K.A. Muhammed Habeebulla v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **WP(C).No.27029 OF 2012(C)** ## **PETITIONER:** **K.A.MUHAMMAD HABEEBULLA AGED 33 YEARS,S/O ANDRU KEEPRATH, HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), MARKAZ HIGHER SECONDARY SCHOOL, KARANTHUR P.O., KARANTHUR-673 571, KOZHIKODE DISTRICT (RESIDING AT ANEESA MANZIL, KELLUR, MANANTHAVADY-670 645, WAYANAD DISTRICT)** **BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMSA** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014.** - **3 THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE DISTRICT-673 571.** - **4 THE MANAGER MARKAZ HIGHER SECONDARY SCHOOL, KARANTHUR, KUNNAMANGALAM, KOZHIKODE-673 571.** - **R1 SRI B. VINOD, SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.27029 OF 2012(C) 2** ## **JUDGMENT** **Dated this the 12th day of December 2019** This writ petition is filed seeking to command the 3[rd] respondent to grant approval to Ext.P2 and to quash Exts.P3, P5, P7 and P9. The petitioner further seeks to command the 1[st] respondent to effectively consider and pass appropriate orders on Ext.P10. 2. The petitioner states that he was appointed as High School Assistant (Natural Science) from 02.06.2004 to 10.06.2005 against a leave vacancy in the school management of 4[th] respondent. The petitioner discharged his duties diligently and he is entitled to get approval of his service and to pay. The application submitted by the Manager for approval of the appointment of the petitioner against the said leave vacancy was rejected as per Ext.P3 on the ground that as per G.O.(P) No. 178/02 dated 02.06.2002, the 4[th] ## **WP(C).No.27029 OF 2012(C) 3** respondent ought to have appointed protected teachers against arising vacancies. By Ext.P3, the DEO directed the concerned to give explanation if any. Aggrieved by Ext.P3, the 4[th] respondent Manager filed Ext.P4 appeal before the Deputy Director of Education. 3. The Deputy Director of Education held that since the school managed by the 4[th] respondent is a newly opened school, all existing/arising vacancies are to be filled up by protected hands, as per G.O.(P) No.178/2002 dated 28.06.2002. Aggrieved by Ext.P5, the petitioner filed Ext.P6 revision before the Director of Education. The Director of Public Instruction dismissed the revision holding that being a newly opened school, the 4[th] respondent- Manager was bound to appoint a protected teacher. The Manager thereupon filed a revision before the 1[st] respondent. The 1[st] respondent also took the same way and rejected the revision petition. It is aggrieved by Exts.P3, P5, P7 and P9 orders, the petitioner has filed this writ petition. ## **WP(C).No.27029 OF 2012(C) 4** 4. The 1[st] respondent filed a counter affidavit and defended the impugned orders. The counter affidavit filed by the 1[st] respondent proceed to state that the school in question is a newly opened school in the year 1982-83. The school was allowed to function after executing an agreement by the School Manager that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from service from other Aided Schools. The agreement will be in force as long as Rule 6(viii), Chapeter V, KER is not amended. The petitioner was appointed as HSA(NS) in the leave vacancy of Smt. Vaheeda.K from 02.06.2004 to 10.05.2005. The application for approval of the appointment of the petitioner was rejected by the DEO based on G.O dated 28.06.2002. Hence the writ petition is only to be dismissed. 5. I have heard learned counsel for the petitioner and the learned Government Pleader. Learned counsel for the ## **WP(C).No.27029 OF 2012(C) 5** petitioner submitted that the issue involved in the writ petition is covered by a Division Bench judgment of this Court in **State of Kerala vs. Nadeera [2013(2) KLT88]** . The learned Government Pleader, on the other hand, submitted that the said judgment is not applicable to the case on hand, in as much as in respect of the school involved in the said **Nadeera's case** , there was no agreement executed between the Manager and the Government, where as in the case of the School managed by the 4[th] respondent there is an agreement/undertaking. Therefore, the Manager who has obtained permission for starting new school and have undertaken the obligation to absorb protected teachers in the school, cannot be permitted to wriggle out of his obligation at a later stage. 6. The pleadings in the case and argument advanced by learned counsel for the petitioner and the learned Government pleader make it evident that the petitioner was appointed against a leave vacancy for the period from ## **WP(C).No.27029 OF 2012(C) 6** 02.06.2004 to 10.06.2005. There is no allegation of illegality in the appointment, other than violation of the G.O.(P) No.178/2002 dated 28.06.2002 issued by the 1[st] respondent which requires the 4[th] respondent-Manager to appoint protected teachers in the newly opened school. 7. This issue has been considered by a Division Bench of this Court in the judgment in Nadeera's case. This Court held that what is required as per 2002 circular or the subsequent circulars is that if the list of protected teachers is forwarded by the Assistant Education Officer concern to the Deputy Director, which is made available to the Managers, then the Managers have no choice for option than to appoint protected teachers by filling up vacancies with protected teaches. This Court noted that the list of protected teachers from other managements will not be available with the schools. In the schools which have to be construed as new establishments though commenced much earlier from a particular day, definitely there would be existing vacancies, ## **WP(C).No.27029 OF 2012(C) 7** and future vacancies also would arise. This Court held that when the Manager in such circumstances, exercise his power to make appointment in terms of staff fixation order of a qualified teacher, postponement of such approval on plea that the same can be done only from the date of appointment of protected teacher, is not justified. 8. In the case on hand it is to be noted that in the impugned orders, the respondents 1 to 3 do not have a case that the 4[th] respondent-Manager has failed to appoint protected teachers in spite of making available to him a list of protected teachers. In the circumstances, I am of the opinion that the issue involved in the writ petition is squarely covered by the Dividion Bench judgment of this Court in State of Kerala Vs.Nadeera. In view of the above findings the writ petition is allowed. Exts.P3, P5, P7 and P9 are set aside. The 3[rd] respondent is directed to grant approval to the appointment of the petitioner in the light of the judgment of this Court in State of Kerala Vs. **WP(C).No.27029 OF 2012(C) 8** Nadeera **.** Necessary orders will be passed within a period of two months. **Sd/N.NAGARESH JUDGE** **LEK** ## **WP(C).No.27029 OF 2012(C) 9** ## **APPENDIX** ## **PETITIONER EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 01.06.2004** - **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 02.06.2004** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.B45767/04/L. DIS.DATED 22.04.2005 OF THE 3RD RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE APPEAL FILED BEFORE THE DEPUTY DIRECTOR BY THE MANAGER DATED 30.04.2005** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.K.DIS.9588/05/B5 DATED 29.08.2005 OF THE DEPUTY DIRECTOR** - **EXHIBIT P6 TRUE COPY OF THE REVISION FILED BEFORE THE 2ND RESPONDENT DATED 15.09.2005** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.EM(2)/72778/05/DPI/D.DIS.DATED 09.03.2006 OF THE 2ND RESPONDENT** **EXHIBIT P8 TRUE COPY OF THE REVISION FILED BEFORE THE GOVERNMENT DATED 03.05.2006** **EXHIBIT P9 TRUE COPY OF THE LETTER NO.17261/A2/2006/G.EDN.DATED 29.04.2009 OF THE GOVERNMENT** **EXHIBIT P10 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 10.06.2009**