K. Naseema v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944** ## **WP(C) NO. 16959 OF 2011** ## **PETITIONER:** K. NASEEMA, WIFE OF SHARAFUDEEN, AGED 40 YEARS, JUNIOR LANGUAGE TEACHER-ARABIC, B M M U P SCHOOL, CHAPPANANGADI, MALAPPURAM DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. - 2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM-695014. - 3 THE DEPUTY DIRECTOR OF EDUCATION DOWN HILL, MALAPPURAM DISTRICT-675519. - 4 THE DISTIRCT EDUCATIONAL OFFICER MALAPPURAM DISTRICT-675519. - 5 THE ASSISTANT EDUCATION OFFICER MALAPPURAM DISTRICT-675519. - 6 THE MANAGER B M M U P SCHOOL CHAPPANANGADI, MALAPPURMA DISTRICT-676503. BY ADV. - SMT.K.G.SAROJINI, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16959 OF 2011 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 16959 of 2011** **---------------------------------------------Dated this the 16[th] day of November, 2022** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _“(i) call for the records relating to Exhibits P-5, P-6, P-9 and P-11 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ order or direction._ _(ii) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to approve the appointment of the Petitioner covered by Exhibit P-4._ _(iii) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.”[SIC]_ 2. It is the case of the petitioner that she has got approved service from 13.12.1995 to 30.4.1996 and 20.8.1997 to 30.4.2003 as Upper Primary School Assistant. Petitioner is again appointed as Arabic WP(C) NO. 16959 OF 2011 3 Teacher under the same Management with effect from 1.6.2009 onwards against a retirement vacancy. The Assistant Educational Officer rejected the approval. The District Educational Officer also rejected the appeal. The Director vide order dated 20.4.2011 rejected the appeal. Government as per Ext.P11 dated 3.2.2011 informed that the petitioner's appointment can be approved only after the appointment of a protected teacher. Aggrieved by the same, this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. 4. The counsel appearing for the petitioner submitted that in the light of the dictum laid down by this Court in _**Ciji P. Jose v. State of Kerala**_ [2012 (1) KLT 867], a protected hand who is available and who is liable to be deployed under various executive orders, should be not absorbed as against a claimant under Rule 51A of Chapter XIVA of the Kerala Education Rules, 1959. The counsel also submitted that, Ext.P11 is not a WP(C) NO. 16959 OF 2011 4 speaking order. The counsel relied on the Full Bench decision of this Court in _**Sudheer T. v. M.V. Susheela and Others**_ [2009 (3) KHC 991] and submitted that Ext.P11 is not a speaking order. Ext.P15 is the question raised under the Right to information Act and as per Ext.P15(a), the Deputy Director of Education, Malappuram informed that as on 1.6.2009 there is only one Arabic language teacher as protected teacher and she is already deployed to a Government school. The counsel submitted that, in such circumstances, Ext.P11 will not stand. 5. The Government Pleader on the other hand submitted that there is nothing to interfere with Ext.P11. The Government Pleader submitted that, when the protected teacher is available, the Manager has to appoint the protected teacher. 6. This Court considered the contentions of the petitioner and the Government Pleader. This Court perused Ext.P11. First of all it is not a speaking order. WP(C) NO. 16959 OF 2011 5 There is no proper reasoning in Ext.P11. Moreover, in _**Ciji P. Jose**_ 's case (supra), this Court clearly stated that, a protected hand who is available and who is liable to be deployed under various executive orders, should be not absorbed as against a claimant under Rule 51A of Chapter XIV-A of the Kerala Education Rules, 1959. The relevant portion of the above judgment is extracted hereunder: _“4. It is well settled that the benefit granted to a teacher under Rule 51A has to be extended by the Manager. Herein, the question is whether a protected hand who is available and who is liable to be deployed under various executive orders, should be absorbed as against a claimant under Rule 51A. Obviously, the statutory rules will prevail over executive orders. Rule 51A or any other provisions have not been amended for incorporating the provisions of the circular. Therefore, para 4 of Ext.P10 cannot operate against the provisions of Rule 51A of Chapter XIV-A K.E.R.”