K. Fibina v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** # **WP(C).No.29305 OF 2011(K)** ## **PETITIONER/S:** **K. FIBINA, AGED 22 YEARS, WIFE OF ASKERMON, LOWER PRIMARY SCHOOL ASSISTANT,, A.M.L.P. SCHOOL, P.O.PULLODE,, VADAPPURAM, MAMPAD, MALAPPURAM DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SRI. K.E. HAMSA** ## **RESPONDENT/S:** **1 THE STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1.** **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-14. 3 THE DEPUTY DIRECTOR OF EDUCATION, DOWN HILL, MALAPPURAM - 679 518. 4 THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM DISTRICT-679 328. 5 THE ASSISTANT EDUCATIONAL OFFICER, NILAMBUR, MALAPPURAM DISTRICT-679 329. 6 THE MANAGER, A.M.L.P. SCHOOL, P.O.PULLODE, VADAPPURAM, MAMPAD, MALAPPURAM DISTRICT, PIN-676 542. R1 TO R5 BY SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-10-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.29305 of 2011** **2** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Exts.P2 to P4 orders passed by the educational authorities, declining approval of appointment of the petitioner as Lower Primary School Assistant (L.P.S.A) in A.M.L.P School, Pullode, Malappuram District from 01.06.2009 onwards, on the ground that the school has appointed a protected teacher only on 09.03.2011, by virtue of Government Notification No.46/06/G. Edn. dated 01.02.2006. 2. Case projected by the petitioner is that, petitioner was appointed as L.P.S.A on 01.06.2009. The appointment was not approved by the Department on the ground that one protected teacher was not provided in the school, since the school is a newly upgraded one. According to the petitioner, there is no protected L.P.S.A in Nilambur Education Sub District, and though the Deputy Director of Education, Malappuram allotted a protected L.P.S.A from Ponnani Education Sub District, she joined duty only on 09.03.2011, for which the petitioner or the management is not responsible. It is also the case of the petitioner that, the Deputy Director of Education, Malappuram is duty bound to furnish a list of protected teachers every year to the **W.P.(C)No.29305 of 2011** **3** Manager of newly opened/upgraded schools in terms of G.O.(P)No.178/2002/G.Edn. dated 28.06.2002 and Circular No.74101/J2/2004/G. Edn. dated 24.01.2005. But no list of protected hands was furnished by the Deputy Director of Education, Malappuram. It was thereupon that the Manager appointed the petitioner. 3. Even though the Manager as per Exts.P6, P7 and P8 requested to post another protected teacher, since the protected teacher allotted by the Deputy Director of Education, Malappuram failed to join duty, the authority did not take appropriate action at the appropriate time and a protected teacher joined duty only on 09.03.2011. Therefore, the case projected by the petitioner is that, there is no justification in denying approval of appointment of the petitioner from 01.06.2009 onwards. Petitioner has also worked as L.P.S.A in the school against a sanctioned post. Therefore, it is submitted that, the educational authorities went wrong in declining the approval from the actual date of appointment of the petitioner i.e., 01.06.2009. The contentions put forth by the petitioner are basically supported by the judgment rendered by this Court in ' _**Nadeera v. State of Kerala**_ ' [2011(3) KLT 790] wherein, the very same question was **W.P.(C)No.29305 of 2011** **4** considered, and held that, merely because a protected hand was appointed on a later date, the approval of an incumbent against a regular vacancy cannot be extended to the date of appointment of a protected hand. 4. On the other hand, the 3[rd] respondent has filed a detailed counter affidavit, basically contending that the appointment of the petitioner as L.P.S.A with effect from 01.06.2009 has been considered by the Assistant Educational Officer, however, rejected on the ground that the Manager of the school has not appointed a protected teacher as per Government Order No.46/2006 dated 01.02.2006. It is also contended that, as per the appellate order of the 4[th] respondent, i.e., the District Educational Officer, the Assistant Educational Officer had approved the appointment of the petitioner as L.P.S.A with effect from 09.03.2011, the date of joining of the protected hand. Even though the Manager has filed a revision before the Director of Public Instructions on refusing the approval of appointment from the date of initial appointment, the 2[nd] respondent rejected the approval submitted by the Manager, and thereafter directed the Assistant Educational Officer, Nilambur to approve the appointment on and with effect **W.P.(C)No.29305 of 2011** **5** from 09.03.2011. 5. The paramount contention advanced by the 3[rd] respondent is that, the 6[th] respondent school is a newly opened school. As per the notification specified above, the Manager reserved the post for protected hand only from 2008-09 academic year. The list of protected hands of Malappuram Revenue District has been published by the respondent in each year and the same has been forwarded to the concerned Manager by the 5[th] respondent in time. The list of protected teacher is made available to the 6[th] respondent by the Department. Hence the Manager of the school alone responsible for non-approval of appointment of the petitioner from 01.06.2009 onwards. It is also submitted that, as the school is a newly opened one, as per G.O.(P)No.46/06 dated 01.02.2006, the Manager is liable to appoint a protected teacher for the approval of rest of the appointments. 