George M.J. & Others 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 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933 WPC.No. 12756 of 2011 (T) ------------------------- PETITIONER(S): ------------1. GEORGE M.J. & OTHERS LITTLE FLOWER HIGH SCHOOL, OONNUKAL RESIDING AT MANGATTUHOUSE, KADAVOOR P.O. MOOVATTUPUZHA, ERNAKULAM-686671. 2. THRESSIAMMA C.V., W/O.P.T.JOSEPH, LITTLE FLOWER HIGH SCHOOL, OONNUKAL RESIDING AT SANTHI NAGAR HOUSING COLONY, OLAMATTAM THODUPUZHA P.O., IDUKKI DISTRICT. 3. JULIE JOSE, W/O.JOSE MATHEW, LITTLE FLOWER HIGH SCHOOL, OONNUKAL RESIDING AT KIZHAKKEBHAGATHU HOUSE PAINGOTTOOR P.O., MOOVATTUPUZHA ERNAKULAM DISTRICT. 4. MINI MATHEW, W/O.ROY SEBASTIAN, LITTLE FLOWER HIGH SCHOOL, OONNUKAL RESIDING AT KOMBANATHOTTATHIL HOUSE NAGAPUZHA P.O., MOOVATTUPUZHA, ERNAKULAM. BY ADVS.SRI.B.MOHANLAL SRI.T.PRASAD RESPONDENT(S): -------------- 1. STATE OF KERALA AND OTHERS REP. BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-1. 2. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD P.O., ERNAKULAM-682030. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM, IDUKKI DISTRICT-686691. 4. THE MANAGER, CORPORATE EDUCATIONAL AGENCY DIOCESE OF THE KOTHAMANGALAM, BISHOP HOUSE KOTHAMANGALAM-686691. R1 TO R3 BY GOVERNMENT PLEADER SMT. BIJU MEENATTOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX EXT.P1-TRUE COPY OF APPOINTMENT ORDER DT.15.3.2005 EXT.P2-TRUE COPY OF JUDGMENT IN 12.10.2006 EXT.P3-TRUE COPY OF ORDER DT.13.3.2006 EXT.P4-TRUE COPY OF APPOINTMENT ORDER DT.9.3.2006 EXT.P5- DO. DATED 27.5.2010 EXT.P6-TRUE COPY OF APPELLATE ORDER DT.20.9.2007 EXT.P7- TRUE COPY OF APPOINTMENT ORDER DT.15.12.2004 EXT.P8- DO. ISSUED TO THE FIRST PETITIONER EXT.P9- DO. ISSUED TO SECOND PETITIONERs EXT.P10- DO. ISSUED TO THIRD PETITIONERs EXT.P11- DO. ISSUED TO 4TH PETITIONERs EXT.P12- DO. OF APPROVAL ORDER DATED 30.3.2011 TO FIRST PETITIONER EXT.P13- DO. DT.31.3.2011 ISSUED TO SECOND PETITIONER EXT.P14- DO. DO. ISSUED TO THIRD PETITIONERs EXT.P15- DO. DO. ISSUED TO 4TH PETITIONDT DT.30.3.2011 EXT.P16- TRUE COPY OF GO DATED 12.1.2010 EXT.P17-TRUE COPY OF GO DATED 26.2.2011 EXT.P18- TRUE COPY OF ORDER DT.4.2.1970 EXT.P19- TRUE COPY OF ORDER DT.3.4.1970 EXT.P20- TRUE COPY OF PERMANENT REGISTRATION DATED 27.12.1993 EXT.P21-TRUE COPY OF DECLARATION DT.23.7.2011 // TRUE COPY // P.S. TO JUDGE ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 12756 of 2011-T** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 6th day of February, 2012** ## **JUDGMENT** The petitioners are before this Court complaining about the non approval of their appointments made by the Manager recognising their rights as claimants under Rule 51A of Chapter XIV-A K.E.R. The respective orders refusing approval have been produced as Exts.P12 to P15. 2. Two objections have been taken with regard to the grant of approval: (a) that the Manager has not submitted a declaration regarding absorption of equal number of protected teachers, as per G.O.(P) No.10/10/G.Edn. dated 12.1.2010; and (b) that the vacancy against which the appointments are made, will have to be filled up with protected teachers, as per paragraphs 4 and 5 of the above Government Order. 3. The previous appointments of the petitioners are not under dispute. They were appointed in different types of vacancies and the respective orders granting approval have been produced as Exts.P1 and P3 to P7. The respective appointment orders are produced as Exts.P8 to P11. The first petitioner is appointed as UPSA in L.F. High School, Oonnukal from 1.6.2010 in the retirement vacancy of Smt. Pauleena John. The second WPC.12756/2011 2 petitioner is appointed in the vacancy of Smt. Jaya Baby who was transferred to another school in a retirement vacancy and the said appointment is also with effect from 1.6.2010. The third petitioner is appointed with effect from 1.7.2010 as UPSA in the vacancy occurred when Smt. Mary James was promoted and transferred to another school in the retirement vacancy of Smt. Aleykutty K.A. and the fourth petitioner is appointed with effect from 1.6.2010 in the vacancy of Smt. Mariat Paul who was transferred to another school. 