Latha K.K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938** ## **WP(C).No. 20675 of 2013 (H)** ## **----------------------------** ## **PETITIONER: ----------** ## **LATHA.K.K, H.S.A.(MATHES) S.N. TRUST HIGHER SECONDARY SCHOOL, NEDUVERMPOD P.O. CHENGANNUR, ALAPPUZHA-689508.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S): --------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** **3. DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA-680001.** **4. DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.** **5. THE MANAGER, S.N. TRUST SCHOOLS, KOLLAM-691001.** - **ADDL R6,R7 IMPLEADED** **6. DISTRICT EDUCATIONAL OFFICER, CHERTHALA - 688 524.** **7. DISTRICT EDUCATIONAL OFFICER, MAVELIKARA - 690 101.** - **ADDL R6,R7 ARE IMPLEADED AS PER ORDER DATED 4/2/2014 IN IA NO 1675/2014.** **R1-R4,R6,R7 BY GOVERNMENT PLEADER SRI BEJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 20675 of 2013 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1. TRUE COPY OF THE APPOINTMENT ORDER DATED 17-10-2001 THE PETITIONER.** - **P2. TRUE COPY OF THE APPOINTMENT ORDER DATED 14-6-2002.** - **P3. TRUE COPY OF THE APPOINTMENT ORDER DATED 17-9-2002.** - **P4. TRUE COPY OF THE ORDER DATED 9-6-2003 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **P5. TRUE COPY OF THE ORDER DATED 5-7-2004 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER** - **P6. TRUE COPY OF G.O (MS) NO. 19-09 DATED 9-2-2009.** - **P7. TRUE COPY OF THE REVISION PETITION DATED 9-11-2009 SUBMITTED BEFORE THE GOVERNMENT.** - **P8. TRUE COPY OF G.O. (RT) NO. 3169/2011 DATED 5-8-2011.** - **P9. TRUE COPY OF THE APPOINTMENT ORDER DATED 7-7-2004 CONTAINING ENDORSEMENT DATED 1-9-2011.** - **P10. TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.** - **P11. TRUE COPY OF THE JUDGMENT DATED 17-1-12. IN WPC NO. 14278/2009** - **P12. TRUE COPY OF THE JUDGMENT DATED 12-10-12 IN WPC NO. 22236/12.** - **P13. TRUE COPY OF G.O. (RT) NO. 1443/2013 DATED 26-3-2013.** - **P14. TRUE COPY OF THE JUDGMENT DATED 30.10.2013 IN WPC NO 23519/2013.** - **P15. TRUE COPY OF G.O. (RT) NO.3445/2014/G.EDN DATED 27.8.2014.** ## **RESPONDENT(S)' EXHIBITS NIL** ## **-----------------------** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **K.V.** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.20675 of 2013 = = = = = = = = = = = = = = = Dated this the 10[th] day of November, 2016** ## **JUDGMENT** 1.The petitioner claims that the petitioner is entitled to appointment as HSA (Maths) for the period from 24.06.2003 to 01.06.2006. The petitioner's claim is based on an appointment granted to her in a regular vacancy of HSA (Maths). The approval of her appointment was denied on the ground that the protected teacher had not been appointed in the school. The petitioner had taken up the matter in revision and Exhibit P7 revision petition was pending before the Government. By Exhibit P8 proceedings dated 05.08.2011 the Government considered the factual aspects and found that the petitioner had been appointed in the SNTHSS Cheriyanad. It is stated in Exhibit P8 Government Order that a protected teacher was working in the said school from 19.10.2004 to 4.10.2007. It was also found that the petitioner was senior to one Smt.P.M.Bindu, HSA (Maths), who was granted approval with effect from 24.06.2003. However, the appointment of the petitioner was approved with effect from 01.02.2006 giving W.P.(C).No.20675/13 2 her the benefit of GO (MS) No.19/2009 G.Edn. dated 09.02.2009. By Exhibit P12 judgment dated 12.10.2012 the Government was directed to consider Exhibit P7 revision petition preferred before it. Exhibit P13 order has then been issued stating that the SNTHSS, Cheriyanad where the petitioner was working is a newly opened school. The management was bound to appoint at least one protected teacher during the period. Hence the appointment of the petitioner for the period from 24.06.2003 to 01.06.2006 cannot be approved. - 2.Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. - 3.The learned counsel for the petitioner would contend that the Government had been specifically directed to consider the approval of appointment of the petitioner in view of the binding decisions of this Court in **Moosakutty v. District Educational Officer, Wandoor** [2009 (3) KLT 863], **Nadeera** W.P.(C).No.20675/13 3 - **v. State of Kerala** [2011 (3) KLT 790] and **Unninarayanan** **v. State of Kerala** [2009 (2) KLT 604]. This Court had in the said decisions unequivocally held that in cases of appointments made in newly opened or upgraded schools, approval of appointment can be rejected on the ground that protected teacher had not been a appointed only if it can be reliably shown that the Deputy Director of Education had made available a list of protected teachers in the subject to the Manager before such appointment was made. In the instant case it is contended that Exhibit P8 would go to show that the Government itself had categorically found that a protected teacher was working in the SNTHSS, Cheriyanad from 19.10.2004 to 4.10.2007. Further nowhere in any of the orders passed by the educational authorities was there a plea that the DDE had, as a matter of fact, made available a list of protected teachers available for appointment against the post to which the petitioner was appointed. In the above circumstances, it is contended that Exhibit P13 order is completely illegal and unsustainable. It is contended that W.P.(C).No.20675/13 4 going by the decision of a Division Bench of this Court in **Nadeera** 's case (supra) the petitioner is entitled for approval of appointment for the period from 24.06.2003 to 01.06.2006. - 4.The learned Government Pleader would contend that the statement filed by the 3[rd] respondent contains a contention that “the Deputy Director has already furnished the list of protected hands to the Manager for appointment”, but the 5[th] respondent had appointed the petitioner without looking into the list. It is therefore contended that rejection of approval for the period in question by Exhibit P13 order was not illegal and void. - 5.I have considered the contentions advanced on either side. It is clear from a reading of Exhibit P8 which was rendered on a representation preferred by the petitioner that the factual aspect as to the engagement of the protected teacher in the school where the petitioner was appointed had been noticed by the Government itself. It is further stated in Exhibit P8 that W.P.(C).No.20675/13 5 the Manager has reserved a post of HSA in Malayalam for the appointment of a protected teacher. It was on this basis that the petitioner had been granted approval for her appointment with effect from 01.02.2006. The petitioner's revision against orders rejecting approval for the earlier periods was pending before the Government. By Exhibit P12 judgment the Government was specifically directed to consider the claim of the petitioner for approval with reference to the binding decisions of this Court. However, in Exhibit P13 order, no such consideration is evident. Apart from making a recital of the facts of the case, as pleaded in the revision petition, the Government has only stated that since the school is a newly opened school, the vacancies to which the petitioner was appointed would have to have been filled up only by appointment of a protected teacher. In none of the Government Orders or the orders issued by the educational authorities is there a contention that the DDE had forwarded a list of protected teachers to the manager for appointment at the relevant point in time, that is, as on the date on which the W.P.(C).No.20675/13 6 petitioner claims for their approval. In the statement of the 3[rd] respondent also, no details as regards the date on which the list of protected teachers are available. In any view of the matter, such a contention made in the statement cannot be made out to be consideration of the petitioner's case, as was directed by this Court in Exhibit P12 judgment. In the absence of any details as to the date on which the list was forwarded, I am of the view that the blank statement made by the 3[rd] respondent, which is not even on an affidavit, cannot be relied upon to deny the benefits to the petitioner. 6. In the above view of the matter, Exhibit P13 order which does not disclose any consideration of the claim made by the petitioner as was directed in Exhibit P12 judgment, is set aside. In the facts and circumstances of the instant case, I am of the view that no useful purpose will be served by relegating the petitioner to the Government for further consideration of the issue. The contentions raised by the writ petitioner is covered in her favour by a judgment of this Court in **Nadira** 's W.P.(C).No.20675/13 7 case (supra) since there is no reliable assertion or contention in any of the orders that the DDE had forwarded a list of protected teachers eligible for appointment as HSA (Maths) to the Manager as on the date of appointment of the petitioner, I am of the view that the orders rejecting approval to the petitioner's appointment with effect from 24.06.2003 cannot stand. In that view of the matter, the impugned orders are set aside. Additional respondents 6 and 7 are directed to pass orders approving the appointment of the petitioner from 24.06.2003 to 01.06.2006 on a time scale of pay and to disburse all consequential benefits to the petitioner within a period of four months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **sd/-** **Anu Sivaraman, Judge** sj11/11