6. Further, it is submitted that, against the judgment in ' _**Nadeera**_ ' ( _supra_ ), W.A.Nos.178/12 and 739/12 were filed, which is pending consideration. However, the petitioner has produced the judgment in the aforesaid writ appeals as Ext.P13 in ' _**State of Kerala v Nadeera**_ ' [2013 (2) KLT 88], wherein, a **6** ## **W.P.(C)No.29305 of 2011** Division Bench of this Court has affirmed the judgment of the learned Single Judge in ' _**Nadeera**_ ' ( _supra_ ). 7. I have heard learned counsel for the petitioner and the learned Senior Government Pleader and perused the pleadings and the documents on record. 8. It is true that as per G.O.(P)No.46/2006, in order to approve the appointment made by the Manager, a protected hand is to be appointed at first by the Manager, and that was the question considered by this Court in ' _**Nadeera**_ ' ( _supra_ ), and held that, there is no enabling provision which allows the educational officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009, which can only be prospective in nature. In my considered opinion, the fact situations considered in ' _**Nadeera**_ ' ( _supra_ ) are similar in nature and the petitioner herein was appointed as L.P.S.A with effect from 01.06.2009. Therefore, the Government Order dated 19.11.2009, which was held to be having only prospective operation cannot militate against the appointment of the petitioner against a regular vacancy. Paragraphs 14 to 20 of the said judgment are relevant to the context, which read thus: **W.P.(C)No.29305 of 2011** **7** “ _**14** . Actually, the said Government Order was issued relaxing the conditions in G.O.No.l78/2002/G.Edn. Dated 28.6.2002 wherein all the vacancies were directed to be filled up by protected hands. Paragraph No.(i) of G.O. (P)No.46/06/G.Edn. dated 1.2.2006 reads as follows:_ _“In such schools at least one teacher should be appointed from the list of protected hands.”_ _As direction No.(iii), the approval of appointment of 402 teachers were also ordered by the Government. It is also mentioned that if in any case a protected hand is not available, the vacancy will have to be filled up only on daily wage basis._ _**15** . I find nothing therein which prevents approval of appointment or which postpones the approval till a protected hand is appointed by the Manager. The said Government Order restate the obligation of the Manager to appoint a protected hand. But the time factor is not mentioned therein. In many cases, availability of protected hands may be delayed and nonavailability of protected hands in certain posts may be there. Therefore, to compel a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by the staff fixation order will go against the scheme of the Act and Rules itself. When the staff fixation order permits appointment of required number of staff, the Manager will have to make the appointment in existing vacancies and exercise of the power of the Manager in such cases cannot be said to be against the scheme of the Act. In fact the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Manager, M.M.H.S. v. Deputy Director (1994 (1) KLT 321) taking the view that actually it is the duty of the Manager to fill up all the posts in accordance with the orders of the educational authorities fixing the staff strength._ _**16** . Therefore, it can be see that when the Manager exercised his power to make appointment in terms of staff fixation order of a qualified teacher, the postponement of the approval on the plea that the same can be done only from the date_ **W.P.(C)No.29305 of 2011** **8** _of appointment of the protected hand may not be justified. In this context a later Government Order of the year 2009 is also worth-mentioning. The same is G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarifies G.O.No.46/06 /G.Edn. dated 1.2.2006. It is insisted therein that in the schools which have opened between 1979 and 1990 or which have been upgraded, if for any reason a protected hand is not appointed, then at least one protected teacher may be appointed in any of the existing/arising vacancies and the appointments otherwise made shall not be approved. It is further clarified therein that if any appointments have been made in any of the schools like wise, approval can be effected from the date of appointment of a protected hand._ _**17** . This also confirms the view that at least till the said Government Order was issued on 19.11.2009, there was no restriction to grant approval on the plea that such approval will be granted only from the date of appointment of a protected hand. In fact, going by R.7 of Chap.XIV-A of K.E.R., “as soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.” As far as grant approval is concerned, normally, it should conform to the existence of vacancy and the sanction of post as per the staff fixation order and the eligibility of the teacher for appointment by fulfilling the qualification. Once these conditions are satisfied, unless there is any other legal bar for granting approval, there cannot be a refusal to grant approval normally._ _**18** . The learned Government Pleader relied upon R.1 of Chap.XIV-A K.E.R. in this context to submit that all the rules contained therein will have to be followed while filling up the vacancy, which includes the scheme for providing a protected hand. The plea advanced by the learned Government Pleader is that going by the same, “whenever vacancy occurs, the Manager shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand (and for filling up vacancy).” Actually, the same indicates the_ **W.P.