Mohammed Ashraf P.A. s/o Abdulkhader Kunju v. State of Kerala and others

**WP(C).No.12608 OF 2010(A)** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** **WP(C).No.12608 OF 2010(A)** ## **PETITIONER/S:** **MOHAMMED ASHRAF P.A. S/O.ABDULKHADER KUNJU, LOWER PRIMARY SCHOOL, ASSISTANT, A.S.M.L.P. SCHOOL, PURAKKAD,, ALAPPUZHA DISTRICT.** **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**SECRETARY TO GOVERNMENT,, GENERAL EDUCATION**| ||**DEPARTMENT,, SECRETARIAT, TRIVANDRUM.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTION**| ||**JAGATHY, TRIVANDRUM - 14.**| |**3**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**AMBALAPUZHA, ALAPPUZHA DISTRICT.**| |**4**|**THE MANAGER A.S.M.L.P. SCHOOL**| ||**PURAKKAD,ALAPPUZHA DISTRICT.**| ||**R1 BY GOVERNMENT PLEADER**| ||**R1 BY ADV. SRI.K.A.MANZOOR ALI**| **GP N.B SUNIL NATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2020, THE COURT ON 10-02-2020 DELIVERED THE FOLLOWING:** **WP(C).No.12608 OF 2010(A)** **2** ## **JUDGMENT** ## **Dated this the 10th day of February 2020** Heard Adv.V.A Muhammed for petitioner and learned Government Pleader N.B.Sunil Nath for respondents 1 to 3. 2. Petitioner was appointed as L.P.S.A. with effect from 01.06.2005 by the Manager, A.S.M.L.P School, Purakkad, Alappuzha/4[th] respondent. 3[rd] respondent through Ext.P4 reference No.D/3782/08/D.Dis dated 04.02.2009 approved the appointment of petitioner with effect from 01.06.2005. The case of petitioner is that while the petitioner was appointed on 01.06.2005 there was no protected L.P.S.A. in Ambalapuzha Educational Sub Division for appointment in 4[th] respondent/school. Therefore, 4[th] respondent/Manager was free to appoint a fresh hand as L.P.S.A. on 01.06.2005. The petitioner th claims to have been continuously working in 4 respondent School from 01.06.2005 onwards. For the purpose of disposing of **WP(C).No.12608 OF 2010(A)** **3** the present writ petition the other admitted details need not be stated, except to burden the judgment without a purpose. This Court, in W.P.(C) No.33885/2009 filed by A.Banasir, A.S.M.L.P.S Purakkad directed the 1[st] respondent herein to take a decision on a representation submitted by the petitioner (A.Banasir) therein and filed in the said writ petition as Ext.P4 within the reasonable time. The 1[st] respondent issued Ext.P5 purportedly in compliance with the directions issued by this Court in W.P.(C) No.33885/2009. The petitioner herein was not arrayed as one of the respondents in W.P.(C) No.33885/2009. Similarly when the 1[st] respondent considered and disposed of the representation filed by the writ petitioner therein, the petitioner herein was not impleaded as one of the parties before the 1[st] respondent, much less a notice was issued to petitioner. The 1[st] respondent through Ext.P5 dated 09.03.2010, in purported exercise of 1[st] respondent’s revisional jurisdiction under Rule 92 of Chapter XIV A of Kerala Education Rules (KER) disposed of the representation. **WP(C).No.12608 OF 2010(A)** **4** Ext.P5 decided the respective dates from which the teachers appointed with effect from 01.06.2005 are required to be approved by the Education Department. To appreciate the manner in which Ext.P5 has been issued by 1[st] respondent and the patent infirmity this Court finds it useful to excerpt the relevant portion of Ext.P5, which reads thus: “The following persons were appointed as LPSA in the Additional Promotion/Relieving posts |Shri Mohammed Ashraf|-|01/06/2005| |---|---|---| |Smt Fousia|-|13/11/2006| |Smt Banasir|-|07/06/2007| |Smt Jaseenamol|-|21/11/2007| |Smt Surya R Krishnan|-|07/01/2008| A protected teacher was appointed in the newly opened school only from 05-07-2007. The Assistant Educational Officer, Ambalapuzha during hearing has stated that the appointments/approvals given in certain cases are found to be irregular and hence recommended suitable modifications. In the circumstances appointments may be approved only on the date that the protected teacher joins duty (05.07.2007) as below if they are otherwise eligible. **WP(C).No.12608 OF 2010(A)** **5** 1. Appointment of Shri Muhammad Ashraf is approved w.e.f 05/07/2007 (on the date of joining of protected teacher) in the additional post created as per G.O(Rt) 694/08/G.Edn Dated 06/02/08 for 2005-06, by cancelling the appointment already approved in the promotion vacancy of Shri Mangal) (05/07/07 to 31/03/2008 daily wage and 02/06/08 onwards regular) The G.O(Rt): No 3587/08/G. Edn Dated 05/08/08 is modified to the above extent. 2. Appointment of Smt. Fousia w.e.f 05.07.07 onwards in the relieving vacancy of Seenia M. Jalal (05.07.07 to 31.03.08 daily wage and 02.06.08 onwards regular). 3. Appointment of Smt. Banasir is adjusted in the Promotion vacancy of Shri. Mangal, LPSA as H.M w.e.f 05.07.07 on the date of joining duty of the protected teacher (05/07/07 to 31/03/08 daily wage and from 02.06.08 onwards regular). 