K.V. Mansoor v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** ## **WP(C) NO. 1507 OF 2013** ## **PETITIONER:** **K.V.MANSOOR, AGED 25 YEARS,** **S/O.ABDUL RAHMAN, PHYSICAL EDUCATION TEACHER, CRESECENT HIGH SCHOOL, OZHUKUR, P.O. OLUKUR, (VIA) MONGAM, MALAPPURAM DITRICT 673642.** **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, SECERTARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, DOWN HILL, MALAPPURAM DISTRICT-676519.** - **4 DISTRICT EDUCATIONAL OFFICER, MALAPPURAM DISTRICT-676519.** - **5 THE MANAGER, CRESCENT HIGH SCHOOL, OZHUKUR, P.O.OLUKUR, (VIA) MONGAM, MALAPPURAM DISTRICT-673642.** **BY ADVS. SRI.S.GANESH SRI.P.SREEKUMAR SRI.P.S.SIDHAN SRI.K.N.SATHEESAN SRI. P.M.MANOJ – SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 1507 OF 2013** **-2-** ## **JUDGMENT** A Physical Education Teacher working in “Crescent High School”, Malappuram, has approached this Court through this writ petition, impugning Exts.P7 and P8 orders issued by the Additional Director of Public Instructions and the Government of Kerala respectively, denying approval to his appointment from 04.06.2007, on the ground that the same was illegal, because the Manager could have appointed only a 'Protected Teacher' in the vacancy to which the petitioner had been accommodated. 2. The petitioner says that even though the Authorities say that they had forwarded a list of protected teachers to the Manager, for being appointed to the vacancy in question, nothing has been placed on record in substantiation; and he asserts that no such list was ever forwarded. He ## **WP(C) NO. 1507 OF 2013** **-3-** thus prays that Exts.P7 and P8 be set aside relying upon the judgments of this Court **Nadeera** **v. State of Kerala** [2011 (3) KLT 790] and **Moosakutty v. District Educational Officer** [2009 (3) KLT 863]. 3. I have heard Smt.P.A.Jenzia – learned counsel for the petitioner and Sri.P.M.Manoj – learned Senior Government Pleader appearing for the official respondents. 4. Sri.P.M.Manoj justified Ext.P8 by arguing that the School in question is a “newly upgraded one” and therefore, that as per the mandate of the Government Order, bearing No.GO(P)No.46/2006/G.Edn dated 01.02.2006, the Manager was obligated to appoint a 'Protected Teacher' to the vacancy. He submitted that, at the time when the petitioner was appointed by the Manager, no protected teacher had been working in the School in question and therefore, that the Authorities were justified in ## **WP(C) NO. 1507 OF 2013** **==> picture [22 x 9] intentionally omitted <==** rejecting his request for approval. He, therefore, prayed that this writ petition be dismissed. 5. I have examined Ext.P8, which is the order impugned in this case. 6. There is no doubt that in Ext.P8, the Government records that the Deputy Director of Education (DDE), Malappuram, has reported that there were 16 protected teachers awaiting deployment, and that this position had been communicated to all the Managers through the Educational Officers concerned. 7. Noticing this specific statement in Ext.P8, I direct the Senior Government Pleader - Sri.P.M.Manoj, to produce a copy of the letter stated to have been issued by the DDE to the Manager of the School in question containing the list of 16 protected teachers. 8. However, the learned Senior Government today submitted that though the copy of the letter ## **WP(C) NO. 1507 OF 2013** **-5-** is not available, it has been mentioned in the counter affidavit, filed on behalf of the 1[st] respondent, that the said letter bears No.B3/23234/06(1) dated 28.11.2006. 9. That being so said, as I have already noticed above, in Ext.P8 the Government only records that the DDE had communicated to all the Managers through the Educational Officers concerned. Therefore, what is crucially relevant is whether the Manager of the School had been specifically addressed by the educational Authority concerned, forwarding him the list of 16 protected teachers, as was recorded to be available at that time. Even in the counter affidavit, the averment is not to the effect that the 5[th] respondent – Manager, was communicated directly; but that the jurisdictional educational Officers communicated to “all Managers” through the office letter bearing No. B3/23234/06(1) dated ## **WP(C) NO. 1507 OF 2013** ## **-6-** 28.11.2006. 10. Obviously, therefore, it is unclear whether any letter was ever issued to the 5[th] respondent – Manager, by any competent educational Authority, as has been stated in Ext.P8. This suspicion is certainly fortified since the official respondents admit that copy of the said letter is not available and cannot, therefore, be produced. In the absence of cogent evidence being demonstrated by the respondents to such effect, I am certain that the declarations of law made by this Court in **Nadeera** (supra) and **Moosakutty** (supra) would apply to the facts in this case also. In the afore circumstances, I allow this writ petition and set aside Exts.P7 and P8; with a consequential direction to the 3[rd] respondent - District Educational Officer (DEO), to grant approval to the petitioner’s appointment as ## **WP(C) NO. 1507 OF 2013** **-7-** Physical Education Teacher in “Crescent High School”, Malappuram with effect from 04.06.2007 against the retirement vacancy. The afore exercise shall be completed by the DEO, as expeditiously as is possible, but not later than one month from the date of receipt of a copy this judgment; and all resultant benefits will be made available to the petitioner, including for approval of his subsequent spells on substantive basis, without any avoidable delay, but not later than a further period of three months thereafter. **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C) NO. 1507 OF 2013** ## **-8-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 04/06/2007 OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE GO(RT) NO. 3587/08/G.EDN DATED 05/08/2008 OF THE GOVERNMENT. EXHIBIT P3 TRUE COPY OF THE GO(P) NO.178/2002/G.EDN. DATED 28/06/2002 OF THE GOVERNMENT. EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO. 74101/J2/2004/G.EDN. DATED 24/01/2005 OF THE GOVERNMENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO. 18986/2009-P DATED 09/07/2010. EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 1993 (2) KLT SHORT NOTES 27 CASE NO. 28 DATED 02/08/1993. EXHIBIT P7 TRUE COPY OF THE ORDER NO. EM2/28017/2010/DPI/K.DIS. DATED 20/09/2010 OF THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE GO(RT) NO. 6054/2012/G.EDN. DATED 18/12/2012 OF THE GOVERNMENT. EXHIBIT P9 TRUE COPY OF THE ORDER NO. K.DIS. 66/2012/C DATED 09/01/2012 OF THE ASSISTANT EDUCATIONAL OFFICER. EXHIBIT P10 TRUE COPY OF THE ORDER NO. K.DIS. 67/2012/C DATED 09/01/2012 OF THE ASSISTANT EDUCATIONAL OFFICER. EXHIBIT P11 TRUE COPY OF THE ORDER NO. A4/8046/11 DATED 16/05/2011 OF THE DISTRICT** ## **WP(C) NO. 1507 OF 2013** **-9-** ## **EDUCATIONAL OFFICER.** ## **EXHIBIT P12** **TRUE COPY OF THE ORDER NO. C- 2164/2010/K.DIS DATED 14/12/2011 OF THE ASSISTANT EDUCATIONAL OFFICER.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE