K.J. Manual Joseph Shan v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938 WP(C).No. 14464 of 2013 (G) ---------------------------- PETITIONER(S): ------------- K.J.MANUAL JOSEPH SHAN S/O. LATE K.M.JOHN, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), HOLY INFANT BOYS HIGH SCHOOL, VARAPUZHA, ERNAKULAM DISTRICT. BY ADVS.SRI.V.A.MUHAMMED SRI.T.V.VIJAYARAJAN RESPONDENT(S): -------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM AT KAKKANAD-682 030. 3. THE DISTRICT EDUCATIONAL OFFICER ALUVA, ERNAKULAM DISTRICT-683 101. 4. THE MANAGER HOLY INFANT BOYS HIGH SCHOOL, VARAPUZHA, ERNAKULAM DISTRICT-683 517. 5. THE HEADMISTRESS HOLY INFANT BOYS HIGH SCHOOL, VARAPUZHA, ERNAKULAM DISTRICT-683 517. R3 BY ADV. GOVERNMENT PLEADER, SMT.MARY BEENA JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CONTD.... ## :2: WP(C).No. 14464 of 2013 (G) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS - ----------------------- - P1 : COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DTD.1.6.2010. - P2 : COPY OF THE DECISION REPORTED IN 2011(3) KLT 790, DTD.4.8.2011. - P3 : COPY OF THE GO(RT)NO.3587/2008/G.EDN. DTD.5.8.2008 OF THE GOVERNMENT. - P4 : COPY OF THE ORDER OF THE DIRECTOR DTD.12.11.2007. - P5 : COPY OF THE PROCEEDINGS OF THE DISTRICT EDUCATIONAL OFFICER DTD.16.5.2012. - P6 : COPY OF THE GO(RT)NO.3805/06/G.EDN. DTD.26.8.2006 OF THE GOVERNMENT. - P7 : COPY OF THE DECISION REPORTED IN 2013(2)KHC, DTD.19.2.2013. - P8 : COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DTD.25.9.2012. - P8(A) : COPY OF THE SENDING RECEIPT. - P9 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 23.9.14 - P10 TRUE COPY OF THE REPLY FROM PUBLIC INFORMATION OFFICER DATED 17.10. - P11 TRUE COPY OF THE DECISION REPORTED IN 2009 (3) KLT 863 RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **ANIL K. NARENDRAN, J. ================== W.P.(C.) No. 14464 of 2013 ------------------------------Dated this the 20[th] day of February, 2017** ## **JUDGMENT** The petitioner who is working as High School Assistant (Physical Science) in Holy Infant Boys High School, Varapuzha has filed this writ petition seeking a writ of certiorari to quash Ext. P1 to the extent, approval for his appointment as HSA (Physical Science) is granted only with effect from 04.12.2010, instead of 01.06.2010. The petitioner has also sought for other consequential reliefs. 2. The reliefs sought for in the writ petition are opposed by the 3[rd] respondent by filing a counter affidavit. 3. The petitioner has also filed a reply affidavit reiterating the contentions raised in the writ petition. 4. I heard arguments of learned counsel for the petitioner and learned Government Pleader appearing for respondents 1 to 3. 5. The pleadings and materials on record would show that the petitioner was appointed as HSA (Physical Science) in the school managed by the 4[th] respondent, with effect from 01.06.2010. As borne out from Ext. P1 order of appointment, the W.P. (C.) No. 14464 of 2013 2 appointment of the petitioner was in a promotion vacancy which had arisen when Smt. Jessy Varghese, who was working as HSA (Physical Science) was promoted as Headmistress. However, while granting approval for the appointment of the petitioner as HSA (Physical Science), the District Educational Officer, Aluva, the 3[rd] respondent herein, granted approval only with effect from 04.12.2010 forenoon on the ground that a protected teacher had joined duty at the School only with effect from that date. Feeling aggrieved by the same, the petitioner is before this court in this writ petition. 6. The School managed by the 4[th] respondent is a newly upgraded School. Therefore, the 4[th] respondent, the Manager is under obligation to appoint a protected teacher in terms of the agreement executed under Rule 6 (viii) of Chapter V of the Kerala Education Rules (for brevity “KER”) which is not in dispute. According to the petitioner, pursuant to the said agreement executed by the 4[th] respondent Manager, one post of HSA W.P. (C.) No. 14464 of 2013 3 (Malayalam) which arose on 01.04.2009, consequent on the retirement of Smt.P.A.Mary was reserved for accommodating a protected teacher. Though the matter was taken up with the Deputy Director of Education, Ernakulam, the 2[nd] respondent herein, at appropriate time, no protected teacher was available to fill up that vacancy. However, no protected teacher in the category of HSA (Malayalam) was available in Aluva Educational District at the relevant time. As such, the 4[th] respondent Manager has got a legal right to appoint a qualified teacher against the sanctioned post in consonance with the provisions under the KER. It was accordingly that the petitioner was appointed as HSA (Physical Science) in the School with effect from 01.06.2010. Later, a protected hand (Part time Menial) was made available on 04.12.2010, and the said person was given appointment on 01.06.2011, Therefore, the petitioner would contend that, due to non-availability of the protected hand in Aluva Educational District during the relevant time, there is no legal impediment in the W.P. (C.) No. 14464 of 2013 4 appointment of the petitioner as HSA (Physical Science) being approved by the educational authorities with effect from 01.06.2010 itself, instead of 04.12.2010. 7. In the counter affidavit filed by the 3[rd] respondent, one of the contentions raised is that, if the period of appointment of a teacher does not cover in one academic year, the appointments shall only be on daily wages. It was without considering the above fact, the then District Educational Officer approved the appointment of the petitioner. The irregularity in the appointment was noted while conducting periodical audit. It was found that the petitioner is not entitled for approval of his appointment with effect from 01.06.2011 and the Department is taking steps to revise the date of approval of his appointment from 04.12.2010 to 01.06.2011. Further, as per the provisions under Rule 6 (viii) of Chapter V of KER read with GO (P) No. 46/2006/G.Edn. dated 01.02.2006, the 4[th] respondent Manager has to appoint at least one protected hand in the vacancy arising in the School. Thus a W.P. (C.) No. 14464 of 2013 5 protected hand (Full Time Menial) was appointed on 04.12.2010. As such, the appointment of the petitioner can only be approved with effect from that date. 8. The fact that the appointment of the petitioner as HSA (Physical Science) with effect from 01.06.2010 was against a regular vacancy that had arisen due to retirement is not in dispute. If that be so, the petitioner is entitled for approval of his appointment on regular basis with effect from 01.06.2010, in view of the law laid down by the Apex Court in **State of Kerala v. Sneha Cheriyan [2013 (1) KLT 755]** . Following the said judgment, this Court has upheld the entitlement of similarly situated teachers by the judgment dated 10.12.2015 in W.P.(C.) No.20919 of 2015, followed by another judgment in WP (C) No. 10769 of 2012 dated 05.10.2016. 9. Ext.P9 and P10 documents produced by the petitioner along with the reply affidavit would show that, as on the date of appointment of the petitioner as HSA (Physical Science), ie, as on W.P. (C.) No. 14464 of 2013 6 01.06.2010 there was no protected HSA (Malayalam) in Aluva Educational District to be appointed as against the vacancy reserved for protected hand. A protected hand (Full Time Menial) was made available to the 4[th] respondent Manager only on 04.12.2010, who joined duty on 04.12.2010.. The contention of respondents 1 to 3 that the appointment of the petitioner as HSA (Physical Science) against a regular vacancy can be approved only with effect from the date of joining of the protected hand is no more available in view of the law laid down by this Court in **Nadeera T.S. v. State of Kerala [2011 (3) KLT 790]** and affirmed by the Division Bench in **State of Kerala v. S.Haseena and another [2013 (2) KHC 103]** . The Division Bench held that, till 2009 there was no obligation on the part of the Manager of aided Schools to secure list of protected teachers. Therefore, if at all any obligation cast on the Managers of the Schools to secure the list of protected teacher, it commenced only in the year 2009 by circular dated 19.11.2009, which can have only prospective W.P. (C.) No. 14464 of 2013 7 effect and not retrospective effect. As per Rule 6 (viii) of Chapter V of KER, the only obligation cast on the Managers of the aided Schools is that, they must appoint the protected teachers, whenever a list is sent. Beyond that, there is no other obligation cast on them. SLP (C) Nos. 28504-05 of 2013 as well as review petition Nos. 347-48 of 2014 filed by the State before the Apex Court also ended in dismissal. 10. In view of the law laid down by this Court in the decisions referred to above, the petitioner is entitled for the reliefs sought for. In the result, this writ petition is disposed of, setting aside the order of approval of appointment Ext. P1 order to the extent it declines approval for the appointment of the petitioner as HSA (Physical Science) from 01.06.2010, instead of granting approval only with effect from 04.12.2010. It is declared that the petitioner will be entitled for approval of the appointment as HSA (Physical Science) with effect from 01.06.2010 with all consequential W.P. (C.) No. 14464 of 2013 8 benefits in terms of the law laid down by the Apex Court and this Court in the decisions referred to supra. It is for the 3[rd] respondent to pass appropriate orders in this regard and disburse all consequential monetary benefits, which shall be done within a period of three months from the date of receipt of a certified copy of this judgment. **sd/ANIL K.NARENDRAN JUDGE** SKS //TRUE COPY// P.A. TO JUDGE