Girish Kumar S.G. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 37887 of 2008(I) ------------------------------- PETITIONER: - -------------- GIRISH KUMAR S.G., H.S.A (MATHEMATICS), SNT H.S.S. CHELLANNUR, KANNANKARA P.O., KOZHIKODE DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC ISNTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EUDCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 5. THE MANAGER, SN TRUSTS, KOLLAM, KOLLAM DISTRICT. BY ADV. SRI.A.N.RAJAN BABU, SC, S.N.TRUST FOR R5 SMT. M.T. SHEEBA, GOVERNMENT PLEADER FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, ALONG WITH WP(C) No.10199 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.37887/2008 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O.(P) 147/03/G.EDN DTD. 5.6.03. EXT. P2 : COPY OF APPOINTMENT ORDER PERTAINING TO PETITIONER TOGETHER WITH ENDORSEMENT DTD. 5.12.04 ISSUED BY THE District Educational Officer. EXT. P3 : COPY OF ORDER DTD. 25.11.06. EXT. P4 : COPY OF ORDER DTD. 3.11.03 ISSUED BY THE Deputy Director of Education. EXT. P5 : COPY OF JUDGMENT DTD. 2.7.07 IN WP(C) 792/07. EXT. P6 : COPY OF JUDGMENT DTD. 7.8.07 IN R.P.734/07. EXT. P7 : COPY OF APPEAL FILED B Y PETITIONER BEFORE Director of Public Instruction. EXT. P8 : COPY OF ORDER DTD. 19.10.07 PASSED BY Director of Public Instruction. EXT. P9 : COPY OF REVISION PETITION FILED BY PETITIONER BEFORE GOVT. EXT. P10 : COPY OF JUDGMENT DTD. 28.1.08 IN WP(C) 3245/08. EXT. P11 : COPY OF G.O.(Rt) 3691/08 DTD. 11.8.08. EXT. P12 : COPY OF G.O.(P) 178/02/DTD. 28.6.02. EXT. P13 : COPY OF G.O.(P) 46/06 DTD. 1.2.06. EXT. P14 : COPY OF G.O.(Ms) 19/09 DTD. 9.2.09. EXT. P15 : COPY OF ORDER DTD. 21.8.09 IN WP(C) 10199/09. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **---------------------------------------** **W.P.(C) Nos.37887 OF 2008, 10199 & 29689 OF 2009 & 1288 OF 2010** **--------------------------------------Dated this the 27[th] day of October, 2011.** ## **J U D G M E N T** All these writ petitions concern a common question regarding the orders passed by the educational authorities and the Government whereby the approval of appointments of the petitioners have been interfered with on the ground that it was obligatory on the part of the Manager to appoint only protected hands in all existing/arising vacancies including leave vacancies. 2. In W.P.(C) No.37887/2008, the petitioner was appointed as H.S.A (Mathematics) in the SNT H.S.S, Chelannur in Kozhikode District. In W.P.(C) No.10199/2009, the petitioner was appointed as H.S.A (Physical Science), in W.P.(C) No.29689/2009, the petitioner was appointed as H.S.A (Hindi) and in W.P.(C) No.1288/2010, the petitioner was appointed as H.S.A (Maths), all in the same school itself. I am referring to the exhibits as produced in W.P.(C) No.10199/2009. **W.P.(C) Nos.37887/08 & conn. cases.** **2** 3. The common case of the petitioners is that the school was granted sanction after the delinking of pre-degree classes. A copy of the said order has been produced as Ext.P1 in W.P.(C) No.10199/2009. The school in question is serial No.5 therein which is in Kozhikode District. The petitioners have produced the staff fixation orders for the respective years to show that the required posts were sanctioned by the educational officers concerned. The appointments of the petitioners have been approved based on the proposal submitted by the Manager and the dates on which the approval has been granted are evident from the said orders also. Ext.P2 produced along with W.P.(C) No.10199/2009 is the proceedings of the Deputy Director of Education, Kozhikode dated 03.11.2004 whereby one protected High School Assistant in Malayalam namely, Smt.P.S.Mini has been deployed to the school. The said teacher was accordingly appointed by the Manager in the above post. It appears that audit objections were raised later with regard to the approval granted to the petitioners' appointment and by Ext.P5 therein the District Educational Officer informed the Headmaster about the **W.P.(C) Nos.37887/08 & conn. cases.** **3** audit objection raised with a further direction to withhold salary of them. They filed W.P.(C) No.792/2007 challenging the orders, and as directed therein, they approached the Director of Public Instruction, by filing representations. 4. After hearing the parties, the Director of Public Instruction passed Ext.P6 order taking the view that all the appointments should have been made by deploying protected teachers. There is a further direction to quantify the salary paid to the petitioners and to realize the same from the Manager. In the revision petition filed by the petitioners, the Government concurred with the same in Ext.P10. 5. Heard the learned counsel for the petitioners, learned counsel appearing for the Manager and the learned Government Pleader. 6. The very premise under which the Government has passed Ext.P10 order produced in W.P.(C) No.10199/2009 is by relying upon G.O.(P) No.178/2002/G.Edn dated 28.06.2002. Therein, as far as filling up of vacancies in the newly sanctioned schools are concerned, the method provided is to fill up the same **4** **W.P.(C) Nos.37887/08 & conn. cases.** by appointing protected hands. Therefore, the Government insists that appointment of the petitioners and the approval granted to the same by the educational officers cannot be supported. 7. In the counter affidavit filed by the 3[rd] respondent in W.P.(C)No.10199/2009, G.O.(MS)No.19/2009/G.Edn dated 09.02.2009 has been produced as Ext.R3(a) wherein the provisions of G.O.(P) No.178/2002/G.Edn dated 28.06.2002 have been relaxed and various new conditions have been provided. The condition No.1 therein is that at least one protected teacher should be appointed in the school which was sanctioned pursuant to the delinking of pre-degree courses and when the said protected hand is redeployed to the parent school, in the said vacancy another protected teacher should be appointed. Condition No.3 therein is that the appointment of such teachers should be approved with effect from 01.02.2006 or from the date of appointment of teacher which ever is later. 