4. Learned counsel for the petitioners submitted that being claimants under Rule 51A, the objection taken regarding the approval of appointments, cannot be accepted. It is pointed out that G.O.(P) No.10/10/G.Edn. dated 12.1.2010 provides for appointment of protected teachers in terms of the provisions therein, in vacancies arising due to sanction of additional post from the academic year 2006-2007 onwards. It is therefore submitted that the provisions under the said Government Order are not applicable as far as the approval of appointment of the petitioners are concerned, since the petitioners were not appointed in the additional division vacancies which were sanctioned after the issuance of the said Government Order. Apart from that, it is pointed out that the objection that protected teachers should be appointed, cannot be sustained since the U.P. WPC.12756/2011 3 section of the school was established prior to 2.5.1979 and in support of the same, Exts.P18 to P20 orders have been produced. 5. First I will deal with the contention regarding applicability of the Government Order dated 12.1.2010, a true copy of which has been produced as Ext.P16. The scope of the said Government Order is that the Government withdrew the restrictions regarding appointment in additional division vacancies from the academic year 2006-2007. In clause (i), it is provided that in Government and aided schools approval can be granted for appointments made from the academic year 2006-2007 onwards in the additional division vacancies. The respective Educational Officers have been directed to revise the staff fixation orders for the four academic years, viz. 2006-2007 to 2009-2010. Clause (v) is crucial here. It is stated therein that for approving the appointments made by the Managers in additional division vacancies from 2006-2007 to 2009-2010 the Managers will have to execute a declaration to the effect that from the academic year 2010-2011 onwards, in the new vacancies protected hands will be appointed equal to the number of persons appointed during 2006-2007 to 2009-2010. It is provided in clause (vii) that as far as new schools, i.e. schools started or upgraded after 1979 are concerned, appointments of protected teachers will be governed by various Government Orders , viz. WPC.12756/2011 4 G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 and G.O.(P) No.46/2006/G.Edn. dated 1.2.2006, etc. 7. The question herein is whether clause (v) mentioned above will apply as far as the petitioners are concerned. Herein, it can be seen that the petitioners are teachers eligible for protection under Rule 51A of Chapter XIV-A K.E.R. Evidently, Ext.P16 Government Order has not provided any clause for appointment of Rule 51A claimants. The fact that they are Rule 51A claimants, is admitted in paragraph 7 of the counter affidavit filed by the first respondent. It is stated in paragraph 8 of the counter affidavit that during 2008-2009 and 2009-2010 two additional divisions and additional posts were sanctioned to LFHS, Oonnukal in the light of G.O.(P) No.10/10/G.Edn. dated 12.1.2010 and hence the Manager is bound to execute an agreement on the basis of the said Government Order that he is ready to provide equal number of protected teachers as that of the additional posts created from 2006-2007 to 2009-2010 from the new vacancies arose from 2010-2011. 8. There is no plea that the Manager has made any appointment during the period 2008-2009 and 2009-2010 in any of the additional division vacancies. Therefore, normally that cannot go against the pleas of the petitioners. Apart from that, the petitioners being Rule 51A claimants, WPC.12756/2011 5 the rights of the petitioners will have to be adjudged in the light of the specific terms of Rule 51A of Chapter XIV-A K.E.R. Any executive order cannot go against the stipulations of the statutory rule which is a well settled legal position. As far as Rule 51A is concerned, the second proviso therein, even though provides for preference to protected