_ 7. Admittedly, the petitioner is a Rule 51A claimant. Moreover, a perusal of Ext.P15 series will show that there is only one protected teacher in WP(C) NO. 16959 OF 2011 6 Malappuram Educational District and that teacher was already deployed in a Government School. In such circumstances, according to me, Ext.P11 can be set aside and the Government can be directed to reconsider the matter. 8. When this writ petition came up for consideration on 10.02.2012, this Court passed the following order in I.A.No.2047 of 2012: _“The prayer in the inter locutory application is for a direction to the respondents to include the petitioner in the Teachers' Package Scheme and disburse the pay and allowances from 01/06/2011. Along with the I.A, the petitioner has produced Ext.P17 which is stated to be a complaint. The petitioner seeks for appropriate action to be taken at the Government level._ _2. Therefore, if the petitioner files an appropriate representation along with a copy of this interim order and a copy of the writ petition before the Government within two weeks, the same will be considered and appropriate orders will be passed after hearing the petitioner and the Manager within five months from the date of receipt of a copy of this Order.”_ 9. Based on the said order, the Government WP(C) NO. 16959 OF 2011 7 passed an order on 21.04.2012. In that order, the Government directed the Director of Public Instruction to include the petitioner's name in the final list of teachers working without salary and to approve her appointment from 1.6.2011 onwards if she is otherwise eligible as per Rules. But the petitioner is appointed in 2009. Her claim is that she is a Rule 51A claimant. She should be preferred with the protected teacher. In such circumstances, the Government has to reconsider the matter regarding the approval with effect from 1.6.2009 onwards. Therefore, this writ petition is allowed in the following manner: i) Ext.P11 is set aside. ii) The first respondent is directed to reconsider the matter in the light of the dictum laid down by this Court in _**Ciji P. Jose**_ 's case (supra) and also in the light of Ext.P15 information obtained under the Right to Information Act. WP(C) NO. 16959 OF 2011 8 iii) The first respondent will give an opportunity of hearing to the petitioner before passing final order. iv) The above exercise shall be completed, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 16959 OF 2011 9 ## **APPENDIX OF WP(C) 16959/2011** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE ORDER OF APPOINTMENT| |---|---| ||OF THE PETITIONER AND APPROVAL| ||THEREOF| |EXHIBIT P2|TRUE COPY OF THE ORDER OF APPOINTMENT| ||OF THE PETITIONER AND APPROVAL| ||THEREOF| |EXHIBIT P3|TRUE COPY OF THE G.O. (P) NO.| ||112/2001/G.EDN. OF THE GOVERNMENT| |EXHIBIT P4|TRUE COPY OF THE ORDER OF APPOINTMENT| ||OF THE PETITIONER 01-06-2009| |EXHIBIT P5|TRUE COPY OF THE ORDER NO.| ||K.DIS.C/3308/09 OF THE ASSISTANT| ||EDUCATIONAL OFFICER| |EXHIBIT P6|TRUE COPY OF THE ORDER NO.| ||K.DIS.B1/9683/09 OF THE DISTRICT| ||EDUCATIONAL OFFICER| |EXHIBIT P7|TRUE COPY OF THE REVISION FILED| ||BEFORE THE 2ND RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT OF THIS| ||HON'BLE COURT IN W.P. (C) NO.2826 OF| ||2011-C| |EXHIBIT P9|TRUE COPY OF THE ORDER NO.| ||G2/12472/2011/DPI/K.DIS.<br>OF<br>THE| ||DIRECTOR| |EXHIBIT P10|TRUE COPY OF THE HEARING NOTE| ||SUBMITTED BY THE PETITIONER 29-03-| ||2011| |EXHIBIT P11|TRUE COPY OF THE COMMUNICATION NO.| ||60448/S2/10/G.EDN. OF THE GOVERNMENT| |EXHIBIT P12|TRUE COPY OF THE DECISION OF THIS| ||HON'BLE COURT REPORTED IN 2011 (2)| WP(C) NO. 16959 OF 2011 10 K.H.C. 123 EXHIBIT P13 TRUE COPY OF THE G.O. (RT.) NO. 52/11/G.EDN. OF THE GOVERNMENT EXHIBIT P14 TRUE COPY OF THE DECISION REPORTED IN 2006 (3) K.L.T. 435 EXHIBIT P15 TRUE COPY OF THE LETTER OF SMT. KAMARUNNISA K BEFORE THE INFORMATION OFFICER EXHIBIT P15(A) TRUE COPY OF THE REPLY NO. B3/2572/2011 OF THE DEPUTY DIRECTOR RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE