K. P. Khamarunnisa v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933** **WP(C).No. 37337 of 2010(N)** **------------------------------------** ## **PETITIONER(S):** **----------------------** **K.P.KHAMARUNNISA, HSA (ARABIC), P.T.M.YATHEEMKHANA H.S.S, EDAPPALAM, PALAKKAD.** **BY ADVS. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI SRI.P.N.APPUKUTTAN** ## **RESPONDENT(S):** **------------------------** **1. THE STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD-678 001.** **4. THE DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM-679 101.** **5. THE MANAGER, P.T.M.YATHEEMKHANA** - **H.S.S., EDAPPALAM, PALAKKAD-679 308.** **R1-R4 BY GOVT. PLEADER ADV.SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **WP(C).No. 37337 of 2010(N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXT.P1 - COPY OF THE APPOINTMENT ORDER DATED 25.10.2004.** - **EXT.P2 - COPY OF THE ORDER DATED 29.12.2004.** - **EXT.P3 - COPY OF THE ORDER DATED 02.04.2005 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P4 - COPY OF THE ORDER DATED 25.11.2005 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P5 - COPY OF THE ORDER DATED 30.05.2006 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P6 - COPY OF THE APPOINTMENT ORDER DATED 01.06.2005.** - **EXT.P7 - COPY OF THE ORDDER DATED 04.02.2006 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P8 - COPY OF THE GOVT. ORDER DATED 01.02.2007.** - **EXT.P9 - COPY OF THE GOVT. ORDER DATED 05.05.2008.** - **EXT.P10 - COPY OF THE ORDER DATED 15.12.2008 ISSUED BY THE MANAGER.** - **EXT.P11 - COPY OF THE GOVT. ORDER DATED 12.05.2009 ISSUED BY THE GOVERNMENT.** - **EXT.P12 - COPY OF THE PROCEEDINGS DATED 03.07.2009 BY THE 4TH RESPONDENT.** - **EXT.P13 - COPY OF THE REPRESENTATION DATED 07.01.2010 BY THE MANAGER.** - **EXT.P14 - COPY OF THE REPRESENTATION DATED 18.01.2010 SUBMITTED BY THE PETITIONER.** - **EXT.P15 - COPY OF THE JUDGEMENT DATED 02.03.2010 IN W.P. (C ) 6672/2010.** - **EXT.P16 - COPY OF THE ORDER DATED 20.08.2010 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P17 - COPY OF THE APPROVAL ORDER DATED 29.07.2005 ISSUED BY THE 4TH RESPONDENT.** - **EXT.P18 - COPY OF THE APPROVAL ORDER DATED 11.09.2006 ISSUED BY THE 4TH RESPONDENT.** **RESPONDENT'S EXHIBITS - NIL** **/TRUE COPY/** **P.A.TO JUDGE** ## **DG** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.37337/2010-N ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29[th] day of November, 2011`** ``` J U D G M E N T ``` ``` The petitioner who was appointed as High School Assistant (Arabic) by the fifth respondent-Manager seeks for approval of appointment after setting aside Exts.P2 to P5, P7, P8, P11 and P16 orders. ``` ``` 2.The petitioner was initially appointed as per Ext.P1 order dated 25/10/2004 and the approval was rejected by Ext.P2 stating that the vacancy has to be filled up by a protected teacher. The appeals and revisions were rejected as evident from Exts.P3 to P5. In a subsequent vacancy from 01/06/2005, the petitioner ``` ``` was re-appointed as per Ext.P6 and by the impugned orders, the approval of the same was declined stating that the vacancy has to be filled up by a protected hand. ``` ``` 3.It is averred in the writ petition that on 20/11/2007, a long leave vacancy of H.S.A (Maths) for five years arose in the school and the Manager expressed his willingness to appoint a protected ``` ## **W.P.(C). No.37337/2010** ## **-:2:-** ``` teacher in the said vacancy. Ext.P10 is an order passed by the Manager appointing a protected teacher in the leave vacancy of H.S.A (Maths) but she did not join duty. ``` ``` 4.Even though the Manager, thereafter, moved the Government for getting approval of appointment of the petitioner stating that a protected hand was appointed, but she failed to join duty, then also the Government reiterated the stand that as a protected hand is yet to be appointed in a regular vacancy, approval of appointment of the petitioner cannot be granted. ``` ``` 5.Exts.P9 and P16 are the orders passed by the Government with regard to the approval of appointment of the petitioner. In Ext.P9, the direction by the Government is to approve the appointment as and when a protected teacher is appointed and in Ext.P16 also the said stand is reiterated. ``` ``` 6.The learned counsel for the petitioner submitted that the Manager has already earmarked a vacancy of H.S.A (English) for appointment of a protected hand and Ext.P13 is the communication ``` ## **W.P.(C). No.37337/2010** ## **-:3:-** ``` addressed to the Deputy Director of Education dated 07/01/2010 in that regard. Apart from that it is pointed out that subsequent appointees to the school have been granted approval as evident from Exts.P17 and P18 orders. ``` ``` 7.The apparent stand taken by the respondents is that the obligation of the Manager to appoint a protected hand under G.O.(P).No.178/2002/G.Edn., dated 28/06/2002 which is modified by subsequent Government Order still remain to be complied with and, therefore, approval of appointment of the petitioner can be granted only after appointment of the protected hand. ``` ``` 8.Herein, it is evident from the pleadings that the Manager has already earmarked a post of H.S.A. (English) for appointment of a protected hand. True that the protected hand has not been deployed by the Department as it is stated in the counter affidavit also that a protected H.S.A (English) is not available. But, earlier, the Manager had, by Ext.P10 appointed a protected H.S.A (Maths) in a leave vacancy but she did not join duty. Therefore, it is not a case where there ``` ## **W.P.(C). No.37337/2010** ## **-:4:-** ``` is a refusal on the part of the Manager to appoint a protected hand. ``` **`9. The question whether approval of appointment in such circumstances could be postponed till a protected hand is available was considered by this Court in` Nadeera v. State of Kerala [2011 (3) KLT 790].** **`Therein, this Court was of the view that the postponement of approval cannot be justified in such circumstances and the appointment of the teacher cannot depend on the date of appointment of a protected hand. Of course, the Manager has an obligation for appointment of a protected hand for which he is prepared also as evident from Ext.P13. Paras.19 and 20 of the above Judgment reads as follows:-`** **“19. Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of Rule 6 (viii) of Chapter 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** ## **W.P.(C). No.37337/2010** ## **-:5:-** **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** ## **W.P.(C). No.37337/2010** ## **-:6:-** **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.”** **These principles will apply to the facts of this case.** ``` 10.Apart from that, the persons who have been appointed after the petitioner's appointment was effected, also gained approval as evident from Exts.P17 and P18 orders. Therefore, evidently, in their case, the objection was not persisted by the Department. ``` ``` 11.For all these reasons, the petitioner is entitled to succeed in the writ petition. Therefore, the writ petition is allowed. Exts.P2 to P5, P7, P8, P9, P11 and P16 orders are quashed. It is declared that the petitioner is entitled for approval of ``` ## **W.P.(C). No.37337/2010** ## **-:7:-** ``` appointment based on Ext.P6 appointment order. There will be a direction to the District Educational Officer to pass appropriate orders approving the appointment of the petitioner as above within two months from the date of receipt of a copy of this Judgment and the petitioner will be granted all the consequential monetary benefits also. A protected hand will be appointed in the schoo1 as agreed to by the Manager or if any protected hand is available in any other discipline, the department will be free to communicate the details of the protected hand to the Manager for making appointment depending upon the sanction of posts. No costs. ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**