K. Manorama v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 4TH DAY OF FEBRUARY 2014/15TH MAGHA, 1935** ## **WP(C).No. 7095 of 2011 (J)** ## **-------------------------------------** ## **PETITIONER:** - **-------------------** **K.MANORAMA, WIFE OF KARUNAKARAN NAMBIAR, AGED 35 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, T.I.HIGHER SECONDARY SCHOOL, NAIMARMOOLA, KASARAGOD DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED, SRI.K.E.HAMZA.** ## **RESPONDENTS:** **-----------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITSSECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM- 695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, P.O.VIDYANAGAR, KASARAGOD- 671 123.** **4. THE DISTRICT EDUCATIONAL OFFICER,** - **P.O.VIDYANAGAR, KASARAGOD- 671 123.** ## **5. THE MANAGER,** - **T.I. HIGHER SECONDARY SCHOOL, NAIMARMOOLA, P.O.VIDYANAGAR, KASARAGOD- 671 123.** **R1 TO R4 BY GOVERNMENT PLEADER SRI. R. RANJITH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.7095/2011-J:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DTD. 01/06/2005.** **EXT.P.2: COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DTD. 01/06/2005.** **EXT.P.3: COPY OF THE ORDER NO.EM3/55766/08/DPI/K. DIS. OF THE R.2. DTD. 22/10/2008.** - **EXT.P.4: COPY OF THE ORDER OF THE ADALATH DTD. 21/11/2009.** **EXT.P.5: COPY OF THE G.O.(RT).NO.3297/2009/G. EDN. OF THE GOVERNMENT DTD. 05/08/2009.** **EXT.P.6: COPY OF THE ORDER NO.3698/A2/2010/G. EDN. OF THE GOVERNMENT DTD. 04/08/2010.** **EXT.P.7: COPY OF THE REVIEW PETITION FILED BEFORE THE GOVERNMENT DTD. 30/08/2010.** **EXT.P.8: COPY OF THE ORDER NO.54745/A2/2010/G. EDN. OF THE GOVT. DTD. 07/02/2010.** **EXT.P.9: COPY OF THE ORDER NO.13505/P1/09/G. EDN. OF THE GOVERNMENT DTD. 03/03/2010.** **EXT.P.10: COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DTD. 24/06/2011.** - **EXT.P.10(A): COPY OF THE INFORMATION RECEIVED BY THE PETITIONER DTD. 20/7/2011.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 7095 of 2011 -------------------------------------------------Dated this the 4[th] day of February, 2014** ## **J U D G M E N T** The petitioner has come up before this Court for getting Ext.P5 quashed to the extent it stipulates condition for the approval of appointment against consequential vacancies arose due to the promotion to two teachers senior to the petitioner and also for a direction to the 4[th] respondent District Educational Officer to approve the appointment of the petitioner with effect from 01.06.2005. 2. The petitioner is working as UPSA in T.I. Higher Secondary School, Naimarmoola since 01.06.2005. During the academic year 2005-06, one Vidyalakshmi Mundath, who was working as UPSA, was promoted as HSA with effect from 01.06.2005 and as against that vacancy, the petitioner was appointed as UPSA as per Ext.P1. Another UPSA, by name Anitha, objected the W.P.(C) No. 7095 of 2011 **==> picture [20 x 8] intentionally omitted <==** promotion and claimed one of the HSA posts. The Director upheld her challenge and directed to promote her. Accordingly, the petitioner's appointment was regularized against the promotion vacancy of Smt.Anitha as per Ext.P2. It was approved with effect from 04.06.2007, as per Ext.P3. Seeking approval of promotion with effect from 01.06.2005, the petitioner moved the Adalath. Her petition was disposed of directing the District Educational Officer to consider the issue at the time when the issue to the post of HSA is settled as per Ext.P4. The petitioner alleges that the Government settled the issue upholding the promotion of Smt.Vidyalakshmi vide Ext.P5 order dated 05.08.2009. However, in Ext.P5, the Government ordered that the consequential vacancies arose due to promotion of Smt.Vidyalakshmi and Smt.Shyna shall be filled up only with protected hands. Thereafter, the District Educational Officer issued orders rejecting the approval of the petitioner's promotion. She moved for W.P.(C) No. 7095 of 2011 **==> picture [20 x 8] intentionally omitted <==** review under Rule 93 of Chapter XIV-A Kerala Education Rules, which was dismissed by Ext.P6. The grievance of the petitioner is that the Government, by Ext.P8 order, directed the District Education Officer to approve the appointment of the petitioner with effect from 09.01.2008 only, i.e., the date of appointment of a protected teacher. This, according to the petitioner, denies the approval of her promotion with effect from 01.06.2005 to 08.01.2008. She also apprehends that her pay already granted from 04.06.2007 to 09.01.2008 would be recovered under the guise of Ext.P8. It is in this context, the petitioner has come up before this Court. 3. I have heard the learned counsel for the petitioner and the learned Government Pleader. 