8. Learned counsel for the petitioners pointed out that as far as the obligation of the Manager to appoint protected teachers **W.P.(C) Nos.37887/08 & conn. cases.** **5** is concerned, it is clear from the order sanctioning the school that various provisions of Kerala Education Rules have been relaxed. Apart from that, it is vehemently contended that the Deputy Director of Education has deployed only one protected hand namely Smt.Mini as H.S.A (Malayalam) and in core subjects and in other language, protected hands were not available in Kozhikode District and therefore, the Manager cannot be compelled to wait till protected hands are available on a future date, since the school has been sanctioned for the year 20032004 itself. 9. Reliance is placed on the decision of this Court in _**Moosakutty** vs._ _**D.E.O., Wandoor**_ (2009 (3) KLT 863). Apart from that, the learned counsel for the petitioners also relied upon the decision of this Court in _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790). 10. Learned Government Pleader submitted that as far as G.O.(P) No.178/2002/G.Edn dated 28.06.2002 is concerned, the obligation of the Manager is to fill up all the vacancies by protected hands, the school being a new school. It is further **W.P.(C) Nos.37887/08 & conn. cases.** **6** pointed out that even though some of the conditions therein have been relaxed, by Ext.R3(a) Government Order, approval is restricted from 01.02.2006 and therefore, the petitioners could get approval only from that date. 11. As far as the appointments of protected hands are concerned, even going by the conditions in G.O.(P)No.178/2002/ G.Edn dated 28.06.2002, the educational officer concerned will have to communicate the list of protected teachers to the Manager. In the counter affidavit filed by the Manager in W.P.(C) No.10199/2009, in paragraph 5, it is stated that the only protected hand who was deployed to the school is Smt.Mini as per Ext.P2 order therein. In the counter affidavit filed on behalf of the 3[rd] respondent also, significantly, there is no averment that protected teachers were available in core subjects and in Hindi or that the Manager was required to absorb any protected teachers in those subjects as well as H.S.A (Hindi). There is no finding in Ext.P10 order in that regard. The obligation of the Manager can be enforced only if any protected teacher is available in the District or Sub District concerned. This legal position has been **W.P.(C) Nos.37887/08 & conn. cases.** **7** settled by the decision of this Court in _Moosakutty's_ case (2009 (3) KLT 863). Therein, in, paragraphs 6, 8 and 9, it was held as follows: “Going by R.6(viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-District in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such is confined to the prescriptions of the said paragraph. Under R.9 of Chap.III the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “in conformity with the provisions of the Act and the Rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the Aided Primary School in Wandoor Educational Sub-District. This is in terms of sub-r.(viii) of R.6 of Chap.V, K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.III, K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P) No.83/88/G.Edn., dated 18.04.1988. An executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of **W.P.(C) Nos.37887/08 & conn. cases.** **8** the executive order, by appropriate means, the same cannot be sought to be enforced”. 12. The above judgment has become final since the Writ Appeal filed against the same has been dismissed and the Special Leave Petition has also been dismissed. In _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790), this Court examined in detail the orders issued by the Government from G.O.(P)No.178/2002/ G.Edn dated 28.06.2002. One of the questions raised therein was whether the Manager could be found fault with for not appointing protected hands in the absence of communication of the list of protected teachers by the Deputy Director of Education/Assistant Educational Officer/District Educational Officer as the case may be. 13. Reliance was placed therein on various judgments of this Court and it was held by this Court that unless the list of protected teachers is communicated, the Manager cannot be found fault with for not appointing a protected hand. 14. Herein, evidently, only one H.S.A (Malayalam) was deployed to the school for absorption as protected hand. There is no evidence to show that any other list of protected teachers was **W.P.(C) Nos.37887/08 & conn. cases.** **9** communicated by the Deputy Director of Education. Apart from that, there is no evidence to show that other protected hands were available in different subjects also. Therefore, the petitioners' pleas are squarely covered by the judgments in _Moosakutty's_ case as well as _Nadeera's_ case (supra). In that view of the matter, these writ petitions are allowed. The impugned orders in all the writ petitions which are the same are quashed. Based on the interim orders passed by this Court, the petitioners have been receiving salary from various dates subsequent to the filing of these writ petitions. In the light of the fact that approval orders have to be treated as valid, there will be a declaration to that effect. There will be a direction to the Educational Officer concerned to release the withheld amount salary of the petitioners for the period during which they were granted approval and appropriate steps will be taken for disbursing arrears within a period of two months from the date of receipt of a copy of this judgment. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp