Priya Prabhakaran and Others v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933** **WP(C).No. 27610 of 2009 (U) ---------------------------** **PETITIONER(S):** **-------------** **1. PRIYA PRABHAKARAN, W/O.SANTHOSH CHANDRAN, ARAVINDA BHAVANAM, VETTIYAR P.O. MAVELIKARA (LOWER PRIMARY SCHOOL ASSISTANT GSM LP SCHOOL, PULIMEL)** **2. KUMARI S.SMITHA, W/O.RAJESH G., POKKATT THEKKETHIL, VETTIYAR P.O. MAVELIKARA (LOWER PRIMARY SCHOOL ASSISTANT GSM LP SCHOOL, PULIMEL)** **3. ANOOP CHANDRAN, S/O.CHANDRAN P.,. CHANDRA BHAVANAM, PATTOOR P.O., NOORANADU (LOWER PRIMARY SCHOOL ASSISTANT, GSM LP SCHOOL, PULIMEL)** **BY ADVS.SRI.S.SUBHASH CHAND SMT.M.P.MARY** **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION) ALAPPUZHA.** **4. THE ASSISTANT EDUCATIONAL OFFICER,** - **OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER** **5. THE MANAGER, GSM LP SCHOOL, PULIMEL.** **6. THE HEADMISTRESS, GSM LP SCHOOL, PULIMEL** - **R4 BY SR.GOVERNMENT PLEADER SRI.BIJU MEENATTOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 27610 of 2009 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 : COPY OF THE ORDER OF APPOINTMENT DTD 1/6/05 ISSUED BY RESPONDENT NO.5 AND THE ORDER OF APPROVAL OF RESPONDENT NO.4, ENDORSED UPON THE SAME.** - **P2 : COPY OF THE APPOINTMENT ORDER DTD 13/10/05 ISSUED BY RESPONDENT NO.5 AND APPROVED BY RESPONDENT NO.4.** - **P3 : COPY OF THE APPOINTMENT ORDER DTD 2/6/08 ISSUED BY RESPONDENT NO.5 AND APPROVED BY RESPONDENT NO.4.** - **P4 : COPY OF THE PROCEEDINGS DTD 7/9/09 OF RESPONDENT NO.4.** - **P5 : COPY OF THE GOVERNMENT ORDER DTD 18/4/1988 ISSUED BY RESPONDENT NO.1.** - **P6 : COPY OF THE GOVERNMENT ORDER DTD 28/6/02.** - **P7 : COPY OF THE GOVERNMENT CIRCULAR DTD 24/1/05.** - **P8 : COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO.46/2006/G.EDN. DTD 1/2/06.** - **P9, P10 & P11 : COPY OF THE REGISTERED NOTICE DTD 31/1/12 ISSUED TO PETITIONER NOS.1,2 & 3 RESPECTIVELY BY RESPONDENT NO.4.** ## **RESPONDENT'S EXHIBITS:** **R4(a) : COPY OF THE COMMUNICATION RECEIVED FROM THE 3RD RESPONDENT.** **R4(b) : COPY OF THE LETTER DTD 9.2.12.** **//TRUE COPY//** **P.A TO JUDGE.** **stu** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.27610/2009-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27[th] day of February, 2012`** ## **`J U D G M E N T`** The writ petitioners are approved teachers, all working as Lower Primary School Assistants in the schoo1 under the fifth respondentManager. Copies of approval orders have been produced as Exts.P1 to P3. They are challenging Ext.P4 whereby the Assistant Educational Officer, after a long time, resorted to cancel the approval on the ground that the school is a newly opened one and the Manager should have appointed a protected teacher. This Court while admitting the writ petition on 01/10/2009 had stayed all further action pursuant to Ext.P4 with a further direction that the salary of the petitioners will be disbursed from time to time pending further orders in the writ petition. 2. Heard learned counsel for the petitioners and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioners that the approval of appointment of the petitioners were in sanctioned posts and the approval orders were issued, as far as petitioners 1 and 2 are concerned in the year 2005. As far as the third petitioner is concerned, the appointment has been approved in 2008. Long after their appointments were approved, ## **W.P.(C). No.27610/2009** ## **-:2:-** Ext.P4 was issued by the fourth respondent-Assistant Educational Officer. With regard to the allegation that protected hands were not appointed, it is pointed out that the school is in Mavelikkara Educational Sub District and no list of protected teachers was communicated or furnished to the Manager for appointment. No protected L.P.S.As were available for absorption in Mavelikkara District at the relevant time. Reliance is placed on the decisions **Moosakutty v. D.E.O, Wandoor [2009 (3) KLT 863]** as well as **Nadeera v. State of Kerala [2011 (3) KLT 790]** . That Judgment is relied upon to contend for the position that G.O.No.38929/09/G.Edn. dated 19.11.2009 was also considered by this Court. 4. That the appointment of petitioners were approved without any objection, admits of no doubt. Now, the attempt is to recall the approval on the plea that the school is a newly started one after 1979-80. Reliance is placed on various Government Orders in the matter by the respondents. Mainly, it is stated in para.5 of the counter affidavit that according to G.O.No.178/2002/G.Edn., dated 28.6.2002 all vacancies newly arisen should have to be filled up by protected teachers. 5. Learned counsel for the petitioners points out that there is no plea in the counter affidavit also that protected hands were available in ## **W.P.(C). No.27610/2009** ## **-:3:-** Mavelikkara Educational Sub District. It is also pointed out that going by the Judgment in Moosakutty's case **[2009 (3) KLT 863]** , the obligation of the Manager is only to appoint protected teachers from the concerned sub district. 6. In fact, in the counter affidavit in para.8, with regard to the plea of the petitioner that no protected teachers were available, it is only stated thus: “The assertion that there were no protected teachers on the Sub-District is not correct.” The same is plainly evasive. It does not answer the contention raised by the petitioners that protected teachers were not available in the Sub District for absorption at the relevant dates of their appointments. No details have been furnished in the counter affidavit. Therefore, it can safely be concluded that no protected teachers were available for absorption. In that view of the matter, the dictum laid down in Moosakutty's case **[2009 (3) KLT 863]** that the obligation of the Manager under Rule 6(viii) of Chapter V Kerala Education Rules is only to appoint protected hands from the Educational Sub District or the District as the case may be, will squarely apply here and, the petitioners were entitled to be appointed and approved on that basis. ## **W.P.(C). No.27610/2009** ## **-:4:-** 7. Next aspect is whether in the absence of the communication of the list of protected hands can the department contend for the position that the Manager is bound to appoint a protected hand. This aspect is also covered in favour of the petitioner in the light of the Judgment in Nadeera's case **[2011 (3) KLT 790]** . Therein, this Court considered two aspects, one whether vacancies in sanctioned posts to which appointments have been made of which the approval is required, can be postponed till the appointment of a protected hand and, it was held that approval cannot be postponed till a protected hand is made available. The second aspect that was considered by this Court was regarding the obligation of the Manager and the duty of the Department to communicate the list of protected hands. This Court considered various earlier Judgments of this Court in the said writ petition and held in para.20 thus: “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 ## **W.P.(C). No.27610/2009** ## **-:5:-** 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 said dictum also squarely applies to this case. If that be so, it can be seen that there is no plea by the respondents that a list of protected hands was communicated to the Manager for making appointment. In the absence of the same, the Manager cannot be found fault with for not appointing any protected hand. For all these reasons, the petitioners are entitled to succeed in this writ petition. ## **W.P.(C). No.27610/2009** ## **-:6:-** 8. Therefore, the proposal made in Ext.P4 cannot be sustained in the light of the legal position discussed above. Apart from that as far as the petitioners 1 and 2 are concerned, their appointments were made in 2005 and consequently they were granted approval. The third petitioner was appointed in 2008 which appointment has also been approved. Even for initiating steps for cancellation of their approval, there is long delay. The petitioners have acquired status in service and have also acquired right to continue in the posts in the light of the approvals granted. For all these reasons, Ext.P4 is quashed. The monetary benefits, if any, due will be sanctioned and the monthly salary and allowances will be paid from time to time. The writ petition is, accordingly, allowed. No costs. ``` Sd/- ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**