4. Appointment of Smt.Jaseenamol is approved in the vacancy of Smt.Liza who left the school w.e.f 19/12/2007 (19/12/07 to 31/03/2008 daily wage and from 02/06/08 onwards regular). 5. Appointment of Smt Surya R Krishnan is approved in the relieving vacancy of Smt S Jasmin from 09/07/08 (09.07.08 to 31.03.09 on daily wage and **WP(C).No.12608 OF 2010(A)** **6** from 02.06.09 onwards regular.” Hence the writ petition. 3. The case of petitioner is that Ext.P5 order is illegal, violative of principles of natural justice amounts to arbitrary exercise of revisional jurisdiction under Rule 92 of Chapter XIV A of KER. The order impugned is unsustainable inasmuch as the order is made behind the back of petitioner, without issuing notice or affording an opportunity of being heard while adversely affecting interest or taking away a right recognised and conferred on the petitioner through Ext.P4. In other words, the 3[rd] respondent while approving the appointment in Ext.P4 examined the totality of circumstances stated by the 4[th] respondent and accorded approval to the appointment of the petitioner as L.P.S.A. with effect from 01.06.2005. The said order has become final. The said order is also not the subject matter of _suo_ challenge, either in W.P.(C) No. 33885/2009 or before the _motu_ revision entertained by the 1[st] respondent. The direction was to dispose of Ext.P4 representation referred in W.P.(C) **7** ## **WP(C).No.12608 OF 2010(A)** No.33885/2009. Independent of the above infirmities the substantial argument of petitioner is against Ext.P5 order wherein the approval of appointment of petitioner is changed from 01.06.2005 to 05.07.2007. It is contended that according to the view taken by this Court _vis-à-vis_ G.O.(P) No.178/2002/G.E dated 28.06.2002 is that unless and until the respondents have intimated the available protected teachers to the school management, the omission on the part of a private school in giving preference to a protected hand and in place of such preferential appointment appointing a fresh hand is not considered as illegal or an omission on the part of the school management ought not to discuss the right of an appointee/teacher by the school management. 4. Stated briefly, to insist upon granting approval to fresh hands only subsequent to the date on which a protected hand is appointed, the circumstance necessary is that there ought to be communication of list of protected teachers available **8** ## **WP(C).No.12608 OF 2010(A)** under the administration of respondent nos. 1 to 3 to the School/Management. The petitioner is not disputing the obligation of school to appoint a protected hand in the vacancy that has arisen or available on 01.06.2005. The argument of petitioner is that in Ambalapuzha Educational Sub Division the protected hand was not available. Therefore, the petitioner a fresh hand was appointed as L.P.S.A. The petitioner therefore prays for setting aside Ext.P5 order where the date of approval is changed from 01.06.2005 to 05.07.2007. The learned Advocate appearing for the petitioner has laid much emphasis on the noncommunication of list of protected teachers to 4[th] respondent school by the Education Department and the effect of such omission is that the 1[st] respondent cannot unilaterally change the date of approval of petitioner to 05.07.2007. The petitioner relies on the following in the judgment of this Court reported in _Nadeera v. State of Kerala:_ “15. I find nothing therein which prevents approval of appointment or which postpones the approval till a **WP(C).No.12608 OF 2010(A)** **9** protected hand is appointed by the Manager. The said Government Order restate the obligation of the Manager to appoint a protected hand. But the time factor is not mentioned therein. In many cases, availability of protected hands may be delayed and non-availability of protected hands in certain posts may be there. Therefore, to compel a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by the staff fixation order will go against the scheme of the Act and Rules itself. When the staff fixation order permits appointment of required number of staff, the Manager will have to make the appointment in existing vacancies and exercise of the power of the Manager in such cases cannot be said to be against the scheme of the Act. In fact the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Manager, M.M.H.S. V Deputy Director( 1994(1) KLT 321) taking the view that actually it is the duty of the Manager to fill up all the posts in accordance with the orders of the educational authorities fixing the staff strength. 