.3.2005. That appointment which was made in St.Mary's H.S. Arakuzha, was approved by the District Educational Officer Muvattupuzha by Ext.P1 order dated 26.5.2008. Shortly thereafter, a regular vacancy of HSA (Social Science) arose in SSHS, Memadangu on 1.6.2008 consequent on the retirement of the incumbent Smt.Merly Peter. In that vacancy, the fifth respondent Corporate Manager appointed the petitioner as HSA (Social Science). The District Educational Officer, within whose jurisdiction SSHS, Memadangu is situate, declined to approve the said appointment by Ext.P2 order dated 11.2.2009 on the short ground that the Corporate Manager has not appointed even one protected teacher in SSHS, Memadangu, which is a new school. 2. Aggrieved by Ext.P2 order, the Corporate Manager filed an **W.P.(C)No.30134 of 2013** **2** appeal before the Deputy Director of Education, Ernakulam. By Ext.P3 order passed on 8.9.2009, the appellate authority dismissed the appeal. The Manager carried the matter in revision to the Director of Public Instruction, who by Ext.P4 order passed on 10.5.2010 rejected the revision petition. The revision petition filed before the Government was also rejected. The Government thereafter issued G.O.(P).No.199/2011/G.Edn. dated 1.10.2011 laying down the conditions subject to which appointments of teachers named in the appendix thereto will be approved from that academic year onwards. Thereupon, the District Educational Officer, Muvattupuzha approved the petitioner's appointment as HSA (Social Science) in SSHS Memadangu with effect from 1.6.2011. Shortly thereafter, the petitioner applied under the Right to Information Act, 2005 to the Public Information Officer, Office of the District Educational Officer, Muvattupuzha and got information regarding the number of protected hands who were available for deployment in aided schools as on 2.6.2008. The Public Information Officer in the Office of the District Educational Officer, Muvattupuzha thereupon furnished Ext.P7 reply dated 24.7.2012 to the effect that as on 2.6.2008 in Muvattupuzha Educational District, there was no **W.P.(C)No.30134 of 2013** **3** protected HSA (Social Science). Relying on that letter, the petitioner moved the Government by filing Ext.P8 representation and sought approval of her appointment as HSA (Social Science) with effect from 2.6.2008 onwards. The Government declined that request and communicated the decision to the petitioner by Ext.P9 letter dated 9.10.2013. The Government have in Ext.P9 stated that it has not so far taken a decision regarding approval of service prior to 1.6.2011 of teachers whose appointments were approved with effect from 1.6.2011 in the light of G.O.(P).No.199/2011/G.Edn. dated 1.10.2011 and therefore, the petitioner's request is declined. Ext.P9 is under challenge in this writ petition wherein the petitioner seeks the following reliefs: _“i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext-P1 to Ext-P4, Ext P6 and Ext P9 and quash the same to the extent they deny approval of appointment of the petitioner with effect from 2-6-2008._ _ii) declare that the petitioner is entitled for approval of appointment as High School Assistant (Social Studies) as per Ext.P6 with effect from 2-6-2008 with all consequential benefits._ _iii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the 4th respondent to approve the appointment of the petitioner as HSA (Social Studies) as per Ext.P6 with effect from 2-62008 and disburse all consequential benefits_ **W.P.(C)No.30134 of 2013** **4** _including arrears of salary.”_ 3. The principal contention raised in the instant writ petition is that as no protected HSA (Social Science) was available for deployment in Muvattupuzha Educational District as on 2.6.2008, the respondents erred in declining to approve the petitioner's appointment. Reliance is placed on the decision of a learned single Judge in **Nadeera v. State of Kerala** [2011 (3) KLT 790] which was affirmed by the Division Bench in **State of Kerala v. Nadeera** [2013 (2) KLT 88]. 4. I heard Sri.Brijesh Mohan, learned counsel appearing for the petitioner, Sri.P.M.Saneer, learned Government Pleader appearing for the State of Kerala and Sri.V.M.Kurian, learned standing counsel appearing for the fifth respondent. Exts.P2, P3, P4 and P5 orders disclose that the petitioner's appointment as HSA (Social Science) with effect from 2.6.2008 in SSHS Memadangu was declined on the short ground that the school being a new school, the Manager ought to have appointed a protected teacher in the school. It is evident from Ext.P7 letter issued by the Public Information Officer, Office of the District Educational Officer, Muvattupuzha that as on 2.6.2008 there was no protected HSA **W.P.(C)No.30134 of 2013** **5** (Social Science) awaiting appointment in Muvattupuzha Educational District. In the light of the said fact, which is not in dispute, applying the principles laid down by this Court in **Nadeera v. State of Kerala** [supra] which was affirmed by the Division Bench in **State of Kerala v. Nadeera** [supra], it has to be necessarily held that the orders passed by the respondents declining to approve the petitioner's appointment as HSA (Social Science) with effect from 2.6.2008 was not in order. The Government ought to have in that view of the matter favourably considered the petitioner's request in Ext.P8 and issued orders directing the District Educational Officer to approve the petitioner's appointment as HSA (Social Science) with effect from 2.6.2008 instead of taking up the technical plea that the petitioner's appointment was approved applying G.O.(P). No.199/2011/G.Edn. dated 1.10.2011. I accordingly hold that the petitioner is entitled to succeed. For the reasons stated above, I allow the writ petition, set aside Ext.P9 and direct the District Educational Officer, Muvattupuzha to approve the petitioner's appointment as HSA (Social Science) in SSHS Memadangu with effect from 2.6.2008. Needless to say, the petitioner will be entitled to all consequential **6** ## **W.P.(C)No.30134 of 2013** service benefits including salary and allowances and seniority. Orders approving the appointment shall be issued within one month from the date on which the petitioner produces a copy of this judgment before the District Educational Officer. Monetary benefits shall be disbursed within two months thereafter. Sd/- **P.N.RAVINDRAN JUDGE** ## **vps/vpv**