High Court of KeralaSingle Judge2014-08-01Writ petition allowed; appointment to be approv...

S. Sreelekha v. State of Kerala and others

Case / Petition Number:W.P.(C). No.12380/2012

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2014-08-01
Court Decision / Holding: Petition allowed; Ext.P2 sanction to be treated as effective from 6.8.2004; Ext.P2 and Ext.P6 are set aside; appointment to be approved from the date of appointment; 6th respondent to issue orders within six weeks; consequential benefits to be disbursed expeditiously.
Final Disposition: Writ petition allowed; appointment to be approved from the date of appointment; government orders amended accordingly; six weeks for ensuing orders; consequential benefits to be disbursed promptly.

Parties to the Case

Appellants / Petitioners

S. Sreelekha

Respondents

The State of Kerala represented by its Secretary to Government General Education Department, Government Secretariat, Thiruvananthapuram
The Director of Public Instructions, Jagathy, Thiruvananthapuram
The Deputy Director of Education, Alappuzha
The District Educational Officer, Chavakkad, Thrissur
The District Educational Officer, Cherthala, Alappuzha
The District Educational Officer, Alappuzha
The Corporate Manager - Sree Narayana Trust Schools, Kollam

Legal Representation & Advocates

Counsels for Petitioners

• Sri.V.A. Muhammed
• Sri.K.E. Hamza

Counsels for Respondents

• Government Pleader Sri.P.V.Elias
• Sri.A.N.Rajan Babu (Adv) for R7
• Sri.P.Gopalakrishnan (Adv) for R7

Case Synopsis & Summary

This writ petition challenges the denial of approval of the petitioner’s appointment as High School Assistant (Mathematics) at Sree Narayana Trust Higher Secondary School, Natika. The petitioner was appointed w.e.f. 6.8.2004 and later transferred within the Sree Narayana Trust schools. She contends that, under Government Orders such as GO(P)178/2002/G.Edn dated 28.6.2002, the Deputy Director of Education was obliged to furnish a list of protected teachers to the manager so that appointments could be made from that list on vacancy. The petitioner argues that, as no such list was supplied to the manager, there was no fault on the part of the 7th respondent in not appointing a protected teacher prior to her appointment, and in light of the principle laid down in Nadeera v. State of Kerala (2011) 3 KLT 790, her appointment should be approved from 6.8.2004. The counter affidavit disputes this on grounds that government orders allow manager appointments in newly opened schools only if no protected teacher is available elsewhere, and that a list was not forwarded. The court, however, finds that the absence of a forwarded list cannot justify withholding approval and that the petition should be allowed. Ext.P2’s sanction restricted to 11.6.2009 and Ext.P6’s order of 1.6.2011 are set aside; the appointment must be approved from the date of appointment itself. The 6th respondent is directed to pass appropriate orders within six weeks, with consequential benefits to be disbursed expeditiously.

Provisions of Law Cited

G.O.(P) 178/2002/G.Edn dated 28/06/2002G.O(M.S) No.347/98/G.Edn dated 01/09/1998G.O.(P) 19/09/G.Edn dated 09/02/2009G.O(RT) 1621/2011/G.Edn dated 30/04/2011Circular No. 74101/J2/2004/G.Edn dated 24/01/2005G.O(RT) NO.3776/2006/G.Edn dated 24/08/2006

Legal Doctrines & Maxims

Nadeera v. State of Kerala (2011) 3 KLT 790 — principle that approval cannot be postponed merely because a protected teacher’s list was not furnished when the manager acted in accordance with staff fixation order; failure of authority to furnish the list vitiates denial of approval
Judgment in W.P(C) 2563/2008 (dated 24/09/2008) — supports the position that appointment can be approved from the date of appointment if the protected-teacher list was not provided by the competent authority
Judgments W.P(C).564/2009 (22/09/2011) and W.P(C).NO.34809/2010 (11/07/2011) — cited as supportive precedents in the context of staff-fixation and appointment procedures

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that, in view of GO( P ) 178/2002/G.Edn and related orders, the Deputy Director should furnish a list of protected teachers so that the manager could appoint from that list. The lack of such a list should not bar approval of the petitioner’s appointment from 6.8.2004, particularly in light of Nadeera v. State of Kerala, and Ext.P10 and Ext.P11. The petitioner sought a declaration that her appointment be approved from the date of appointment and for consequential benefits.

Contentions of Respondents

The respondents contended that GO( M.S. )347/98/G.Edn clarifies that a manager may appoint in newly opened schools only if there is no protected teacher available in the same district or other districts; the absence of a forwarded list undermines the petitioner’s argument; however, the court eventually relies on other authorities and finds fault with the respondents’ stance.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Nadeera v. State of Kerala	2011 (3) KLT 790	Positive	Court relied on this decision to reject postponement of approval solely because a list of protected teachers was not supplied.
W.P.(C).2563/2008	Judgment dated 24/09/2008	Positive	Cited as precedent supporting earlier rulings on appointment and approval in the absence of a forwarded protected-teacher list.
W.P.(C).564/2009	Judgment dated 22/09/2011	Positive	Cited as supportive precedent in staff-fixation/appointment contexts.
W.P.(C).NO.34809/2010	Judgment dated 11/07/2011	Positive	Cited as supportive background to the court’s reasoning on appointment approval and protected-teacher issues.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936 WP(C).No. 12380 of 2012 (V) ---------------------------- PETITIONER(S): ----------------- S.SREELEKHA, AGED 35 YEARS AGED 35 YEARS, W/O. VINOD HIGH SCHOOL ASSISTANT (MATHS) SREE NARAYANA TRUST HIGHER SECONDARY SCHOOL NANGIARKULANGARA, HARIPPAD, ALAPPUZHA DISTRICT. BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): - -------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE DIRCTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM - 14. 3. THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA - 688 001. 4. THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT -680 506. 5. THE DISTRICT EDUCATIONAL OFFICER CHERTHALA, ALAPPUZHA DISTRICT. 6. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA DISTRICT. 7. THE CORPORATE MANAGER - SREE NARAYANA TRUST SCHOOLS, KOLLAM. R7 BY ADV.SRI.A.N.RAJAN BABU R7 BY ADV. SRI.P.GOPALAKRISHNAN (MVA) R1 TO R6 BY GOVERNMENT PLEADER SRI.P.V.ELIAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).12380/12 ## APPENDIX PETITIONER'(S) EXHIBITS: EXHIBIT-P1-TRUE COPY OF THE G.O(MS) 19/09/G.EDN. DATED 09/02/2009. EXHBIT-P2-TRUE COPY OF THE G.O(RT) 1621/2011/G.EDN.DATED 30/04/2011. - EXHIBIT-P3-TRUE COPY OF THE APPOINTMENT ORDER DATED 11/06/2009 AND APPROVAL THEREOF DATED 21/01/2012 OF THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. - EXHIBIT-P4-TRUE COPY OF THE LETTER DATED 13/11/2009 OF THE DEPUTY DIRECTOR OF EDUCATION. - EXHIBIT-P5-TRUE COPY OF THE ORDER NO.E.M (6)/56705/06/DPI/ D.DIS DATED 01/06/2007 OF THE DIRECTOR. - EXHIBIT-P6-TRUE COPY OF THE ORDER NO. EM (6) 109313/04/DPI/ K.DIS DATED 25/10/2007 OF THE DIRECTOR - EXHIBIT-P7-TRUE COPY OF THE ORDER NO. EM 6 /53315/07/ DPI/K.DIS DATED 12/11/2007 OF THE DIRECTOR. - EXHIBIT-P8-TRUE COPY OF THE ORDER NO. EM 6/53385/2007/DPI/. K.DIS DATED 24/11/2007 OF THE DIRECTOR. - EXHIBIT-P9-TRUE COPY OF THE ORDER NO. EM 6/13136(10/08/DPI/K.DIS DATED 20/05/2008 OF THE DIRECTOR. - EXIHIBIT-P10-TRUE COPY OF THE G.O(P) 178/2002/G.EDN.DATED 28/06/2002 OF THE GOVERNMENT. - EXHIBIT-P11-TRUE COPY OF THE CIRCULAR NO. 74101/J2/2004/G.EDN. DATED 24/01/2005 OF THE GOVERNMENT. - EXHIBIT-P12-TRUE COPY OF THE G.O(RT)NO.3776/2006/G.EDN.DATED 24/08/2006 OF THE GOVERNMENT. - EXHIBIT-P13-TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) 2563 OF 2008 DATED 24/09/2008. - EXHIBIT-P14-TRUE COPY OF THE DECISION REPORTED IN 2011 (3) KLT 790 DATED 04/08/2011. - EXHIBIT-P15-TRUE COPY OF THE JUDGMENT IN W.P(C) 564/2009 DATED 22/09/2011. - EXHIBIT-P16-TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.34809 OF 2010 DATED 11.7.2011. RESPONDENTS' EXHIBITS :NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.12380 OF 2012 ==========================** Dated this the 1[st ] day of August, 2014 ## **JUDGMENT** The petitioner was appointed as High School Assistant (Mathematics) with effect from 6.8.2004 in Sree Narayana Trust Higher Secondary School, Natika by the 7[th] respondent. Subsequently, the petitioner was transferred to Sree Narayana Trust Higher Secondary School, Cherthala on 1.6.2005 and from there, she was transferred to Sree Narayana Trust Higher Secondary School, Nangiarkulangara on 20.7.2006. This writ petition has been filed on being aggrieved by the refusal to approve the appointment of the petitioner as H.S.A alleging failure on the part of the 7[th] respondent in appointing a protected teacher in Sree Narayana Trust Higher Secondary School, Natika prior to the initial appointment of the petitioner. The contention of the petitioner is that going by G.O.(P) **W.P.(C).12380/12** 2 No.178/2002/G.Edn. dated 28.6.2002, the Deputy director of Education was duty bound to send a list of teachers to the manager to enable him to effect appointment from such list on occurrence of a vacancy in the said school. In this case, no such list was furnished to the manager despite the mandate in Exts.P10 and P11 and therefore, according to the petitioner, no fault could be attributed on the 7[th] respondent in not appointing a protected teacher in place of the petitioner. It is contended that in the said circumstances, in the light of the dictum laid down by this Court in **Nadeera v. State of kerala** reported in **2011 (3) KLT 790,** the petitioner is entitled to get approval to her appointment with effect from 6.8.2004. 2. A counter affidavit has been filed in this writ petition on behalf of the second respondent. Various contentions have been raised to resist the claims and contentions of the petitioner. Paragraph 7 of the counter affidavit reads thus:- “It is submitted that Exhibit P4 order issued by **W.P.(C).12380/12** 3 the Deputy Director of Education, Alappuzha will not help the case of the petitioner, since Government in G.O.(M.S)No.347/98/G.Edn dated 01.09.1998 has clarified that the Manager will be permitted to make appointment in newly opened school only if there is no protected teacher available in the category in the same sub district/Educational district or in any other sub district/Educational district. Protected teachers are available in other educational district/sub district at that time.” 3. A scrutiny of the said statement would reveal that it is only a vague statement and it is a fact that the specific assertion of the petitioner in ground (d) was not specifically refuted by the second respondent. In such circumstances, it is to be taken that despite the mandate in Ext.P10 and Ext.P11 government orders, the third respondent failed to forward the list of protected teachers in the concerned category to the 7[th] respondent and when the said position is obtained, in the light of **Nadeera** 's case (supra) and a number of judicial pronouncements on the subject, no laches or lapses or flaw could be attributed on the 7[th] respondent in not appointing a protected teacher prior to the appointment of the petitioner on 6.8.2004. In such **W.P.(C).12380/12** 4 event, there will not be any justification for the respondents to decline to approve the appointment of the petitioner from 6.8.2204 assigning such a reason. The position obtained in the light of **Nadeera's** case (supra) is not disputed by the respondents. In the said decision, it was held by this Court that when a manager exercises his power to make appointments in tune with staff fixation order by appointing a qualified teacher against the post, the postponement of the approval on the plea that the same could be done only from the date of appointment of protected teacher is not justified when the concerned competent authority failed to furnish a list of protected teachers in the concerned category to the manager. No specific case has been put forth in the counter affidavit to the effect that the list of protected teachers belonging to any category was forwarded to the 7[th] respondent for effecting appointment and the 7[th] respondent failed to effect appointment of protected teachers from such a list despite the existence of vacancies. In the light of the factual position obtained in this case and in the light of **Nadeera'** s case (supra) and also Ext.P15 **W.P.(C).12380/12** 5 judgment, this writ petition is only to be allowed and accordingly, it is allowed. In such circumstances, Ext.P2 G.O to the extent it accorded sanction for the appointment of the petitioner only with effect from 11.6.2009 at Sree Narayana Trust Higher Secondary School, Nangiarkulangara and the order issued by the 6[th] respondent as per proceedings No.B4/480/11D-Dis dated 21.1.12 pursuant to Ext.P2 G.O approving appointment only with effect from 1.6.2011 are set aside. It is made clear that the appointment of the petitioner is liable to be approved from the date of appointment itself. The 6[th] respondent shall pass appropriate orders in the matter in tune with the directions herein expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Needless to say that consequential benefits flowing from such approval to the appointment shall be disbursed to the petitioner expeditiously. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).12380/12** 6 **C.T. RAVIKUMAR, J.** **W.P.(C).12380/12** 7 **JUDGMENT September, 2010**