teachers, Note 1A will show that the term 'protected teacher' therein will apply only to those under the same Educational Agency. In fact, this Court had occasion to consider the interpretation of the second proviso to Rule 51A read along with Note 1A, in the decision in **P.K. High School v. State of Kerala** (2011 (4) KLT 365). Therein, it was held as follows in paragraph 16: “In fact, Note 1A is very clear on this aspect. It provides for reappointment to protected teachers “available under the Educational Agency.” The meaning of the words “protected teacher” is given in the explanation. When the general scope and purport of Rule 51A is to confer preference for appointment in future vacancies in respect of teachers who have been relieved under different circumstances, under the same Educational Agency, it cannot be envisaged that the proviso as noted above, will apply to protected teachers of schools under other Educational Agencies, especially in the light of Note 1A. In the case of such protected teachers, the obligation of the Manager arises under Rule 6(viii) of Chapter V and various Government Orders have been issued further in that regard.” WPC.12756/2011 6 Therefore, the same will not go against the claims of the petitioners who are rightful claimants under Rule 51A of Chapter XIV-A K.E.R. The vacancies to which they have been appointed, are not additional division vacancies. 9. Then we will have to find out whether the plea that the unupgraded portion of the U.P. school was existing prior to 1979. The orders produced by the petitioners, viz. Exts.P18 to P20 throw light on this aspect. Ext.P18 is the order dated 4.2.1970 issued by the Regional Deputy Director of Public Instruction whereby sanction has been accorded to open standard X in the school (L.F.H.S.) during the year 1970-1971. Ext.P19 is the order passed by the District Educational Officer, Muvattupuzha implementing Ext.P18 order in respect of the school in question. Ext.P20 is the order granting permanent recognition to Standards V to IX to the school herein which is dated 27.12.1973 issued by the District Educational Officer, Muvattupuzha. Therefore, evidently Ext.P20 will show that the U.P. section of the school was existing prior to 1979 and permanent recognition was granted to the U.P. Section. If that be so, it can be seen that it cannot come within the definition of 'new school' for the purpose of Chapter V Rule 6(viii) as well as for the purpose of various executive orders issued from time to time and for the purpose of Ext.P16. Therefore, the petitioners WPC.12756/2011 7 are entitled to succeed on this ground also. 10. There is no evidence to show that the Manager has made any appointments in the additional division vacancies sanctioned for the years 2008-2009 and 2009-2010. If at all the Manager has made any appointment in those vacancies, the insistence for filing a declaration can be imposed whenever the Manager requests for approval of those appointments and that need not go against the grant of approval of the petitioners' appointment. I am not finally pronouncing on the said matter as it is not an issue arising for decision in the case. A reading of Exts.P12 to P15 orders will show that the appointment of the petitioners are not in additional division vacancies sanctioned for the respective years. 11. As the right of the petitioners is statutory, the executive orders providing for appointment of protected teachers cannot go against their claims. Apart from that, the judgment in **P.K. High School's case** (2011 (4) KLT 365) also will apply to the facts of this case. For all these reasons, I allow this writ petition. Exts.P12 to P15 orders are quashed. There will be a direction to the District Educational Officer to approve the appointments of the petitioners and pass appropriate orders within a period of six weeks from the date of receipt of a copy of this judgment. Consequent on the grant of approval, they will be entitled for the WPC.12756/2011 8 monetary benefits also. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**