M.V. Latha v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938** ## **WP(C).No. 36260 of 2015 (F)** **---------------------------** **PETITIONER(S):** **-------------** **M.V.LATHA, AGED 42 YEARS W/O.RADHAKRISHNAN, UPPER PRIMARY SCHOOL ASSISTANT, KADAMBOOR NORTH AIDED UPPER PRIMARY SCHOOL, (PO) EDAKKAD KANNUR DISTRICT.** **BY ADV. SRI.C.AJITH KUMAR** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM.** **3. THE ASSISTANT EDUCATIONAL OFFICER KANNUR SOUTH (PO), CHAKKARAKKAL, KANNUR DISTRICT-670 612.** ## **4. THE MANAGER** - **KADAMBOOR NORTH AIDED UPPER PRIMARY SCHOOL, (PO)EDAKKAD, KANNUR DISTRICT.** **R1-R3 BY ADV. GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R4 BY ADV. SRI.RAJESH VIJAYENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 36260 of 2015 (F)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1 - TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2009 OF THE PETITIONER BY THE 4TH RESPONDENT.** **P2 - TRUE COPY OF THE ORDER NO.C/3422/2009 K.DIS DATED 01.10.2009 OF THE 3RD RESPONDENT** **P3 - TRUE COPY OF THE ORDER NO.G4/24375/2010/DPI/K.DIS DATED 11.11.2010 OF THE 2ND RESPONDENT** **P4 - TRUE COPY OF THE REVISION PETITION DATED 30.10.2012 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** **P5 - TRUE COPY OF THE JUDGMENT DATED 21.11.2012 IN WPC NO.27594/2012** **P6 - TRUE COPY OF THE GO(RT)NO.1511/2013 G.EDN. DATED 02.04.2013 PASSED BY THE 1ST RESPONDENT.** **P7 - TRUE PHOTOCOPY OF LETTER DATED 10.05.2013 ISSUED BY THE CONTROLLER OF EXAMINATIONS, MAGADH UNIVERSITY, BODHGAYA TO THE 4TH RESPONDENT** **P8 - TRUE PHOTOCOPY OF THE ORDER DATED 09.04.2014 PASSED BY THE KERALA LOK AYUKTA** **P9 - TRUE PHOTOCOPY OF THE GO(RT)NO.2754/2014 G.EDN. DATED 11.07.2014 OF THE 1ST RESPONDENT.** **P10 - TRUE PHOTOCOPY OF THE ACTION TAKEN REPORT DATED 11.07.2004 IN THE LIGHT OF EXT.P9** **P11 - TRUE PHOTOCOPY OF THE GO(RT) NO.3801/2014 G.EDN. DATED 25.09.2014 OF THE 1ST RESPONDENT.** **P12 - TRUE PHOTOCOPY OF THE LETTER NO.C/5267/2014 DATED 04.11.2014 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **P13 - TRUE COPY OF THE JUDGMENT IN WPC NO.14926/2015 OF THIS HON'BLE COURT** **P14 - TRUE COPY OF THE ORDER NO.C/2817/2015 DATED 11.11.2015 ISSUED BY 3RD RESPONDENT** **P15 - TRUE COPY OF THE STAFF FIXATION ORDER DATED 09.08.2010 OF THE 3RD RESPONDENT PERTAINING TO KADAMPUR NORTH AUP SCHOOL.** **RESPONDENT(S)' EXHIBITS:NIL** **-----------------------** **//TRUE COPY//** P.A TO JUDGE ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.36260 of 2015 ............................................................. Dated this the 7[th] day of November, 2016** ## **J U D G M E N T** The petitioner was appointed as UPSA with effect from 01.06.2009, in the school under the management of the 4[th] respondent, in a permanent promotion vacancy arising consequent to the promotion of one Smt.Vasumathy as Headmistress. The said appointment, however, was not approved by the educational authority citing two reasons, namely, (i) that there was a Rule 51-B claimant, whose candidature had to be considered first before considering the candidature of the petitioner and (ii) that the school in question, being an uneconomic school, to the vacancy that arose consequent to the promotion of Smt.Vasumathy, only a protected teacher could be appointed. Ext.P2 is the order dated 01.10.2009, by which approval was denied to the appointment of the petitioner. Aggrieved by Ext.P2 order, the petitioner preferred an appeal before the 3[rd] respondent, who by Ext.P3 order dated 11.11.2010 dismissed the appeal stating that, to the vacancy in question, only a protected teacher could be appointed. The -2- ## **W.P.(C).No.36260 of 2015** petitioner, therefore, preferred a revision petition before the 1[st] respondent, which was rejected by Ext.P6 order dated 02.04.2013, whereby it was found that the petitioner could be appointed only after the Rule 51-B claimant was appointed. It would appear that, thereafter, the Manager of the school did not give appointment to the Rule 51-B claimant, citing an issue with regard to the qualification possessed by the said Rule 51-B claimant. The matter was taken before the Lok Ayukta, which directed the Government to pass a fresh order in the matter after considering the legality of the qualifications stated to be possessed by the Rule 51-B claimant. By Ext.P9 order dated 11.07.2014, that was passed consequent to the directions of the Lok Ayukta, the 1[st] respondent cancelled Ext.P6 order and directed that, the appointment of the petitioner could be approved if the same was otherwise in order. When despite Ext.P9 order of the 1[st] respondent, the appointment of the petitioner was not approved on regular scale of pay basis, the petitioner approached this Court through W.P.