4. Admittedly, the petitioner was working as UPSA since 01.06.2005. She was appointed as UPSA in the promotion vacancy of Smt.Vidyalakshmi Mundath. That appointment was not approved for want of W.P.(C) No. 7095 of 2011 ..4.. approval to the promotion. Thereafter, the petitioner was shifted against the promotion vacancy of Smt.V.V.Anitha with effect from 04.06.2007 onwards, consequent to Ext.P2 order. However, the appointment of the petitioner was approved only with effect from 04.06.2007. However, by Ext.P5 order, Ext.P2 order was set aside. On the basis of that, the original appointment of the petitioner with effect from 01.06.2005 got revived. 5. The learned counsel for the petitioner would argue that in terms of Ext.P4 order, the petitioner is entitled to get approval with effect from 01.06.2005. It was argued that the issue before the Government while passing Ext.P5 was that who amongst the UPSAs have to be promoted to the two new additional vacancies of HSA occurred. The petitioner's grievance is that beyond that scope, in Ext.P5, the Government ordered that the consequential vacancies arose due to the promotion of Smt.Vidyalekshmi and Smt.Shyna shall be W.P.(C) No. 7095 of 2011 **==> picture [20 x 8] intentionally omitted <==** filled up only with protected hands. This, according to the petitioner, is against her interest. 6. It can be seen from Exts.P5 and P6 that the objection to the appointment of the petitioner may be because of non-appointment of protected teacher. It was submitted by the learned counsel for the petitioner that the UP section of T.I. Higher Secondary School will not come under the purview of newly upgraded/newly opened school. It was submitted that the UP section was sanctioned as early as in 1966 and; the Government, vide G.O.(P) No.73/2006/G.Edn. dated 18.02.2006 had made clear that the schools started/upgraded since 22.05.1979 are under the nomenclature of new school. Thus, according to the petitioner, there is no question of accommodating protected teachers in the UP section. According to the petitioner, though this aspect was communicated by the Director of Public Instructions, the Government has not accepted this position. Ext.P9 is the said W.P.(C) No. 7095 of 2011 **==> picture [20 x 8] intentionally omitted <==** communication. According to the learned counsel for the petitioner, the stand of the Government in Ext.P7 is inconsistent with the Rule, Government Orders as well as the judgment of this Court. 7. At this juncture, the learned counsel for the petitioner invited my attention to a decision of the Division Bench of this Court in **State of Kerala and Others v. Haseena and Another** [2013 (2) KHC 103 (DB)], where it was observed that there is no obligation on the part of the managements of these aided schools to secure list of protected teachers and; in the absence of pin pointing violation of the guidelines intentionally or negligently by the Managers, the department can blame only its officers for not implementing their own guidelines. The authorities, who gave this guidelines from time to time, were also required to see that necessary material or list of protected teachers available with them was sent to various schools to reduce the misery of protected teachers. Having not W.P.(C) No. 7095 of 2011 ..7.. done so without taking any action against those officials, who did not care to see that their guidelines are implemented, shifting the disadvantage to the regularly appointed teachers is unreasonable and arbitrary; it was observed. The learned counsel for the petitioner, inviting my attention to Ext.P10, would submit that he had submitted an application before the Public Information Officer of the Deputy Director of Education Officer, Kasaragod asking for the following details; “1. Whether the list of undeployed protected UPSA teachers in Kasaragod Education District as on 1.6.2005 and as on 4.6.07 was maintained. 2. If any undeployed protected UPSA teachers in Kasaragod Educational District was available as on 1.6.2005 and as on 4.6.2007, furnish the details as per the records maintained.” In answer to the same, Ext.P10(a) was issued by the office. Enquiry No.2 was answered as 'Nil'. In the light of the above, the learned counsel for the petitioner would submit that as no protected teacher was available, the claim of the petitioner ought to have been upheld. I see valid force in the said submission. W.P.(C) No. 7095 of 2011 ..8.. In the result, the writ petition is allowed. The 4[th] respondent is directed to approve the appointment of the petitioner with effect from 01.06.2005 de hors the direction in Ext.P5. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-