16. Therefore, it can be see that when the Manager exercised his power to make appointment in terms of staff fixation order of a qualified teacher, the postponement of the approval on the plea that the same can be done only from the date of appointment of the protected hand may not be justified. In this context a later Government Order of the year 2009 is also worth-mentioning. The same is G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarifies G.O.No.46/06 /G.Edn. dated 1.2.2006. It is insisted therein that in the schools which have opened between 1979 and 1990 or which have been upgraded, if for any reason a protected hand is not appointed, then at least one protected teacher may be appointed in any of the existing/arising vacancies and the appointments otherwise made shall not be approved. It is further clarified therein that if **WP(C).No.12608 OF 2010(A)** **10** any appointments have been made in any of the schools like wise, approval can be effected from the date of appointment of a protected hand. 17. This also confirms the view that at least till the said Government Order was issued on 19.11.2009, there was no restriction to grant approval on the plea that such approval will be granted only from the date of appointment of a protected hand. In fact, going by Rule 7 of Chapter XIV-A of KER, "as soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved." As far as grant approval is concerned, normally, it should conform to the existence of vacancy and the sanction of post as per the staff fixation order and the eligibility of the teacher for appointment by fulfilling the qualification. Once these conditions are satisfied, unless there is any other legal bar for granting approval, there cannot be a refusal to grant approval normally. 18. The learned Government Pleader relied upon Rule 1 of Chapter XIV-A KER in this context to submit that all the rules contained therein will have to be followed while filling up the vacancy, which includes the scheme for providing a protected hand. The plea advanced by the learned Government Pleader is that going by the same, "whenever vacancy occurs, the Manager shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand (and for filling up vacancy)." Actually, the same indicates the provisions for filling up the vacancies in terms of the Rules and orders fixing qualification, age, etc. and not a situation like this, which is evident from the opening sentence therein that "Managers of private schools shall appoint only candidates who possess the prescribed qualification". **WP(C).No.12608 OF 2010(A)** **11** 19. Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of Rule 6(viii) of Chapter V of KER. There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009 was issued which can only be prospective. Evidently there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be postponed.” 5. Under Secretary to Government, General Education Department, Secretariat has filed the counter affidavit for respondent nos. 1 to 3. The counter affidavit refers to the orders issued by Government from time to time and approval was granted by the Education Department from 2006 onwards. The 1[st] respondent in reply to the two substantive legal grounds urged by the petitioner, namely that the list of protected teachers was not communicated to 4[th] respondent School and that the petitioner was not heard before Ext.P5 order was made, by way of reply stated as follows: “ The appointment of the petitioner as Lower Primary School Assistant in A.S.M.L.P School, Purakkad, Alappuzha from 01.06.2005 onwards was against the direction of the **WP(C).No.12608 OF 2010(A)** **12** Government in G.O (P) No.178/2002/G.Edn. Dated 28.06.2002. The petitioner is a fresh hand. He was not a protected teacher. The manager violated the direction of the Government in No.178/2002/G.E Dated 28.06.2002 and appointed the petitioner. The stand of the Government in this case is correct in the light of the G.O.(P) No.178/2002/G.Edn. dated 28.06.2002, G.O(P) No.46/2006/G.E dated 01.02.2006 and paragraph 2 of the Government Circular No.38929/J1/09/G.E dated 19.11.2009. The erroneous approval if any given to any persons cannot be projected as a base to grant erroneous approval to the petitioner. In G.O(P)No.178/2002/G.E dated 28.06.2002, Government have directed that a newly opened/upgraded school, all the vacancies should be filled up through protected teachers. This was the prevailing rule position at the time of appointment of the petitioner. The petitioner was a fresh hand. As the appointment is erroneous, the petitioner deserves no salary for the period. the petitioner deserves approval and salary only with effect from 05.07.2007. 5. Government have powers to correct apparent mistake that may occur, in their orders. Government have given direction to grant approval to the petitioner from deserving dates. Ext.P5 was issued while considering a revision petition under Rule 92 Chapter XIV A KER. As per Rule 92(1) (d) Government have powers to issue appropriate orders. While, considering such a revision petition, the departmental officer pointed out that the approval given to the petitioner was erroneous. Rule 92 does not insist that personal hearing should be allowed in every case. In this case, as per Rule 92 Chapter XIV A KER, no hearing is warranted. Therefore, Ext.P5 is not in violation of the principles of natural justice.” 6. From the reply of 1[st] respondent it can be presumed or concluded that respondent nos. 1 to 3 at any point of time **WP(C).No.12608 OF 2010(A)** **13** anterior to 01.06.2005 either have communicated the list of protected teachers to 4[th] respondent School or have at any point of time insisted upon giving preference to a protected hand instead of taking a fresh hand as L.P.S.A. in 4[th] respondent/school. The principle laid down by this Court in _Nadeera_ case is that unless and until the list is communicated to 4[th] respondent, the Education Department cannot insist upon appointment of a protected hand in the place of a fresh hand. The circumstances under which petitioner was appointed are not in dispute, and the principle laid down by this Court consistently in the matters of non-communication of list of protected teachers to the management is applicable to the case as well on hand. Firstly, on this ground alone Ext.P5 can be interdicted and set aside. 7. Secondly, it is the argument of the petitioner that the petitioner was not heard the 1[st] respondent before passing Ext.P5 order. Ext.P5 order substantially affects the right accepted in **WP(C).No.12608 OF 2010(A)** **14** favour of petitioner through Ext.P4. Ext.P4 is not under challenge in the revision purportedly entertained by the 1[st] respondent while disposing of Ext.P4 representation referred in the judgment in W.P(C) No.33885/2009. At any rate unless and until the petitioner is heard, an opportunity is afforded, no order adverse to the interest of petitioner could have been made by 1[st] respondent. The reply of 1[st] respondent that there is no need or necessity to serve a notice on petitioner is noted and warrants rejection _in limine_ . The reply of 1[st] respondent is contradictory. Firstly, the 1[st] respondent refers to the participation of all the individuals who have interest in the outcome of disposal of Ext.P4 representation, including the person who would be adversely affected therefore, it cannot be heard to say that the individual/petitioner need not be heard but others will be heard and their request examined. The denial of opportunity to petitioner before passing the order impugned violated principles of natural justice. For the above reasons as well Ext.P5 is liable **WP(C).No.12608 OF 2010(A)** **15** to the interfered with and set aside. 8. After considering whether Ext.P5 is vitiated as violative of principles of natural justice, this Court would have considered the matter to such limited extent and remanded the case to 1[st] respondent for disposal afresh in accordance with law. In the case on hand, after perusing the counter affidavit and that the respondents failed to establish that the list of protected teacher was at any point of time communicated to 4[th] respondent is of the opinion that remanding the matter to 1[st] respondent would only perpetuate litigation for some more time. Hence, matter not remanded to 1[st] respondent. For the above reasons, the writ petition ordered. The orders impugned in the writ petition are set aside. No order as to Costs. **Sd/-** **S.V.BHATTI** **JUDGE** **jjj** **16** ## **WP(C).No.12608 OF 2010(A)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GO (RT) NO.694/2008/G.EDN OF THE GOVERNMENT EXHIBIT P2 TRUE COPY OF THE GO (RT) NO.3776/2006/G.EDN. OF THE GOVERNMENT EXHIBIT P3 TRUE COPY OF THE GO (RT) NO.3587/2008/G.EDN OF THE GOVERNMENT EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH THE APPROVAL THREOF.** - **EXHIBIT P5 TRUE COPY OF THE GO (RT)NO.1065/2010/G.EDN OF THE GOVERNMENT** - **EXHIBIT P6 TRUE COPY OF THE LETTER NO.A4/15448/09 OF THE DEPUTY DIRECTOR** - **EXHIBIT P7 TRUE COPY OF HTE JUDGMENT OF THIS HON'BLE COURT IN O.P NO.7847/1983-A** - **EXHIBIT P8 TRUE COPY OF THE -DO- IN W.A NO.754/1987** - **EXHIBIT P9 TRUE COPY OF THE DECISION REPORTED IN 2009(3) KLT 863.** - **EXHIBIT P10 TRUE COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN OF THE GOVERNMENT** - **EXHIBIT P11 TRUE COPY OF THE ORDER NO.F3/75090/J2/2008/K DIS OF THE 2ND RESPONDENT** - **EXHIBIT P12 TRUE COPY OF THE ORDER NO.F3/67649/2008/KDIS OF THE 2ND RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF HTE APPOINTMENT ORDER OF** **WP(C).No.12608 OF 2010(A)** **17** **SMT. JASMIN AND APPROVAL THEREOF.** **EXHIBIT P14 TRUE COPY OF THE APPOINTMENT ORDER OF SMT.RAJANI AND APPROVAL THEREOF.** **EXHIBIT P15 TRUE COPY OF THE -DO- SRI.JASWIN AND APPROVAL THEREOF.** **EXHIBIT P16 TRUE COPY OF THE -DO- SEENIYA M.JALAL AND APPROVAL THEREOF. EXHIBIT P17 TRUE COPY OF THE -DO- LIZA A AND APPROVAL THEREOF.** **EXHIBIT P18 TRUE COPY OF THE COMMUNICATION NO.A/773/2010 OF THE ASST.EDL.OFFICER DT.31.03.2010 EXHIBIT P19 TRUE COPY OF THE ORDER NO.D/18/2010 OF -DO-**