Praseetha K. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, ``` ## **`1944`** ## **`WP(C) NO. 28472 OF 2021`** ## **`PETITIONER/S:`** ``` PRASEETHA K., AGED 41 YEARS W/O. JAYAN P.V., ASSISTANT TEACHER (LPSA), JYOTHI BHAVAN SCHOOL FOR THE HEARING IMPAIRED, CHAYOTH, NARIMALAM, NILESWAR VIA, KASARAGOD 671 314, RESIDING AT IDICHADI, CHAYOTH P.O., KASARAGOD 671 314. ``` ``` BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001.` - `2 DIRECTOR OF GENERAL EDUCTION, DIRECTORATE OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM 695 014.` - `3 DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, VIDYA NAGAR P.O., KASARAGOD. 671 123.` - `4 DISTRICT EDUCATIONAL OFFICER, KANHANGAD, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, LAKSHMI NAGAR, ALAMI, PALLI, KANHANGAD 671 315.` - `5 MANAGER, JYOTHIBHAVAN SCHOOL FOR THE HEARING IMPAIRED, NARIMALAM P.O., CHAYOTH VIA NEELESHWARAM, KASARAGOD BY ADVS. ADVOCATE GENERAL OFFICE KERALA P.SAJU` 2- W.P.(C). No. 28472 of 2021 ``` R.SUDHEER K.N.RAJANI RAJEESH V.R. R.PRATHEESH (ARANMULA) ``` ## **`OTHER PRESENT:`** ``` SMT.SURYA BINOY, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3- W.P.(C). No. 28472 of 2021 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 28472 of 2021 ============================================================= Dated this the 22[nd] day of February, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“i) To issue a writ of certiorari quashing Exts.P2 and P7 as unjust, illegal and untenable;_ _ii) To declare that the petitioner is entitled to get her appointment approved w.e.f 02.03.2015 as Lower Primary School Teacher in the 5[th] respondent's school with all consequential benefits._ _iii) To issue a writ of mandamus directing the respondent 1 to 4 to pass orders approving the appointment of the petitioner with effect from 02.03.2015 as Lower Primary School Teacher and to disburse the arrears of salary to her w.e.f 02.03.2015._ _iv) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit under the facts and circumstances of the case.” (sic)_ 2. The petitioner is presently working as Lower Primary School Teacher (LPST) at the 5[th] respondent School. Ext.P1 is her appointment order. However, vide Exts.P2 and P7, she is denied approval of appointment stating that no protected teacher 4- W.P.(C). No. 28472 of 2021 is appointed in her vacancy. It is the case of the petitioner that Exts.P4 and P6 would show that there were no protected teachers available and no list of such protected teachers were sent to the manager by the educational authorities at the time of appointment of the petitioner. Therefore, the petitioner is entitled to get her appointment approved with effect 02.03.2015 in the light of the decision of this Court in **Moosakutty Puthuvalappan v. District Educational Officer, Wandoor and others [2009 (3) KHC 446]** and **Nadeera T.S. and another v. State of Kerala and others** . **[2011 (3) KHC 650]** 3. Heard the counsel for the petitioner and the Government Pleader. 4. A perusal of Exts.P2 and P7 would show that the petitioner’s appointment is not approved because the manager has not appointed protected teachers in the light of Ext.R5(f). A perusal of Exts.P4 and P6 would show that there is no protected teachers available in the Kasaragod District. If that is the case, I 5- ## W.P.(C). No. 28472 of 2021 think the point is covered in favour of the petitioner in **Moosakutty’s case** (supra) and in **Nadeera’s case** (supra). It will be better to extract the relevant paragraphs in Nadeera’s case. _“15. I find nothing therein which prevents approval of appointment or which postpones the approval till a 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._ _xxxxxx xxxxxx xxxxxx xxxx_ 6- W.P.(C). No. 28472 of 2021 _20. It is in that context that the procedure for communicating the list of protected teachers forwarded under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are entitled to succeed in the Writ Petition. The Writ Petitions are allowed. The impugned orders Exhibits P1 to P4 produced in both the Writ Petitions are quashed.”_ 7- W.P.(C). No. 28472 of 2021 It is also beneficial to extract the relevant portion in Moosakutty’s case also here: _“9. It is well settled that an executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced. See, Unni Narayanan v. State of Kerala (2009 (2) KLT 604). Herein, Ext.P7 shows that there is no protected teacher available in the Wandoor Educational Sub-district, which fact is admitted in paragraph (9) of the counter affidavit. If that is so, the Manager cannot be faulted for not appointing a protected teacher in the vacancy to which the petitioner was appointed. Even if there will be a protected U.P.S.A in W.P.(C). No.4623/2009 Malappuram Revenue District, that cannot be sought to be enforced against the Manager, obviously.”_ 5. In the light of the above principle laid down by this Court in **Nadeera’s case** and **Moosakutty’s case** , the Government has to reconsider the matter. Moreover, as per GO(RT)No.4591/2011/G.Edn dated 28.10.2011, which is produced by the 5[th] respondent manager in his counter affidavit, the Government passed orders in similar situation, since there is no 8- W.P.(C). No. 28472 of 2021 protected teachers. That also can be considered by the Government. Therefore, this writ petition is disposed of in the following manner: 1. Exts.P2 and P7 are set aside. 2. The 1[st] respondent is directed to reconsider the proposal of the appointment of the petitioner as Lower Primary School Teacher, in the light of the principle laid down by this Court in **Nadeera’s case** (supra) and **Moosakutty’s case** (supra) and also in the light of GO(RT)No.4591/2011/G.Edn dated 28.10.2011, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 3. If the appointment of the petitioner is approved, consequential benefits shall be disbursed to the petitioner, forthwith. 9- W.P.(C). No. 28472 of 2021 4. The petitioner will produce a certified copy of this judgment together with a copy of this writ petition before the 1[st] respondent for compliance. sd/- **P.V.KUNHIKRISHNAN JUDGE** das 10- W.P.(C). No. 28472 of 2021 ## **`APPENDIX OF WP(C) 28472/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER DATED 02.03.2015 PERTAINING TO THE PETITIONER ISSUED BY THE 5TH RESPONDENT. Exhibit P2TRUE COPY OF THE ORDER NO. K.DIS/B5/1567/2015 DATED 21.11.2015 ISSUED BY THE 4TH RESPONDENT. Exhibit P3TRUE COPY OF THE APPEAL DATED 10.12.2015 SUBMITTED BY THE MANAGER TO THE 3RD RESPONDENT. ``` ``` Exhibit P4TRUE COPY OF THE LETTER NO. B2/10922/2015 DATED 23.08.2016 ISSUED BY 3RD RESPONDENT. Exhibit P5TRUE COPY OF THE LETTER DATED 22.11.2016 SUBMITTED BY THE MANAGER TO THE 4TH RESPONDENT. ``` ``` Exhibit P6TRUE COPY OF THE LETTER NO. B2/17360/20215 DATED 13.01.2017. ``` - `Exhibit P7 TRUE COPY OF THE LETTER MP. GEDNR2/97/2018-G.EDN. DATED 25.10.2021 ISSUED BY THE IST RESPONDENT.` - `RESPONDENT EXHIBITS` - `Exhibit R5(A) TRUE COPY OF THE PROPOSAL FOR THE APPROVAL OF APPOINTMENT OF THE PETITIONER AS LPSA DATED 02.03.2015 TO THE 4TH RESPONDENT ALONG WITH ENCLOSURES.` ``` Exhibit R5(B)TRUE COPY OF THE INTIMATION DATED 18.01.2017 FROM THE OFFICE OF THE 4TH RESPONDENT. ``` - `Exhibit R5(C) TRUE COPY OF THE APPLICATION DATED 16.02.2016 ALONG WITH COPY OF DOCUMENTS FOR REFERENCE ATTACHED TO IT SUBMITTED BEFORE THE OFFICE OF 1ST RESPONDENT.` - `Exhibit R5(D) TRUE COPY OF THE INTIMATION DATED 25.10.2021 FROM THE OFFICE OF 1ST RESPONDENT.` - `Exhibit R5(E) TRUE COPY OF THE G.O. (M.S) NO-292/2012 G.EDN DATED 20.9.2012.` ``` Exhibit R5(F)TRUE COPY OF ORDER G.O. (M.S) NO 50/2015 G.EDN DATED 16.02.2015. ```