(C).No.14926 of 2015, which was disposed by Ext.P13 judgment dated 10.07.2015, wherein a direction was issued to the Government, as well as the educational authorities, to implement Ext.P9 order of the 1[st] respondent and approve the appointment of the petitioner if it was otherwise in order. Ext.P14 order dated 11.11.2015 is the order -3- ## **W.P.(C).No.36260 of 2015** passed by the 3[rd] respondent, pursuant to the directions in Ext.P13 judgment, approving the appointment of the petitioner on daily wage basis with effect from 01.06.2009. In the writ petition, the petitioner impugns Ext.P14 order to the extent it approves the appointment of the petitioner as UPSA in the school with effect from 01.06.2009 only on daily wage basis, and not on regular scale of pay basis. 2. A counter affidavit has been filed on behalf of the 3[rd] respondent, wherein it is stated that the reason why the petitioner was approved only on daily wage basis was because the school in question was an uneconomic school, and as per the Government orders in force, the vacancy that arose consequent to the promotion of an incumbent as Headmistress could be filled only by appointing a protected teacher. The counter affidavit filed on behalf of the 3[rd] respondent is, however, silent as regards whether a list of protected teachers was made available to the Manager of the school for the purposes of effecting appointment from the said list to the vacancy that arose in the school with effect from 01.06.2009. 3. I have heard the learned counsel appearing for the -4- ## **W.P.(C).No.36260 of 2015** petitioner as also the learned Government Pleader appearing for the respondents. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the specific averment in the writ petition that there was no list of protected teachers that was made available to the Manager of the school for the purposes of effecting appointment of a protected teacher to the vacancy that arose in the school with effect from 01.06.2009, is not denied by the respondents and, at any rate, there is no material to suggest that such a list was made available to the Manager for the purposes of effecting the appointment of a protected teacher during the particular period. Under such circumstances, I am of the view that, the decision of a Division Bench of this Court in **State of Kerala and Others v. S.Haseena and Another (2013 (2) KHC 103)** would come to the aid of the petitioner in contending that, unless a list of protected teachers was sent to the school concerned to ensure that the Manager complied with an undertaking to appoint protected teachers, the Manager would not be under any obligation to appoint a protected teacher to the vacancy that arose in the uneconomic school. Since, as already noted in the instant case, it is not in dispute that there -5- ## **W.P.(C).No.36260 of 2015** was no list of protected teachers made available to the Manager for the purposes of effecting an appointment therefrom, I am of the view that, Ext.P14 order, to the extent it approves the appointment of the petitioner as UPSA with effect from 01.06.2009 only on daily wage basis, cannot be legally sustained, I, therefore, quash Ext.P14 order to that extent and direct the 3[rd] respondent to pass a fresh order approving the appointment of the petitioner as UPSA in the school with effect from 01.06.2009 on regular scale pay of basis. The 3[rd] respondent shall pass orders as directed within a period of one month from the date of receipt of a copy of this judgment, and thereafter, disburse the salary and other benefits flowing from such approval, to the petitioner, within a further period of three months. The writ petition is disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/7.11.16 -6- **W.P.(C).No.36260 of 2015**