Jamsheed M. v State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` WEDNESDAY, THE 15[TH]DAY OF DECEMBER 2021 / 24TH AGRAHAYANA,1943 ``` ``` WP(C) NO. 20510 OF 2019 ``` ## **`PETITIONER/S:`** ``` JAMSHEED M. AGED 34 YEARS SON OF MOOSA, FULL TIME MENIAL, MARKAZUL ULOOM HIGHER SECONDARY SCHOOL, OORAKAM, O.K.MURI P.O., TIRURANGADI, MALAPPURAM DISTRICT-676519. ``` ``` BY ADVS. V.A.MUHAMMED SRI.M.SAJJAD ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA 1 REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE -II, THIRUVANANTHAPURAM-695001. THE DIRECTOR GENERAL OF EDUCATION, 2 JAGATHY, THIRUVANANTHAPURAM-695014. THE DEPUTY DIRECTOR OF EDUCATION, 3 DOWN HILL, MALAPPURAM-676519. ``` W.P.(C).No. 20510 of 2019 2 ``` THE DISTRICT EDUCATIONAL OFFICER, 4 TIRURANGADI, MALAPPURAM DISTRICT. ``` ``` THE MANAGER, 5 MARKAZUL ULOOM HIGHER SECONDARY SCHOOL, OORAKAM, O.K.MURI P.O., TIRURANGADI, MALAPPURAM DISTRICT-676519. THE HEADMASTER, 6 MARKAZUL ULOOM HIGHER SECONDARY SCHOOL, OORAKAM, O.K.MURI P.O., TIRURANGADI, MALAPPURAM DISTRICT-676519. ``` ``` BY SMT NISHA BOSE, SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).No. 20510 of 2019 3 ## **JUDGMENT** The petitioner states that he is presently working as a Full-Time Menial in the Markazul Uloom Higher Secondary School, Oorakam under the Management of 5th respondent against a leave vacancy from 05.01.2004 to 16.09.2008, from 17.09.2008 to 16.09.2013 and from 20.06.2013 to 19.06.2018 as per Exts.P1 to P3 orders. Though the appointment was initially rejected by the DEO, later by Ext.P8 order, the Government has ordered to approve the appointment on a daily wage basis with effect from 09.08.2007 as per Ext.P8 Government letter. Consequently, Ext.P9 order was issued by the DEO. Petitioner contends that thereafter as per Ext.P10 letter, the Government has ordered the appointment of the petitioner with effect from 09.08.2007 on a scale of pay basis. 2. The grievance of the petitioner concerns the non-approval of the appointment for the period from 05.01.2004 to 09.08.2007. The petitioner contends that the only reason for the non-approval of the appointment of the petitioner is that protected non-teaching staff had to be appointed against the vacancy. 3. The petitioner contends that there was no undeployed protected W.P.(C).No. 20510 of 2019 4 non-teaching staff available in the educational District. According to the petitioner, in the light of the law laid down by this Court in Exts.P11 to P13 judgments interpreting G.O.(P) No.178/02/G.Edn. dated 28.06.2002, the Manager cannot be found fault with when no list was forwarded to the manager by the DDE giving the list of protected non-teaching staff. The petitioner would further contend that this Court in the above judgments have also held that relevant Government Orders which provide for deploying protected teachers in the vacancies have no application in the matter of appointing non-teaching staff. 4. It is in the above factual backdrop that the petitioner is before this Court seeking to quash Exts.P4, P5, P6, P7, P8, P9 and P10 and also for a declaration that the petitioner is entitled to get approval from 05.01.2004 to 05.08.2007 on a scale of pay basis. 5. I have heard Sri.M Sajjad, the learned counsel appearing for the petitioner and the learned Senior Government Pleader. 6. I find that this Court had occasion to consider the very same issues raised by the petitioner in Exhibits P11 to P14 judgements. After considering the earlier precedents, it was held that G.O.(P) No.178/02/G.Edn. dated 28.06.2002 is not applicable to non-teaching staff. In view of the above, one of the reasons for not granting approval cannot be sustained. W.P.(C).No. 20510 of 2019 5 7. The next question is whether the manager could be found fault with when the list of protected non-teaching staff was not forwarded by the DDE to the Manager. In **Nadeera v State of Kerala** (2011 (3) KLT 790)this Court after considering the earlier judgments have laid the legal position as under: 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 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. In the case on hand, there is no case for the respondents that a W.P.(C).No. 20510 of 2019 6 list of protected non-teaching staff was forwarded to the manager. The principles laid down in **Nadeera** (supra) will squarely apply. Resultantly, the petitioner is entitled to succeed in this Writ petition. Exts P4 to P10 will stand quashed. It is declared that the petitioner is entitled to approval of appointment as FTM from 5.1.2004 to 9.8.2007 on a scale of pay basis. This writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** avs W.P.(C).No. 20510 of 2019 7 ## `PETITIONER'S EXHIBITS` ``` EXHIBIT P1TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 05.01.2004. EXHIBIT P2TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 17.09.2008. EXHIBIT P3TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 20.06.2013. EXHIBIT P4TRUE COPY OF THE ORDER NO.B5/471/04/K.DIS. DATED 07.02.2004 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, TIRUR. EXHIBIT P5TRUE COPY OF THE ORDER NO.K.DIS.B4/8271/04 DATED 30.10.2004 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6TRUE COPY OF THE ORDER NO.K.DIS.B5/8874/08 DATED 22.01.2009 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, TIRUR. EXHIBIT P7TRUE COPY OF THE ORDER NO.K.DIS.B4/22750/09 DATED 05.11.2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P8TRUE COPY OF THE GOVERNMENT LETTER NO.21958/N1/2013/G.EDN. DATED 25.05.2013. ``` W.P.(C).No. 20510 of 2019 8 ``` EXHIBIT P9 ``` ``` TRUE COPY OF THE ORDER NO.K.DIS.B5/7189/2013 DATED 20.09.2013 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, TIRUR. ``` - `EXHIBIT P10 TRUE COPY OF THE GOVERNMENT LETTER NO.73571/N1/14/G.EDN. DATED 23.06.2016.` - `EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.15702/2011 DATED 04.04.2012.` - `EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.25864/2013 DATED 03.01.2014.` - `EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.3895/2010 DATED 23.01.2015.` ``` Exhibit P14TRUE COPY OF THE DECISION REPORTED IN 2013 (2) KHC 103 DECIDED 19.2.2013 ```