Manager, Edakkara Kolakkad A.U.P School v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** ## **WP(C).No. 19534 of 2009 (J)** **----------------------------** ## **PETITIONER(S): -------------** **MANAGER, EDAKKARA KOLAKKAD A.U.P.SCHOOL, P.O. KOLAKKAD, ATHOLI, KOZHIKODE.** ## **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.** **4. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA.** **5. THE ASSISTANT EDUCATIONAL OFFICER, KOYILANDI.** **6. ANUSHA K.P. D/O.SUKUMARAN K.V. KIZHALAPURATH HOUSE, KOLATHUR P.O., ATHOLI (VIA) KOZHIKODE.** **R1-R5 BY SENIOR GOVERNMENT PLEADER SMT.MARY RANI JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 19534 of 2009 (J)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF THE STATEMENT OF CHANGE OF STAFF IN EDAKKARA KOLAKKAD A.U.P SCHOOL** - **EXT.P2 : TRUE COPY OF THE APPOINTMENT ORDER ISSUED IN FAVOUR OF THE 6TH RESPONDENT.** - **EXT.P3 : TRUE COPY OF THE RELEVANT PAGE OF SSLC CERTIFICATE OF THE 6TH RESPONDENT.** - **EXT.P4 : TRUE COPY OF THE CERTIFICATE OF THE 6TH RESPONDENT WITH RESPECT TO THE SANSKRIT TEACHERS EXAMINATION.** - **EXT.P5 : TRUE COPY OF THE ORDER DATED 3.3.2008 ISSUED BY THE 5TH RESPONDENT.** - **EXT.P6 : TRUE COPY OF THE ORDER DATED 7.5.2008 ISSUED BY THE 4TH RESPONDENT.** - **EXT.P7 : TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.P8 : TRUE COPY OF THE ORDER DATED 25.8.2008 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P9 : TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXT.P10: TRUE COPY OF THE ORDER DATED 19.1.2009 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P11: TRUE COPY OF THE STAFF FIXATION ORDER OF EDAKKARA KOLAKKAD AUP SCHOOL FOR THE YEAR 2007-08** - **EXT.P12: TRUE COPY OF THE STAFF FIXATION ORDER OF EDAKKARA KOLAKKAD AUP SCHOOL FOR THE YEAR 2008-09.** ## **RESPONDENTS' EXHIBITS :** ## **NIL** ## **//TRUE COPY\\** **P.A TO JUDGE** **IAP** ## **ANU SIVARAMAN, J** ## **==================** ## **W.P.(C).NO.19534 OF 2009** ## **==================** Dated this the 28th day of March, 2017 ## **J U D G M E N T** Prayers in this writ petition are as follows. _i) call for the records leading to Exhibits P5,P6 and P10, peruse the same and issue a writ of Certiorari or any other appropriate writ, or order, quashing the same;_ _ii) declare that the 6[th] respondent is eligible for the appointment as a part-time Sanskrit teacher in the vacancy caused due to the retirement of Sri.C.Somanathan Nair on 31.5.2007;_ _iii) issue a writ of mandamus, or any other appropriate writ, order or direction, directing respondents 1 to 5 to approve the appointment of the 6[th] respondent as per the appointment order, Ext.P2 issued by the petitioner;_ _iv) issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case;_ ## _v) award costs of these proceedings._ 2. The petitioner, who is the Manager of the Edakkara Kolakkad A.U.P School, submits that he had appointed the 6[th] respondent as full time Sanskrit teacher in the School W.P.(C).NO.19534 OF 2009 2 with effect from 1.06.2007. Approval for the said appointment was rejected by Ext. P5 order and also by Ext. P6 order. It is submitted that the reasons stated for rejection of the approval in Ext.P5 order are as follows: a) During 2007-08 one Part time post of Sanskrit was sanctioned. Manager appointed Kum.Anusha.K.P. as a Full time Sanskrit Teacher against a Part time post of Sanskrit existed. b) Edakkara Kolakkad U.P.School was upgraded during 1983-84 and coming under the category of newly opened/upgraded school vide G.O.(P) 178/02/G.Edn. dated 28.06.2002. Protected teachers have to be deployed in the existing/arising vacancies of such schools. c) Declaration regarding 51B claimants of Chapter XIV KER and declaration regarding protected teachers were not submitted along with the proposal. d) Original and self attested copies of W.P.(C).NO.19534 OF 2009 3 qualification certificates were not produced. e) Kum.K.P.Anusha has not completed 18 years of age as on 01.01.2007. 3. The petitioner contends that the post of full time Sanskrit teacher had been sanctioned to the School on Group C diversion and not on the strength of G.O(Ms) 62/73/G.Edn dated 2.05.1973 as contended in the order of rejection. It is further stated that the petitioner had clearly mentioned in the appeal preferred by him against Ext. P5 order that he had appointed a protected teacher in the School on 31.3.1986 and she had been repatriated to join her parent school. Further, no list of any protected teacher had been forwarded by the authorities and therefore the appointment of the 6[th] respondent according to the petitioner was well justified. With regard to the condition for furnishing the declaration also the petitioner contends that since the protected teacher had already W.P.(C).NO.19534 OF 2009 4 been appointed there was no requirement for any such declaration. Learned Counsel for the petitioner places reliance in decision of the Division Bench in **State of Kerala v. Nadeera [2013(2) KLT 88]** to contend that in the absence of the list forwarded by the department the petitioner had no statutory obligation to appoint a protected teacher against the retirement vacancy. It is apparent from the pleadings and materials on record that 6[th] respondent's date of birth is 31/05/1989. Going by sub rule (2) to Rule(1) Chapter XIV A Kerala Education Act, the age of the incumbent is to be reckoned as on the first of January of the year in which her appointment is made. In the above view of the matter, I find that though the objections raised at serial no.2, 3 and 4 in Ext.P5 cannot be sustained, the objections at serial no.1 and 5 have to be answered by the petitioner. In the above view of the matter it is directed that the petitioner shall W.P.(C).NO.19534 OF 2009 5 forward a fresh proposal for approval taking note of the requirement of minimum age for appointment prescribed in the Kerala Education Act. It is further directed that the petitioner will be free to produce materials before the AEO in support of his contention that a full time post of Sanskrit had been sanctioned to the School on Group C diversion. If such documents are produced by the petitioner, orders will be passed by the 1st respondent on the proposal for approval of the 6[th] respondent's appointment in accordance with law. In case the petitioner produces evidence to show that full time post had been sanctioned on Group C diversion, approval shall be granted for the appointment as a full time post and in case such evidence is not forthcoming, the Assistant Educational Officer shall grant approval to the 6[th] respondent's appointment as part time Sanskrit teacher with effect from the date on which she is eligible for the same. Orders shall be passed by the Educational W.P.(C).NO.19534 OF 2009 6 Authorities within a period of two months from the date of receipt of a copy of this judgment. The impugned orders are set aside. Sd/- **ANU SIVARAMAN JUDGE** //True Copy\\ P.A to Judge IAP