MANOJ VARGHESE v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936** ## **WP(C).No. 2120 of 2013 (L)** **--------------------------------------** ## **PETITIONER:** - **-------------------** **MANOJ VARGHESE, AMBALATHUM KADAVIL HOUSE, AZHUVAPALAM P.O., KONNI, PATHANAMTHITTA DISTRICT-689 691, PART-TIME LOWER GRADE (HINDI) TEACHER, GEORGE JOSEPH MEMORIAL UPPER PRIMARY SCHOOL, KALLERI P.O., KONNI, PATHANAMTHITTA DISTRICT-689 691.** **BY ADVS.SRI.M.R.ANISON, SMT.K.P.GEETHA MANI, SMT.P.A.RINUSA.** ## **RESPONDENTS:** **-----------------------** ## **1. STATE OF KERALA,** - **REP.BY ITS SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA-689 645.** **4. THE ASSISTANT EDUCATIONAL OFFICER, KONNI, PATHANAMTHITTA DISTRICT-689 691.** ## **5. THE MANAGER,** - **GEORGE JOSEPH MEMORIAL UPPER PRIMARY SCHOOL, KALLERI P.O., KONNI, PATHANAMTHITTA DISTRICT-689 691.** **R1 TO R4 BY SR.GOVERNMENT PLEADER SRI. MANOJ.P.KUNJACHAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.2120/2013 - L:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 : COPY OF THE ORDER O.B1-8641/05/K.DIS. DTD.26.4.2006.** - **P2 : COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DTD.22.7.2006.** - **P3 : COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DTD.5.2.2007.** - **P4 : COPY OF THE ORDER DTD.1.9.2007 ISSUED BY THE 4TH RESPONDENT.** - **P5 : COPY OF THE ORDER BEARING NO.B1-11063/2007, DTD.14.12.2007.** - **P6 : COPY OF THE ORDER NO.F3/50300/08/K.DIS. DTD.13.8.2008.** - **P7 : COPY OF THE RELEVANT PAGES OF THE LIST OF PROTECTED TEACHERS MAINTAINED BY THE DEPUTY DIRECTOR OF EDUCATION (UNDER RIGHT TO INFORMATION ACT).** - **P8 : COPY OF THE LETTER DTD.19.10.2011 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.** - **P9 : COPY OF LETTER DTD.21.1.2012 ISSUED BY THE 1ST RESPONDENT.** - **P10: COPY OF JUDGMENT DTD.8.6.2012 IN W.P.(C). NO.03288/2012.** - **P11: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER EXCLUDING ANNEXURES DTD.5.10.2012.** - **P12: COPY OF G.O(RT)NO.5310/2012/G.EDN. DTD.5.11.2012.** - **P13: COPY OF THE ORDER DTD.8.10.2012 ISSUED BY THE 4TH RESPONDENT.** - **P14: COPY OF THE STAFF FIXATION ORDER OF THE SCHOOL DURING THE ACADEMIC YEAR 2005-2006.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.2120 OF 2013** ......................................................................... **Dated this the 8[th] July, 2014** ## **J U D G M E N T** Non-approval of the appointment of the petitioner as parttime Lower Grade (Hindi) Teacher in the 5[th] respondent School/George Joseph Memorial Upper Primary School, in respect of a leave vacancy from 01.06.2005 to 30.03.2006, (followed by the appointment against the regular vacancy from 01.06.2007), which came to be rejected by the 3[rd] respondent/DEO as per separate orders and confirmed by the higher authorities, forms the subject matter of challenge in this writ petition. 2. The sequence of events reveals that, the petitioner was appointed as a Lower Grade (Hindi) Teacher in the leave vacancy as aforesaid, occurred in the 5[th] respondent's School and thereafter, he was given regular appointment with effect from 01.06.2007. The rejection of the initial appointment by the 4[th] respondent/AEO, as per order dated 18.06.2005 was challenged by way of Appeal before the 3[rd] respondent, who set aside the impugned order as per Ext.P1 dated 26.04.2006 and directed the 4[th] respondent to have it reconsidered, which however did not turn to be fruitful as the 4[th] respondent rejected the same again holding that, the petitioner's School was a newly **2** ## **W.P.(C)No.2120 OF 2013** sanctioned/opened one and hence a 'protected teacher' had to be appointed in place of the petitioner. 3. Being aggrieved of the said order, the Manager of the School (5[th] respondent) filed a Revision Petition, which was rejected by the 2[nd] respondent/DPI, as per order dated 05.02.2007, confirming the finding and reasoning of the 4[th] respondent/AEO. Thereafter, regular appointment given to the petitioner, with effect from 01.06.2007, was rejected by the 4[th] respondent as per Ext.P4 order dated 01.09.2007, mainly pointing out that: (i) 5[th] respondent's School was a newly upgraded School and hence, a protected Teacher had to be appointed (ii) the School was an uneconomic School during 2007-08; and - (iii) previous appointment (in respect of the leave vacancy) was not approved. 4. Met with the situation, the said order was challenged by way of appeal, which was dismissed by the 3[rd] respondent as per Ext.P5 order dated 14.12.2007. The Revision Petition also came to be rejected by the 2[nd] respondent as per Ext.P6 order dated **W.P.(C)No.2120 OF 2013** **3** 13.08.2008. Pursuant to the above proceedings, the service of the petitioner was terminated by the 5[th] respondent on 27.08.2008 and a 'protected Teacher' came to be appointed. The petitioner was told by the 5[th] respondent that, the said respondent had already moved the Government by filing a Revision Petition and the petitioner's case would be considered only subject to the result of the Revision Petition. 5. As nothing turned to be positive for quite long, the petitioner approached the Government by filing a Revision Petition on 08.07.2011, followed by a representation dated 20.07.2011, preferred before the concerned Minister. After considering the said representation, Ext.P9 order dated 21.01.2012 was issued by the 1[st] respondent/Secretary to Government, directing the 2[nd] respondent to consider the representation in the light of the relevant Government Order referred to therein, in respect of the Teachers' package. Since the petitioner was not satisfied with the course and events, he approached this Court by filing WP(C) No.13288 of 2012, which was disposed of as per Ext.P10 judgment dated 08.06.2012, directing the Government to consider the Revision Petition (dated 08.07.2011) preferred by the petitioner. The petitioner submitted **W.P.(C)No.2120 OF 2013** **4** Ext.P11 Argument Notes as well. But the Revision Petition came to be dismissed as per Ext.P12 order dated 05.11.2012, which in turn is under challenge in this writ petition. 6. Though the writ petition was filed as early as on 21.01.2013, no Counter Affidavit has been filed so far. 7. Heard the learned Government Pleader as well at length. 8. During the course of hearing, it is brought to the notice of this Court by the learned counsel for the petitioner that, there is absolutely no rhyme or reason for rejecting the initial appointment given to the petitioner in a leave vacancy, for the fact that, no 'protected Teacher' was available at the relevant time, as discernible from Ext.P7 list furnished by the Deputy Director, in respect of the concerned Sub District. The factual position in this regard is confirmed by the 2[nd] respondent as well, vide Ext.P8 letter dated 19.10.2011, addressed to the 1[st] respondent, pointing out that no 'protected Teacher' was available in the Sub District at the time of the appointment of the petitioner and hence, the scope of consideration was only with reference to the economic status of the School in the light of the relevant Government Order. 9. By virtue of the law declared by this Court as per the **5** ## **W.P.(C)No.2120 OF 2013** decision reported in _**Moosakutty V. D.E.O., Wandoor [2009 (3) KLT 863]**_ , _**protected Teacher to be appointed must be available in the concerned Sub District and not anywhere else.**_ Since non-availability of 'protected Teacher' is evident from Ext.P7 list furnished by the Deputy Director of Education, which stands confirmed by the 2[nd] respondent/Director of Public Instruction vide Ext.P8, it has to be held that no Protected teacher was available in the concerned Sub District at the time of appointment of the petitioner in the leave vacancy for the period from 01.06.2005 to 30.03.2006. This being the position, rejection of the said appointment by the 4[th] respondent vide Ext.P2, as confirmed by the second respondent vide order dated 05.02.2007 cannot but be assailed and intercepted. Though it remains a fact that the second respondent had passed an order rejecting the Revision Petition preferred by the Manager against Ext.P2 order as early as on 05.02.2007, the proceeding with regard to regular appointment as well, was rejected by the 4[th] respondent on 01.09.2007, followed by subsequent orders, by way of Exts.P5 and P6, passed by the respondents 3 and 2 respectively on the relevant dates. Admittedly, the petitioner filed Revision Petition only years thereafter on 08.07.2011, a **W.P.(C)No.2120 OF 2013** **6** copy of which has been produced as Ext.P8 along with W.P.(C) No.13288 of 2012. The said Revision Petition was a joint Revision Petition challenging both the impugned orders (ie against the order dated 05.02.2007 rejecting the leave vacancy appointment and also against the order dated 13.08.2008 passed by the DPI confirming the order of the AEO). This Court vide Ext.P10 judgment directed the Government to consider Ext.P8 Revision Petition mentioned therein and to pass appropriate orders, which led to Ext. P12 dated 05.11.2012. 10. The long delay on the part of the petitioner is not referred to as a ground from the part of the Government while passing Ext.P12 order and as such, this Court finds that the same shall not bar the way of the petitioner in pursuing the proceedings further. The net result is that, if the impugned proceedings with regard to initial appointment in the leave vacancy are no longer in existence and appointment of the petitioner is to be approved, then on completion of the tenure, the petitioner will acquire the status of a Rule 51A claimant. As a natural consequence, further benefits flowing by virtue of such status shall conferred upon the petitioner with regard to the claim for appointment against regular vacancy. **7** ## **W.P.(C)No.2120 OF 2013** 11. Coming to the factual scenario, it is admitted from the part of the petitioner that regular vacancy came to be filled up by the 5[th] respondent by accommodating somebody else. If the petitioner is to be given appointment against a regular vacancy by virtue of such deemed claim under Rule 51A of Chapter XIV-A KER, the person already appointed by the 5[th] respondent/Manager ( i.e. the concerned protected teacher) has necessarily to be sent out. Since the petitioner has not chosen to implead the person appointed by the 5[th] respondent in the party array, no such relief can be extended to the petitioner for granting a declaration that the said appointment is bad in law and to accommodate the petitioner in the place of such teacher. In this context, it is to be noted that the learned Counsel for the petitioner has also pointed out that the 'protected teacher' appointed by the 5th respondent has already left the 5[th] respondent's school, having already been appointed in the parent school and hence that the vacancy is still in existence. This is a matter to be considered by the 4th respondent. It is also relevant to note that the 5[th] respondent school became uneconomic only in the year '2007-08' and that, there was no contingency with regard to the year 2005-06, as borne by **8** ## **W.P.(C)No.2120 OF 2013** Ext.P14 Staff Fixation order, produced from the part of the petitioner. 12. Accordingly, the impugned orders are set aside. The 4[th] respondent is directed to to re-consider the matter in the light of the above observation, particularly in the light of the law declared by this Court in _**Moosakutty vs. D.E.O., Wandoor**_ **(2009(3) KLT 863)** and in _**Ciji P. Jose vs. State of Kerala** (_ **2012 (1) KLT 867)** , of course, after giving an opportunity of hearing to the petitioner, 5[th] respondent and also to the concerned teacher, if any, who is in occupation of the particular post. The proceedings shall be finalised at the earliest, at any rate, within three months. The writ petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE.** _lk_