K.G. GOPAKUMAR v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** ## **WP(C) NO. 6024 OF 2012** ## **PETITIONER:** **K.G.GOPAKUMAR AGED 29 YEARS S/O.GOPINATHAN NAIR, AGED 29 YEARS, JUNIOR SANSKRIT TEACHER (FULL-TIME), HIGH SCHOOL, THIRUVALAYANNUR, KALLUR-VADAKKEKKAD, THRISSUR-679562.** **BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT-680506.** - **4 THE MANAGER HIGH SCHOOL, THIRUVALAYANNUR, KALLOOR-VADAKKEKKAD, THRISSUR-679562.** **BY ADVS. SRI.P.M.MANOJ, SR.GP SRI.K.B.GANGESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2021, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6024 OF 2012** **2** ## **J U D G M E N T** The petitioner, who is stated to be working as a Junior Sanskrit Teacher (Full-Time) from 02.06.2008, is before this Court impugning Exts.P2, P8 and P11, as per which, his service has been refused to be approved stating the reason that the School in which he is working, namely “High School, Thiruvalayannur”, is a newly upgraded one and therefore, that going by the extant Government Orders, a protected teacher ought to have been appointed to the vacancy to which he has now been accommodated. 2. The petitioner says that the afore stand of the Educational Authorities, as is also evident from Ext.P11 order of the Government, is grossly flawed because, going by the judgments of this Court in **Moosakutty v. DEO, Wandoor [2009 (3) KLT 863)** and **Nadeera v. State of Kerala [2011 (3) KLT 790],** the Manager would have been obligated to appoint a protected teacher only if the Educational Authorities had communicated to him that such teachers were available in the educational district at the time when the vacancies arose. The petitioner says that there is absolutely no whisper in any of the **WP(C) NO. 6024 OF 2012** **3** impugned orders that any such list or details of protected teachers had been made available to the Manager by the concerned Educational Authorities and that solely what is stated in Ext.P11 is that “such teachers were available” in the Chavakkad Educational District as on 02.06.2008. The petitioner thus contends that, on the touchstone of the afore cited precedents, the stand of the respondents in the impugned orders, including Ext.P11, is unsustainable. 3. I have heard Smt.P.A.Jenzia, learned counsel appearing for the petitioner and Smt.P.M.Manoj, learned Senior Government Pleader appearing for the official respondents. 4. Smt.P.A.Jenzia, in addition to the afore contentions argued that, as has been clearly stated in Ext.P9 revision petition filed by her client before the Government of Kerala under the provisions of Rule 92 Chapter XIVA of the Kerala Education Rules (KER), the first language requirement during 2007-2008 in the various standards in the School in question, as per the approved staff fixation order, crystally provided for the post of a Full Time Sanskrit Teacher and therefore, that her client is certainly eligible to be appointed to the vacancy which arose on 02.06.2008. She **WP(C) NO. 6024 OF 2012** **4** thus reiteratingly prayed that this writ petition be allowed. 5. Sri.P.M.Manoj, learned Senior Government Pleader appearing for the official respondents, on the contrary, argued that when protected teachers were available in the Chavakkad Educational District as on 02.06.2008, the Manager of the School in question was obligated in law to appoint one among them and could not have appointed the petitioner as has been done. He then added to his submissions by saying that a counter affidavit has been filed on behalf of the 3rd respondent, wherein, it has also been clearly shown that as per the staff fixation order of the year 19851986, the post of Junior Sanskrit Teacher was abolished for want of sufficient periods and that the earlier incumbent, Smt.C.Omana David, had been granted protection personally, which would not enure any benefit to the petitioner, who was appointed much later. The learned Senior Government Pleader thus prayed that this writ petition be dismissed. 6. I have examined the afore submissions and have also gone through the materials on record. 