Laly Varghese v. The Manager, Corporate Management of Schools, Society of the Order of Sacred Transfiguration (Catholicate High School), Pothukallu; The Principal Catholicate High School, Pothukallu; The District Educational Officer, Vandoor; The Director of Public Instructions, Jagathy; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942** ## **WP(C).No.4965 OF 2011(U)** ## **PETITIONER:** **LALY VARGHESE, W/O.K.A.JOSEPH,** **AGED 40 YEARS, KAVUMUKKATHU, VHOODANAM PO,, NILAMBUR, MALAPPURAM DISTRICT.** **BY ADVS.** **SRI.JOHNSON MANAYANI SRI.BENHUR JOSEPH MANAYANI** ## **RESPONDENTS:** - **1 THE MANAGER, CORPORATE MANAGEMENT OF SCHOOLS, SOCIETY OF THE ORDER OF SACRED TRANSFIGURATION, MOUND TABOR,PATHANAPURAM PO, KOLLAM DISTRICT-689 695.** - **2 THE PRINCIPAL CATHOLICATE HIGH SCHOOL, POTHUKALLU, MALAPPURAM DISTRICT-679 334.** - **3 THE DISTRICT EDUCATIONAL OFFICER VANDOOR, MALAPPURAM-679 001.** - **4 DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, TRIVANDRUM-679 001.** - **5 STATE OF KERALA REP.BY ITS SECRETARY TO GENERAL EDUCATION SECRETARIAT, TRIVANDRUM-695 001.** - **R1 BY ADV. SRI.BABU VARGHESE SR.** - **R1 BY GOVERNMENT PLEADER R1 BY ADV. SRI.JOHNSON T. JOHN** ## **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.4965 OF 2011 2** ## **JUDGMENT** The petitioner says that she was appointed as a Full Time Menial (FTM) in the services of the “Catholicate High School”, Pothukal, Malappuram District - which is managed by the 1[st] respondent - as per Ext.P1, with effect from 27.5.2005; but that the Educational Authorities refused to grant her approval from that date saying that said vacancy ought to have been filled up by the Manager only through a 'Protected Teacher', since the School in question was a 'newly opened one'. 2. The petitioner says that she, therefore, took up the matter in the hierarchy of officers under the Kerala Education Act and Rules, which has now culminated in Ext.P10, wherein, it has been held that she is not liable to be approved with effect from the date of her initial appointment, but only with effect from **WP(C).No.4965 OF 2011 3** 03.08.2007, since the Manager had by then appointed another protected teacher by name Sri.K.P.Muhammed. 3. The petitioner alleges that Ext.P10 is egregiously improper, since no list of protected teacher had been made available to the Manager in the year 2005, so as to enable him to appoint such a teacher and therefore, that going by the declarations of this court in _**Nadeera v. State of Kerala**_ _**[2011(3) KLT 790],**_ her appointment in the year 2005 cannot be now found to be in error. The petitioner, therefore, prays that Ext.P10 be set aside and the Authorities be directed to grant approval with effect from the date of her initial appointment, namely 27.05.2005. 4. In addition to the afore submissions of the the petitioner, her learned counsel - Sri.Johnson Manayani, **WP(C).No.4965 OF 2011 4** submitted that though his client has been approved with effect from 03.08.2007, no steps have been taken by the respondent to pay her salary even from that date; and that this appears to be on account of the fact that an objection has been raised that she was overaged as on that date. Sri.Johnson Manayani submitted that his client was within the requisite age limit when she was originally appointed in the year 2005 and that it is only because her approval was granted solely from 2007, that this objection has arisen. 5. Sri.Johnson Manayani submitted that, in any event of the matter, this objection is now irrelevant because Government has granted age relaxation to his client, as is evident from its order bearing No.GO(MS)No.107/2011/G.Edn. dated 12.5.2011, produced along with memo dated 13/10/2011 filed by the learned Government **WP(C).No.4965 OF 2011 5** Pleader. He, therefore, prayed that Ext.P10 be set aside and that the Authorities be directed to approve his client with effect from the date of her initial appointment. 6. In response, the learned Senior - Government Pleader Sri.P.M.Manoj, submitted that the petitioner's approval has been granted from 2007 because, by then the Manager had appointed a protected teacher by name Shri.Muhammed. He submitted that since the School is a “newly opened” one, it was not permissible for the Manager to have appointed any other teacher other than a protected one to that vacancy; and therefore, that the petitioner's appointment was irregular and illegal. He, therefore, prayed that this writ petition be dismissed. **==> picture [342 x 12] intentionally omitted <==** counsel representing the Manager of the School, submitted that his client had **WP(C).No.4965 OF 2011 6** appointed the petitioner in the year 2005 because the Educational Authorities had not forwarded any list of the protected teachers in the Education District for being appointed to the said vacancy and further because there were no such teachers available for absorption at that relevant time. He, therefore, prayed that this writ petition be allowed, as prayed for by the petitioner. 8. I have considered the afore submissions and have also examined the materials and documents available on record very carefully. 9. It is without doubt that the petitioner was appointed initially by the Manager of the School on 27.05.2005, through Ext.P1. This appointment had been objected to by the Educational Authorities solely because the school was a “newly opened” one **WP(C).No.4965 OF 2011 7** and consequently, as per the extant Government Orders, the vacancy ought to have been filled up by a protected teacher. 10. However, it is the specific contention of the Manager that no list of protected teachers has been forwarded to him by the Educational Authorities and that no such teacher was available in the Education District for absorption at that relevant time. This vital aspect has not been even adverted to by the Government in Ext.P10 order; but they have mechanically gone ahead and said that since the school is a “newly opened” one, the vacancy in question could have been filled up only through a protected teacher. 11. The question whether there was any such list of protected teachers forwarded to the Manager or whether there were any protected teacher available for absorption, **WP(C).No.4965 OF 2011 8** have not been looked into or answered in Ext.P10; and I, therefore, cannot find favour with it in any manner whatsoever. 12. That said, since the objection against the petitioner's age has now been resolved through Government Order dated 12.5.2011 referred above, I am of the view that she should be considered for the benefit of being approved with effect from the date of her initial appointment. In the afore circumstances, I order this writ petition and set aside Ext.P10; with a consequential direction to the 3[rd] respondent – District Educational Officer to reconsider the proposal for approval of the petitioner based on Ext.P1 order and issue appropriate orders thereon, as expeditiously as is possible but not later than three months from the date of receipt of a copy of the judgment. **WP(C).No.4965 OF 2011 9** It is needless to say that once orders are issued in terms of the afore directions, all consequential benefits shall be disbursed to the petitioner within a period of three months thereafter. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** MC/22.2.2021 **WP(C).No.4965 OF 2011 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE FIRST RESPONDENT DT.27.5.2005.** - **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE REVISION PETITION FILED BY THE 1ST RESPONDENT BEFORE THE 5TH RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT APPROVING THE APPOINTMENT OF THE PETITIONER'S COLLEAGUE SMT.SHINY MATHEW DT.7.12.2009** - **EXHIBIT P6 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR EDUCATION DT.11.3.2009** - **EXHIBIT P7 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DT 27.5.2010** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN W.P(C)16311 OF 2010 DATED 10.6.2010** - **EXHIBIT P9 TRUE COPY OF THE NOTES OF ARGUMENT FILED BEFORE THE 5TH RESPONDENT DT.18.11.2010** - **EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DT.30.12.2010** - **EXHIBIT P11 TRUE COPY OF THE PETITIONER'S S.S.L.C.PAGES NO.1** - **EXHIBIT P12 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT THROUGH PROPER CHANNEL DATED 10.1.2011** - **EXHIBIT P13 TRUE COPY OF THE LETTER FROM THE THIRD RESPONDENT TO THE 5TH RESPONDENT DT.17.1.2011.**