P.S. Nisharani and S. Sailu v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942** ## **WP(C).No.14705 OF 2013(K)** ## **PETITIONERS:** |**1**|**P.S. NISHARANI**| |---|---| ||**UPPER PRIMARY SCHOOL ASSISTANT,**| ||**EX-SERVICE MAN'S UPPER PRIMARY SCHOOL,**| ||**ATTUPURAM,P.O.PULLUPANA,KADACKAL,**| ||**KOLLAM DISTRICT**| |**2**|**S.SAILU**| ||**UPPER PRIMARY SCHOOL ASSISTANT,**| ||**EX-SERVICE MAN'S UPPER PRIMARY SCHOOL,**| ||**ATTUPURAM,P.O.PULLUPANA,KADACKAL,**| ||**KOLLAM DISTRICT**| ||**BY ADV. SRI.V.A.MUHAMMED**| ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS**| ||**JAGATHY,**| ||**THIRUVANANTHAPURAM 695 014**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**KOLLAM DISTRICT 691 001**| |**4**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**PUNALUR,**| ||**KOLLAM DISTRICT 691 305**| W.P.(C) No.14705/13 **-:2:-** |**5**|**THE ASSISTANT EDUCATIONAL OFFICER**| |---|---| ||**CHADAYAMANGALAM,**| ||**KOLLAM DISTRICT 691 534**| |**6**|**THE MANAGER**| ||**EX-SERVICE MAN'S UPPER PRIMARY SCHOOL,**| ||**ATTUPURAM P.O PULLUPARA,KADACKAL,**| ||**KOLLAM DISTRICT 691 536**| ||**R1 TO R5 BY SMT.RANJITHA, GOVERNMENT PLEADER**| ||**R6 BY ADV. SRI.V.RAJASEKHARAN NAIR**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.14705/13 ## **JUDGMENT** Petitioners seek approval of their appointment from the respective dates of their first appointment, which has been rejected by all the statutory authorities under the Kerala Education Act, 1958 and its rules. 2. The 1[st] petitioner was appointed as UPSA on 20.9.2004 while the 2[nd] petitioner was appointed on 23.11.2005. Though the 1[st] petitioner's appointment till 31.3.2005 was initially approved, the same was thereafter found to be irregular on account of the school having no protected teacher. Later, it was held that the 1[st] petitioner's appointment even from 1.2.2006 was also not liable to be approved and the salary paid to her was directed to be recovered. The 2[nd] petitioner also had to undergo the same difficulties since his approval was also refused on the same reasoning that a protected teacher had not been appointed by the manager. A consolidated revision was filed as far as the petitioners were concerned before the 1[st] respondent by Ext.P13, which resulted in Ext.P14 order, whereby the revision petitions were rejected by a one sentence order. Challenging the said W.P.(C) No.14705/13 ## **-:4:-** order of revision, W.P.(C) No.25763 of 2008 was preferred. During the pendency of that writ petition an order dated 1.10.2011 commonly known as “teachers package” was issued, enabling approval of appointment of the teachers working against admitted vacancies. However, petitioners were denied the benefit of even that Government Order citing that W.P.(C) No.25763 of 2008 is pending. In order to satisfy the respondents, petitioners withdrew the said writ petition in 2011 as per Ext.P16. In spite of withdrawing the writ petition, petitioners have not obtained any relief of approval of their appointment. On the other hand, they are forced to run from pillar to post for the purpose of obtaining approval of their appointment. 3. Interestingly, in the meantime, the 2[nd] petitioner had applied under the Right to Information Act seeking information from the 4[th] respondent District Educational Officer, Punalur, as to whether there were any protected teachers available for being deployed in the UPSA in any of the aided schools within Punalur educational sub district in the year 2004 or in 2005. The answer was in the negative as seen from Ext.P17. Petitioners contend that in the absence of availability of any protected teachers W.P.(C) No.14705/13 ## **-:5:-** either in 2004 or in 2005, as evidenced by Ext.P17, petitioners are entitled to have their appointment approved with effect from the respective dates of appointment. 4. I have heard Sri.V.A.Muhammed, learned counsel for the petitioners and Smt.Ranjitha, learned Government Pleader appearing for the official respondents. 5. Instances of non-approval of teachers due to the failure to appoint protected teachers by the schools are matters which came up for consideration before this Court on numerous occasions. In **Moosakutty v. D.E.O. Wandoor** (2009 (3) KLT 863) this Court had held that though a Government order was issued to appoint protected teachers from the list supplied by the educational officers, the same had not resulted in consequent amendment to Rule 9 of Chapter III of the Kerala Education Rules and hence the liability of the manager cannot be widened by the Government order. The liability of the manager was only to absorb a protected teacher from schools in the educational sub district. This judgment was confirmed in appeal and also by the Supreme Court as seen from Ext.P15. 6. This Court had again considered the issue relating to appointment of protected teachers in **State of Kerala v.** W.P.(C) No.14705/13 ## **-:6:-** **Nadeera** (2013 (2) KLT 88). It was held therein that when the manager exercises his power to appoint, in terms of the staff fixation order of a qualified teacher, the approval cannot be postponed on the ground that a protected teacher was not appointed or that the approval shall be given only from the date of appointment of the protected teacher. 7. The aforesaid principle of law squarely applies in the instant case. The petitioners respective appointments were not approved on the ground that the school having started in the year 1984-85, protected teachers ought to have been appointed and since the same had not been done, approval was not liable to be granted. The said finding of the statutory authorities are contrary to law and cannot be justified under any circumstances. 8. The Manager is liable to appoint protected teacher only if such a teacher is available within the educational sub district and not otherwise. It is evident from Ext.P17 that no protected teacher was available within Punalur educational sub district either in 2004 when the 1[st] petitioner was initially appointed or in 2005 when the 2[nd] petitioner was initially appointed. Nonavailability of protected teachers was certainly within the realm of knowledge of the 4[th] respondent, which ought to have been W.P.(C) No.14705/13 **-:7:-** taken note of by respondents 1, 2 and 3 also. Refusing to approve the appointment of the petitioners from their respective dates of appointment on the premise that no protected teachers had been appointed even when they were aware that protected teachers were not available as on the date of appointment is certainly perverse and totally arbitrary. Petitioners were entitled to have their respective appointments approved from their respective dates of appointment. 9. In such circumstances, I find that the claim of the petitioners in the writ petition is totally justified and the impugned order, Ext.P14 is liable to be set aside and I do so. The orders produced as Exts.P5, P7, P8, P10, P11 and P12 also will stand set aside as the petitioners are entitled to get approval of their appointments from the date of their original appointment. 10. In the result, this writ petition is allowed. The District Educational Officer, Punalur, is directed to approve the appointment of the 1[st] petitioner with effect from 20.9.2004 and that of the 2[nd] petitioner with effect from 23.11.2005 as Upper Primary School Assistant. Appropriate orders will be passed by the 4[th] respondent within a period of one month from the date of W.P.(C) No.14705/13 **-:8:-** receipt of a copy of this judgment. Needless to mention that all the consequential benefits due to the petitioners shall be disbursed to them forthwith, on such orders of approval being issued. Sd/- **BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.14705/13 ## **-:9:-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 20-09-2004 AND THE APPROVAL THEREOF** - **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 1-6-2005** - **EXHIBIT P3 TRUE COPY OF THE HEARING NOTICE OF THE 2ND RESPONDENT DATED 8-8-2006** - **EXHIBIT P4 TRUE COPY OF THE HEARING NOTICE DATED 18-08-2006 OF THE 2ND RESPONDENT TO THE 1ST PETITIONER** - **EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 16-10-2006 (1ST PETITIONER)** - **EXHIBIT P6 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 7-122006** - **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 22-2-2007** - **EXHIBIT P8 TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER DATED 22-3-2007** - **EXHIBIT P9 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 23-11-2005** - **EXHIBIT P10 TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER DATED 3-3-2006 (2ND PETITIONER)** - **EXHIBIT P11 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 26-12-2006** - **EXHIBIT P12 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 24-11-2007** W.P.(C) No.14705/13 **-:10:-** |**EXHIBIT P13**|**TRUE COPY OF THE REVISION PETITION**| |---|---| ||**FILED BEFORE THE GOVERNMENT DATED 12-**| ||**06-2007**| |**EXHIBIT P14**|**TRUE COPY OF THE ORDER OF THE**| ||**GOVERNMENT DATED 19-07-2008**| |**EXHIBIT P15**|**TRUE COPY OF THE ORDER OF THE ASSISTANT**| ||**EDUCATIONAL OFFICER DATED 24-08-2009**| |**EXHIBIT P16**|**TRUE COPY OF THE JUDGMENT IN W.P.(C) NO**| ||**25763/2008 DATED 10-11-2011**| |**EXHIBIT P17**|**TRUE COPY OF THE LETTER DATED 18-10-**| ||**2012 ALONG WITH THE INFORMATION**| |**EXHIBIT P18**|**TRUE COPY OF THE DECISION REPORTED IN**| ||**2011 (3) KHC 650 DATED 4.8.2011**|