(C)No.29305 of 2011** **9** _provisions for filling up the vacancies in terms of the Rules and orders fixing qualification, age, etc., and not a situation like this, which is evident from the opening sentence therein that “Managers of private schools shall appoint only candidates who possess the prescribed qualification”._ _**19** . Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of R.6(viii) of Chap.V of KER. There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009 was issued which can only be prospective. Evidently there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be postponed._ _**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 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_ **W.P.(C)No.29305 of 2011** **10** _the matter the petitioners are entitled to succeed in the Writ Petition”._ 9. The findings rendered by the learned Single Judge was upheld by the Division Bench in ' _**State of**_ _**Kerala v. Nadeera**_ ' ( _supra_ ). Therefore, taking into account the factual and legal circumstances available on record, it is clear that petitioner is entitled to succeed in the writ petition. It is also clear from the fact situations that the educational authority has not discharged its duty of intimating the list of protected teachers, enabling the Management to appoint the protected teachers. It is clear from Exts.P6 to P8 dated 11.08.2008, 30.05.2009 and 12.11.2010 that the Manager has addressed the educational authority informing that the protected hand directed to be appointed did not join duty and requested to provide a protected hand, enabling the management to make appointment. By the earnest efforts made by the Manager, ultimately, a protected hand was directed to be appointed viz., one Sathyabhama, as per Ext.P9 order dated 19.02.2011. There is no case for the respondents that there was any double payment of salary and that the petitioner was not appointed against a regular vacancy. Therefore, in case a protected teacher is not **W.P.(C)No.29305 of 2011** **11** available, the vacancies cannot be kept idle for all time, and the management could be found fault with by the Department, and also the parents who sent their children for appropriate education. 10. Moreover, the management has a paramount duty to provide necessary education to the children attending the school by appointing suitable teachers. There is no evidence also before this Court to show that the educational authority has provided the list of protected teachers to the management to make the appointment in a date prior to 01.06.2009, on which date the petitioner was appointed by the Manager in the school. It is equally clear that the Manager/Management was not having any obligation to secure list of protected teachers from the educational authority, and on the other hand, it is the duty of the educational authority to intimate the list of protected teachers to the management. It is also equally clear, it was pursuant to the Circular issued on and with effect from 19.11.2009, the obligation was cast on the manager of the school to secure the list of protected teachers and appoint a protected hand, first, before any other appointments are made. Therefore, as of now it is a well settled legal position that the Circular can have **12** ## **W.P.(C)No.29305 of 2011** only prospective effect, and therefore, there was no duty cast upon the Manager of the school to require the educational authority to provide a list of protected teachers and appoint a protected teacher. Therefore, it is clear and evident that petitioner is entitled to succeed in this writ petition. Accordingly, the writ petition will stand allowed, and there will be a direction to the Assistant Educational Officer, Nilambur, Malappuram District, i.e., the 5[th] respondent to approve the appointment of the petitioner as L.P.S.A on and with effect from 01.06.2009, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. Needless to say, if any monetary/or other service benefits are to be secured by the petitioner, it shall be granted from 01.06.2009 onwards. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-30.10.2019** **W.P.(C)No.29305 of 2011** **13** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE ORDER IN WPC NO.35021/2010 DATED 23/11/2010.** - **EXHIBIT P2 TRUE COPY OF THE ORDER NO.K.DIS.C/6704/10 OF THE 5TH RESPONDENT DATED 27/12/2010.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.A3/6705/10 OF THE 4TH RESPONDENT DATED 16.05.2011.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.G2/43414/2011/DPI/L.DIS. OF THE DIRECTOR DATED 12/08/2011.** - **EXHIBIT P5 TRUE COY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01/06/2009.** - **EXHIBIT P6 TRUE COPY OF THE REQUEST OF THE MANAGER OF THE SCHOOL DATED 11/08/2008.** - **EXHIBIT P7 TRUE COPY OF THE REQUEST OF THE MANAGER OF THE SCHOOL DATED 30/05/2009.** - **EXHIBIT P8 TRUE COPY OF THE REQUEST OF THE MANAGER OF THE SCHOOL DATED 12/11/2010.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.B3/11906/2008 OF THE DEPUTY DIRECTOR DATED 19/02/2011.** - **EXHIBIT P10 TRUE COPY OF THE DECISION REPORTED IN 2011(3) K.L.T. 790 DATED 04/08/2011.** - **EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WPC NO.21646/2010-E DATED 20/08/2011.** - **EXHIBIT P12 TRUE COPY OF THE DECISION REPORTED IN 1993(2) K.L.T.S.N. PAGE 27C CASE NO.28 DATED 02/08/1993.** - **EXHIBIT P13 TRUE COPY OF THE DECISION REPORTED IN 2013(2)KLT 88 DECIDED ON 19TH FEBRUARY 2013.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF THE GO(P) 317/05/G.EDN. DATED 17/08/2005.** **EXHIBIT R3(B) TRUE COPY OF THE LETTER NO.B3/11906/08 DATED 08/07/2008.** **W.P.(C)No.29305 of 2011 14** **EXHIBIT R3(C) TRUE COPY OF THE GO(P) 178/02/G.EDN. DATED 28/06/2002. EXHIBIT R3(D) TRUE COPY OF THE GO(P) NO.46/06 DATED 01/02/2006.**