7. As rightly stated by Smt.P.A.Jenzia, the second afore argument of the learned Senior Government Pleader, that a post **WP(C) NO. 6024 OF 2012** **5** of Junior Sanskrit Teacher had been abolished in the School as early as in the year 1985-1986, does not reflect in any of the impugned orders, including Ext.P11. In fact, the only reason stated in Ext.P11, for not approving the appointment of the petitioner, is that there were protected teachers “available in the Chavakkad Educational District” as on 02.06.2008. 8. In such perspective, the only issue which is now germane for my consideration is whether the petitioner's appointment could be assailed on the ground that protected teachers had not been appointed by the Manager, since the School in question is a newly upgraded one. 9. As is available from the impugned orders itself, the Educational Authorities including the Government, take a stand that there were teachers “available in the Chavakkad Educational District” but none of the orders even murmurs to the effect that Manager of the School had been notified of this or that a list of protected teachers had been forwarded to him. The conspicuous absence of this information in the orders which are impugned before this Court, certainly compel me not to grant imprimatur to the same. 10. That said, the only question now surviving for my **WP(C) NO. 6024 OF 2012** **6** consideration is as to the relief to be given to the petitioner. 11. The impugned orders refuse to approve the appointment of the petitioner solely because there were protected teachers “available in the Chavakkad Educational District”. However, the question whether this would be sufficient and whether, in the absence of a communication being issued to the Manager by the competent Educational Authorities, the rigour of **Moosakutty** (supra) and **Nadeera** (supra) are satisfied, have not been considered by any of the Educational Authorities, including the Government. 12. I am, therefore, firm in my mind that the entire matter will require to be reconsidered by the Government, taking note of Ext.P9 Revision Petition filed by the petitioner, particularly because Ext.P11 order had been issued based on Ext.P10 judgment of this Court, commanding that said Revision be disposed of in terms of law. 13. In the afore circumstances, I set aside Ext.P11; with a consequential direction to the competent Authority of the Government to take up Ext.P9 Revision Petition of the petitioner and dispose of the same, after adverting to **Moosakutty** (supra) and **Nadeera** (supra) and after affording an opportunity of being **WP(C) NO. 6024 OF 2012** **7** heard to the petitioner and the Manager of the School - either physically or through video conferencing - thus culminating in an appropriate order thereon, as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment. Needless to say, based on the orders to be issued by the Authority in terms of the afore directions, petitioner shall be granted all service benefits without any avoidable delay thereafter. This writ petition is thus ordered. **SD/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C) NO. 6024 OF 2012** **8** ## **APPENDIX OF WP(C) 6024/2012** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 2.6.2008 Exhibit P2 TRUE COPY OF THE ORDER NO B5-4517/08/K DIS DATED 28.6.2008 OF THE 3RD RESPONDENT** **Exhibit P11 TRUE COPY OF THE GO(RT) NO 941/2010/G.EDN DATED 4.3.2010 OF THE GOVERNMENT. Exhibit P12 TRUE COPY OF THE CIRCULAR NO 27/J2/2006/G.EDN.DATED 26.5.2006 OF THE GOVERNMENT** **Exhibit P3 TRUE COPY OF THE STAFF FIXATION ORDER NO D.DIS C.1413/B3 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 8.7.1981 Exhibit P4 TRUE COPY OF THE GO(MS) NO 371/2000/G.END OF THE GOVERNMENT DATED 13.11.2000 Exhibit P5 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE 2ND RESPONDENT DATED 3.9.2008 Exhibit P6 TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT DATED 20.10.2008 IN WPC NO 30819/2008-R Exhibit P7 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BEFORE THE 2ND RESPONDENT DATED NIL Exhibit P8 TRUE COPY OF THE ORDER NO EM6/66386/08 DPI/K.DIS DATED 28.2.2009 OF THE 2ND RESPONDENT Exhibit P9 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 9.3.2009 Exhibit P10 TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WPC NO 10712 OF 2009-H DATE 1.4.2009** **9** ## **WP(C) NO. 6024 OF 2012** **Exhibit P11 TRUE COPY OF THE GO(RT) NO.941/2010/G.EDN DATED 04.03.2010 OF THE GOVERNMENT. EXHIBIT P12 TRUE COPY OF THE CIRCULAR NO.27/J2/2006/G.EDN DATED 26.5.2006 OF THE GOVERNMENT.**