Renjith Gopi v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939** ## **WP(C).No. 21744 of 2014 (P)** **----------------------------** ## **PETITIONER:** **-------------** **RENJITH GOPI, AGED 30 YEARS S/O. K.G GOPI, HIGH SCHOOL ASSISTANT (MALAYALAM) S.N.D.P HIGHER SECONDARY SCHOOL, KUTTAMANGALAM ALAPPUZHA DISTRICT - 688 501.** ## **BY ADV. SRI.P.NANDAKUMAR** **RESPONDENTS:** - **--------------** ## **1. THE STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM - 695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA DISTRICT - 688 001.** **4. THE DISTRICT EDUCATIONAL OFFICER KUTTANAD AT RAMANKARY, P.O.RAMANKARY, ALAPPUZHA DISTRICT - 689 595.** **5. THE MANAGER S.N.D.P. HIGHER SECONDARY SCHOOL, KUTTAMANGALAM, ALAPPUZHA DISTRICT - 688 501.** ## **R1-R4 BY GOVERNMENT PLEADER SRI.E.S ASHRAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 21744 of 2014 (P)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** |**-----------------------**|**-----------------------**| |---|---| |**EXT.P-1:**|**TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER**| ||**DATED 5.6.2006**| |**EXT.P-2:**|**TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL**| ||**OFFICER DATED 25.8.2006**| |**EXT.P-3:**|**TRUE COPY OF THE APPEAL FILED BY THE MANAGER DATED**| ||**22.9.2006**| |**EXT.P-4:**|**TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF**| ||**EDUCATION DATED 29.11.2006**| |**EXT.P-5:**|**TRUE COPY OF THE REVISION PETITION FILED BEFORE THE 2ND**| ||**RESPONDENT BY THE MANAGER DATED 31.1.2007**| |**EXT.P-6:**|**TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED**| ||**18.4.2007**| |**EXT.P-7:**|**TRUE COPY OF THE REVISION FILED BEFORE THE GOVERNMENT BY**| ||**THE MANAGER DATED 2.8.2007**| |**EXT.P-8:**|**TRUE COPY OF THE G.O(RT) NO.1014/2010/G.EDN DATED 8.3.2010 OF**| ||**THE GOVERNMENT**| |**EXT.P-9:**|**TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF THE**| ||**PETITIONER DATED 30.3.2010**| |**EXT.P-10:**|**TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED**| ||**20.1.2011**| |**EXT.P-11:**|**TRUE COPY OF THE CHELAN RECEIPT DATED 10.12.2010**| |**EXT.P-12:**|**TRUE COPY OF THE JUDGMENT IN WPC NO.33292/2011-J DATED**| ||**20.1.2014**| |**EXT.P-13:**|**TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 4TH**| ||**RESPONDENT DATED 25.2.2014**| |**EXT.P-14:**|**TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL**| ||**OFFICER DATED 19.4.2014**| |**EXT.P-15:**|**TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF**| ||**EDUCATION DATED 1.8.2007**| |**EXT.P-16:**|**TRUE COPY OF THE LETTER OF THE HEADMISTRESS DATED 9.7.2014**| |**EXT.P-17:**|**TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF**| ||**EDUCATION DATED 18.3.2008**| |**EXT.P-18:**|**TRUE COPY OF THE DECISION REPORTED IN 1993(2) KLT SN PAGE 27**| ||**CASE NO.28 DATED 2.8.1993**| ## **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **//TRUE COPY//** ## **PA TO JUDGE** **sab** **ANU SIVARAMAN, J. -------------------------------------------------W.P.(C) No.21744 OF 2014 --------------------------------------Dated this the 9[th ] day of November, 2017** ## **J U D G M E N T** The prayers in this writ petition are as follows: “i. call for the records relating to Exhibit P-14 and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order. ii. issue a writ of mandamus or other appropriate writ order or direction commanding the 4[th ] Respondent to approve the appointment of the Petitioner as High School Assistant (Malayalam) from 5.6.2006 forthwith.” 2. Heard learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by learned counsel for the petitioner that the petitioner had been appointed as High School Assistant (Malayalam) in a retirement vacancy in the 5[th] respondent's School with effect from 5.6.2006. The approval of appointment was rejected by Ext.P2 order of the District Educational Officer on the ground that the appointment of fresh hand in the newly upgraded school is not permissible and that 51 B declaration and conduct certificate were not produced. The Deputy Director of Education has also rejected the appeal filed by the Manager W.P.(C) No.21744 OF 2014 2 upholding the orders of the District Educational Officer by Ext.P4 order dated 29.11.2006. Though the Manager had taken the matter in revision before the DPI, the same was also rejected by Ext.P6. Thereafter, the matter was taken up before the Government and Ext.P8 order dated 8.3.2010 was passed. It was found that the Manager was bound to appoint a protected teacher against the retirement vacancy to which the petitioner was accommodated on 5.6.2006. It was found that a protected teacher had been appointed in the school only on 27.8.2009. The petitioner's appointment was directed to be approved from that date. It is stated that thereafter, the said approval was also recalled and the petitioner has refunded the entire salary drawn by him. The petitioner had approached this Court and by Ext.P12 judgment dated 20.1.2014, the Government was directed to consider the claim of the petitioner for approval of the appointment with effect from 5.6.2006 in the light of the judgment of this Court reported in **State of Kerala v. Nadeera [2013 (2) KLT 88 (DB)].** Thereafter, Ext.P14 order has been passed by the District Educational Officer. It is stated in Ext.P14 that a list of protected teachers had been forwarded to the Manager on 27.1.2006. It is stated that the W.P.(C) No.21744 OF 2014 3 Manager had sent appointment letters to all the protected teachers included in the list except one Smt. Geetha Bai. However, none of the teachers joined duty. Thereafter one Smt.Anila, protected teacher joined duty in 2009 and the petitioner's appointment came to be approved from that date. It is stated in Ext.P14 that since the Manager had not appointed a protected teacher against the vacancy to which the petitioner was accommodated on 5.6.2006, the petitioner would not be entitled to approval of appointment with effect from the said date. 4. The learned counsel for the petitioner would contend that the decisions of the Division Bench of this Court reported in **State of Kerala v. Nadeera [2013 (2) KLT 88 (DB)]** covers the issue and the petitioner would be entitled to approval of appointment with effect from the date of initial appointment. 5. A counter affidavit has been filed on behalf of the 3[rd] respondent. It is contended therein that a list of protected teachers had been made available by the Deputy Director of Education on 27.1.2006. It is stated that one Smt. Geetha Bai who was working as HSA (Malayalam) in the SKVHS, Kuttmperoor was included in the list. It is stated that the W.P.(C) No.21744 OF 2014 4 appointment order to Smt. Geetha Bai was not sent in the proper address by the Manager and so the same was returned. It is stated that the Manager did not have the right to make a fresh appointment against the vacancy on 5.6.2006. 6. The petitioner has specifically stated that the SKVHS, Kuttmperoor, the parent school of the protected teacher Smt. Geetha Bai, is in Mavelikkara Educational District and the SNDP Higher Secondary School, Kuttamangalam is in the Kuttanad Educational District. It is contended that going by Rule 6(viii), Chapter V KER, as it stood before amendment on 26.5.2010, the Manager was duty bound to appoint protected teachers who had been retrenched from any of the Aided High Schools in the Educational District or Aided Primary Schools in the Educational Sub-Districts in which the applicant proposes to open/upgrade the school. In the above view of the matter, it is contended that before the amendment on 26.5.2010, the responsibility of the Manager was only to appoint protected teachers who were retrenched from schools in the same Educational District. 7. I have considered the contentions advanced. The W.P.(C) No.21744 OF 2014 5 contention raised by the petitioner that the school from which Smt. Geetha Bai was retrenched did not belong to the same Educational District has not been controverted by the official respondents in their counter affidavit. The liability of the Manager was only to make an attempt to fill up the vacancy by available protected teachers in the Educational District in question as on 5.6.2006. It appears from Ext.P14 that the Manager had sent appointment orders to all the protected teachers available in the list. The only contention is that the appointment order sent to Smt. Geetha Bai was not served on her and was returned unserved. Since it is specifically contended that Smt. Geetha Bai was not a teacher retrenched from the Educational District, the fact that an appointment order was not duly sent by the Manager cannot be a reason for rejecting the approval of appointment of the petitioner with effect from the initial date of his appointment. In the above view of the matter, the petitioner cannot be penalized for the non availability of a protected teacher to fill up the post. The petitioner had actually worked against the post from 5.6.2006. In the above view of the matter, I am of the opinion that the petitioner would be entitled to approval of appointment with effect from W.P.(C) No.21744 OF 2014 6 5.6.2006. 8. In the result, Ext.P14 order is set aside. It is directed that the petitioner's appointment as HSA Malayalam with effect from 5.6.2006 in the 5[th] respondent's School shall be approved within a period of two months from the date of receipt of a copy of this judgment. The consequential benefits shall be calculated and disbursed to the petitioner within a period of two months thereafter. The writ petition is ordered accordingly. sd/- **ANU SIVARAMAN JUDGE** sab