Ronlee Raju Thomas v State of Kerala & Others

**WP(C) NO. 13687 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943** ## **WP(C) NO. 13687 OF 2021** ## **PETITIONER:** RONLEE RAJU THOMAS S/O RAJU THOMAS, PUTHENVEEDU, PUTHUSSERRY BHAGOM EAST, VAYALA P.O.PATHANAMTHITTA-691 554. BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ## **RESPONDENTS:** 1 STATE OF KERALA REP BY SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, ANNEXURE-11, THIRUVANANTHAPURAM-695 011. 2 THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 011. 3 THE DEPUTY DIRECTOR OF EDUCATION KOLLAM, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM-691 009. 4 DISTRICT EDUCATIONAL OFFICER KOTTARAKARA, KOLLAM, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKARA, KOTTARAKARA-691 506. 5 CORPORATE MANAGER MMC CORPORATE MANAGEMENT, DEVALOKAM, KOTTAYAM-686 004. SRI BIJOY CHANDRAN SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 13687 OF 2021** **2** ## **JUDGMENT** The refusal on the part of the respondents in approving the appointment of the petitioner as HST (English) at the St.Gregorios High School, Kottarakkara with effect from 15.12.2008 pursuant to his appointment in an established vacancy has led the petitioner to approach this Court. 2. The facts of the case as borne out from the pleadings and records are as under. a) As per Ext.P1 order of appointment issued by the 5th respondent, the petitioner was appointed as High School Teacher (English) at St. Gregorios High School, Kottarakkara with effect from 15.12.2008. The appointment was made in the promotion vacancy which arose on account of the by-transfer promotion of Sri. Babu. V. as Higher Secondary School Teacher. According to the petitioner, he was appointed as HST (English) without prescribing any time limit. The by-transfer promotion of Sri.Babu was approved by the Regional Deputy Director of Higher Secondary Education by Ext.P11 order dated 24.10.2008, even prior to the appointment of the petitioner. b) The petitioner states that he continued to work as HST (English) at St. Gregorios High School till 15.07.2010. Consequent to the staff fixation order of the year 2010-2011 of the MAM HS, Chengamanad, **WP(C) NO. 13687 OF 2021** **3** the Corporate Manager shifted Smt. Priya Paul, HST (English) working in the said school to the post occupied by the petitioner at the St.Gregorios HSS, Kottarakkara and the petitioner was in turn posted as HST (English) at St. George VHSS, Chovalloor. The junior most HST (English), was retrenched with effect from 15.7.2010. This fact would be evident from Ext.P10. c) Meanwhile, the 5th respondent submitted the proposal for appointment of the petitioner together with the necessary documents before the 4th respondent. However, the DEO by Ext.P2 proceedings dated 16.1.2009, rejected the proposal for the following reasons: - (1) As per Govt. Order G.O.(Rt) No.104/08 dt. 10.06.08 all appointments after 2.6.08 have to be made on daily wages. - (2) Directions issued in ET/7693/DDI/K.Dis. dt. 21.11.08 not complied with. - (3) Appointments of regular senior teachers are pending. d). Being aggrieved by Ext.P2 order, the 5th respondent preferred Ext.P3 appeal before the 3rd respondent pointing out that there were no protected HST (English) teachers available in Kollam District for deployment. Reference was made to Ext.P12 letter dated 6.8.2008 issued by the 3rd respondent to the Manager confirming that there are no qualified protected HST (English) teachers available at that point of time either in Kollam district for deployment. The Manager also reiterated that the subject ratio has to be maintained and **WP(C) NO. 13687 OF 2021** **4** undertook that they are willing to keep one post for appointing a protected teacher in the next arising vacancy. The appeal was however rejected by Ext.P5 order. e) Being aggrieved, the Manager is stated to have preferred a revision petition before the 2nd respondent. However, by Ext.P6 order dated 25.2.2010, the revision petition was dismissed on the ground that the G.O.(Rt)104/08/G.Edn dated 10.06.08 was not yet revised by the Government and that the Manager had not appointed a protected teacher in the school. Challenging Ext.P6, the Manager is stated to have filed Ext.P7 revision petition before the 1st respondent. Placing reliance on Exts.P9 and P10 responses received from the offices of the respondents, it is contended that though reports were called for, from the DEO, Kottarakkara, no orders have been passed in the revision petition to date. Relying on Ext.P19 information received under the Right to Information Act issued on 21.7.2021, it is contended that the petitioner was told that the revision petition filed by the petitioner is not traceable. f) According to the petitioner, the reasons given by the respondents for not approving the appointment cannot be sustained in view of the law laid down by this Court in **Moosakutty v DEO Wandoor** [2009 (3) KLT 863], **Nadeera Vs State of Kerala** [2011 (3) KLT 790] and that of the Apex Court in **State of Kerala v Sneha Cherian** [2013 **WP(C) NO. 13687 OF 2021** **5** ## (1) KLT 755] 3. Though several opportunities were granted to the respondents to place a statement on record, no statement has been filed. 4. Sri. M.A.Fayaz, the learned counsel appearing for the petitioner submitted that from Ext.P12 it would be emphatically clear that when the vacancy arose on 5.8.2008, there were no qualified protected HST (English) teachers available. Placing reliance on Ext.P13, it is contended that the 2nd respondent after taking note of all the relevant aspects had issued Exhibit P13 letter stating that the appointments to the post of HST (English) can be made if no protected teacher is available subject to the condition that the Manager executes an undertaking that a protected teacher shall be appointed in any other vacancy. The learned counsel would urge that in the light of the law laid down in **Nadeera** (supra) and **Moosakutty** (supra), the request of the Manager to grant approval could not have been refused. The learned counsel would refer to Ext.P15 and P15(a), and it is urged that the 3rd respondent had issued orders deploying one teacher working in Government High School, Pooyappilly and had posted the teacher at the St. Gregorios High School, Kottarakkara, thus complying with the stipulations to appoint a protected teacher. Finally, it is submitted that Ext.P7 revision petition was filed by the Manager as early as 23.3.2010 and after a decade, it has been informed that the revision petition itself is not traceable. **WP(C) NO. 13687 OF 2021** **6** 5. The learned Government Pleader advanced submissions supporting the order passed by the respondents. It is contended that the impugned order does not warrant any interference. 6. I have anxiously considered the submissions advanced and have perused the records. There cannot be any dispute as regards the fact that the petitioner was appointed in a regular established vacancy in the St.Gregorios High School, Kottarakkara, consequent to the by-transfer promotion of Sri. Babu. Ext.P11 would reveal the approval of the appointment of Sri. Babu was granted with effect from 5.8.2008. There is no case for the respondents that the appointment of the petitioner as per Ext.P1 order was limited by any duration constraints. 7. One of the grounds for rejecting the appointment was that since St.Gregorios High School comes under the definition of a ‘newly opened school’, one protected teacher had to be appointed. However, Ext.P12 letter issued by the 3rd respondent reveals that at the time of appointment of the petitioner as HST (English) there was no protected HST (English) available under the 3rd respondent. Furthermore, the 2nd respondent had informed the Manager by Ext.P13 letter that appointment to the post of HST (English) can be made if no protected teacher is available and on the Manager undertaking to appoint a protected teacher in any other vacancy. Ext.P14 circular issued by the 1st respondent also states that if no qualified protected HST (English) is available, the said post can be filled up by a fresh HST (English) and the said **WP(C) NO. 13687 OF 2021** **7** appointment has to be approved. Ext.P15 and P15(a) also reveal that the Manager had complied with the stipulations and had appointed Smt. S. Manju, protected HSA (Physical Science) from Govt. H.S., Pooyappilly at the St.Gregorios High School, Kottarakkara. As held by this Court in **Nadeera** (supra), in case of unavailability of protected hands in certain posts, the Manager cannot be compelled to postpone the appointment of a qualified teacher even after the post is sanctioned by staff fixation as it would go against the scheme of the Act and the Rules. In other words, there is no enabling provision that allows the educational officer to postpone the approval as has been done in the instant case **.** 8. This Court in **Nadeera** (supra) had emphatically held 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. The 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. Of course, the manager is obliged to appoint a protected hand as per Chapter V Rules 6 (viii). However, the said requirement cannot be taken to mean that the approval of a qualified teacher like the petitioner herein can be denied, even when a protected teacher is unavailable. 9. The next reason for denying approval is that as per Govt. Order G.O.(Rt) No.104/08 dated 10.06.08 all appointments after 2.6.2008 have to be **WP(C) NO. 13687 OF 2021** **8** made on daily wages. This issue was the subject matter of consideration in **Sneha Cheriyan** (supra). The Apex Court had held that the Manager of an aided school can appoint the teachers in vacancies that occurred due to death, retirement, promotion, resignation, long term leave vacancy provided there is an established vacancy. It is also pertinent to note that on consideration of the challenge therein against G.O.(P) No.104/2008/G.Edn. dated 10.06.2008, it was held that the appointments made by the Manager in schools for a duration exceeding one academic year can be filled up on scale of pay basis. In that view of the matter, approval could not have been denied on that ground. 10. I am not impressed with the contention of the learned Government Pleader that in view of the pendency of the revision petition, the petitioner has to be relegated to the said authority. Ext.P7 is the revision petition filed by the Manager challenging Ext.P6 order passed by the 2nd respondent. The said revision petition was filed in the year 2010. The petitioner has been dutifully inquiring about the status of the petition and he was informed by Exhibit P8 and P9 letters that reports have been called from the educational Authorities. It was in the said circumstances that the petitioner had approached this Court. During the pendency of the writ petition, Exhibit P19 information has been issued to him wherein it is stated the Revision Petition filed by him is not traceable. In view of the discussion above, I do not think that any purpose would be served in relegating the petitioner to the 1st **WP(C) NO. 13687 OF 2021** **9** respondent. 11. In view of the above discussion, I am of the view that the petitioner is entitled to succeed. Exhibits P2, P5 and P6 orders will stand set aside. There will be a direction to the 4th respondent to approve the appointment of the petitioner as HST (English) on the basis of Exhibit P1 appointment order with effect from 15.12.2008 with all consequential benefits. The needful shall be done within a period of two months from the date of production of a copy of the judgment. This writ petition will stand disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ps **WP(C) NO. 13687 OF 2021** **10** ## **APPENDIX OF WP(C) 13687/2021** PETITIONER'S EXHIBITS: |Exhibit P1|PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED| |---|---| ||BY THE 5TH RESPONDENT MANAGER DATED| ||15.12.2008| |Exhibit P2|PHOTOCOPY OF THE PROCEEDINGS NO| ||B6/8322/08/K.DIS DATED 16.1.2009 ISSUED BY| ||THE 4TH RESPONDENT| |Exhibit P3|PHOTOCOPY OF THE APPEAL FILED BY THE 5TH| ||RESPONDENT MANAGER AGAINST EXHIBIT P2| ||DATED 4.2.2009| |Exhibit P4|PHOTOCOPY OF THE LETTER NO.140/2008 DATED| ||9.6.2009 ISSUED BY THE 5TH RESPONDENT| ||MANAGER| |Exhibit P5|PHOTOCOPY OF THE ORDER NO B4-2258/09/L.DIS| ||DATED 14.8.2009| |Exhibit P6|PHOTOCOPY OF THE ORDER NO.| ||ETI/3900/2010/DPI/K.DIS DATED 25.2.2010| ||ISSUED BY THE 2ND RESPONDENT| |Exhibit P7|PHOTOCOPY OF THE REVISION PETITION FILED| ||BY THE 5TH RESPONDENT DATED 23.3.2010| |Exhibit P8|PHOTOCOPY OF THE REPLY RECEIVED FROM THE| ||1ST RESPONDENT UNDER THE RTI ACT VIDE| ||LETTER NO.52643/E2/14/G.EDN DATED| ||30.9.2014| |Exhibit P9|PHOTOCOPY OF THE LETTER NO E.T.(1)/| ||72902/2015/DPI/K.DIS DATED 28.9.2015| ||ISSUED BY THE 2ND RESPONDENT| |Exhibit P10|PHOTOCOPY OF THE PROCEEDINGS NO.212/2010| ||DATED 1.1.2011 ISSUED BY THE 5TH| ||RESPONDENT MANAGER| |Exhibit P11|PHOTOCOPY OF ORDER NO TRO/5/4339/08/HSE| ||DATED 24.10.2008 OF THE REGIONAL DEPUTY| ||DIRECTOR OF HIGHER SECONDARY EDUCATION| ||THIRUVANANTHAPURAM| **WP(C) NO. 13687 OF 2021** **11** - Exhibit P12 PHOTOCOPY OF THE LETTER NO B4-12593/08 DATED 6.8.2008 - Exhibit P13 PHOTOCOPY OF THE LETTER NO H1/74706/2008/DPI DATED 24.11.2008 - Exhibit P14 PHOTOCOPY OF THE CIRCULAR NO 7/J2/2005/G.EDN DATED 4.4.2005 ISSUED BY THE 1ST RESPONDENT - Exhibit P15 PHOTOCOPY OF THE LETTER NO B1/11451/2010 DATED 15.12.2010 - Exhibit P15(A) PHOTOCOPY OF THE RELIEVING LETTER ISSUED BY THE GOVERNMENT HIGH SCHOOL POOYAPPALLY DATED 3.1.2011 - Exhibit P16 PHOTOCOPY OF THE REPLY RECEIVED FROM THE OFFICE OF THE DEO KOTTARAKKARA VIDE LETTER NO.A1/8947/2009/L.DIS DATED NIL - Exhibit P16(A) PHOTOCOPY OF THE REPLY UNDER THE RTI ACT VIDE NO.A1/5084/09 DATED 20.10.2009 OF THE DEO PUNALLOOR - Exhibit P16(B) PHOTOCOPY OF THE REPLY UNDER THE RTI ACT VIDE LETTER NO/A4-9718/09 DATED 7.10.2009 BY THE DEO KOLLAM - Exhibit P17 PHOTOCOPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15.10.2018 - Exhibit P18 PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RTI ACT BEFORE THE 1ST RESPONDENT DATED 1.6.2021 - EXHIBIT P19 PHOTOCOPY OF LETTER NO.E2/104/2021/G.EDN DATED 21.07.2021