Saija T. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933** **WP(C).No. 9166 of 2009(M)** **----------------------------------------** ## **PETITIONER(S):** **------------------------** **SMT. SAIJA T., W/O. PUSHPAJAN P.T., AGED 32 YEARS, GREESHMAM, 6735, KENICHIA, THAZHAMUNDA P.O., WAYANAD DIST. (NOW WORKING AS (UPSA)AUP.SCHOOL ARIMULA.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.** **3. DEPUTY DIRECTOR OF EDUCATION, WAYANAD.** **4. ASSISTANT EDUCATIONAL OFFICER, SULTHAN BATHERY, WAYANAD.** **5. THE MANAGER, A.U.P. SCHOOL, ARIMULA, P.O. THAZHAMUNDA, SULTHAN BATHERY, WAYANAD DIST.** **R1 TO R4 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA R5 BY ADV. SRI.G.SANTHOSH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2011, ALONG WITH WPC NO.9167 OF 2009 & WPC NO.9180 OF 2009, THE COURT ON 23/09/2011 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.9166/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE APPOINTMENT ORDER DATED 02/06/2003 ISSUED BY THE 5TH RESPONDENT MANAGER.** - **P2 COPY OF THE ORDER NO.D/2830/03 DATED 27/08/2003 PASSED BY THE 4TH RESPONDENT ASSISTANT EDUCATIONAL OFFICER.** - **P3 COPY OF THE REJECTION ORDER NO.G3/84249/05/D.DIS DATED 06/01/2006 ISSUED BY THE 2ND RESPONDENT DIRECTOR OF PUBLIC INSTRUCTIONS.** - **P4 COPY OF THE PETITION, SUBMITTED BY THE PETITIONER DATED 20/03/2007 BEFORE THE 1ST RESPONDENT, SECRETARY TO THE DEPARTMENT OF GENERAL EDUCATION.** - **P5 COPY OF THE PETITION DATED 18/07/2007 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** - **P6 COPY OF THE ORDER NO.66553/B2/07/G.EDN DATED 05/01/2009 PASSED BY THE 1ST RESPONDENT.** - **P7 COPY OF THE JUDGMENT DATED 12/07/2005 OF THE HON'BLE COURT IN O.P.NO.1476/03.** - **P8 COPY OF THE ORDER NO.D/458/03 DATED 10/10/2005 PASSED BY THE ASSISTANT EDUCATIONAL OFFICER, SULTHAN BATHERY.** - **P9 COPY OF THE STATEMENT OF DETAILS OF TEACHERS OF THE ARIMULA AUP SCHOOL WHO WERE APPOINTED AFTER THE YEAR 1982.** - **P10 COPY OF THE JUDGMENT DATED 19/02/2009 OF THE HON'BLE COURT IN WP(C) NO.36607/08.** - **P11 COPY OF THE ORDER NO.K.DIS 9636/83/B4 DATED 13/12/1983 OF THE ASSISTANT EDUCATIONAL OFFICER.** - **P12 COPY OF THE ORDER NO.G.3/73211/96/K.DIS DATED 12/11/1999 OF THE DPI.** - **P13 COPY OF THE ORDER NO.58678/A3/2004/GL.EDN DATED 2/07/05 OF THE 1ST RESPONDENT, SECRETARY, DEPARTMENT OF GENERAL EDUCATION.** - **P14 COPY OF THE APPOINTMENT ORDER DATED 25/09/06 APPOINTING A TEACHER ON DAILY WAGES.** - **P15 COPY OF THE GOVERNMENT ORDER, G.O.(MS) NO.20/82/G.EDN DATED 15/02/1982** - **P16 COPY OF THE GOVERNMENT ORDER, G.O.(P)NO.48/2006/G.EDN DATED 01/2/2006.** **2/-** **-2-** ## **WP(C)NO.9166/2009** |**P17**|**COPY OF THE ORDER NO.G.O.(RT) NO.3805/06/G.EDN DATED 26/08/2006.**| |---|---| |**P18**|**COPY OF THE ORDER NO.EM(6)109311/04/DPI/D.DIS DATED 2/05/2007.**| |**P19**|**COPY OG THE ORDER NO.EM(6)53315/2007/DPI/K.DIS/DATED 12/11/2007.**| |**P20**|**COPY OF THE ORDER NO.EM(6)53385/2007/DPI/K/DIS DATED 24/11/2007.**| |**P21**|**COPY OF THE G.O.(RT)NO.3587/2008/G.EDN DATED 5/08/2008**| ## **RESPONDENT'S EXHIBITS:** **R5(A) COPY OF THE ORDER NO.A 24/06 DATED 29/12/2006 ISSUED BY THE 5TH RESPONDENT.** **/TRUE COPY/** **sts** **P.A.TO.JUDGE** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 9166/2009-M, 9167/2009-M & 9180/2009-N** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 23rd day of September, 2011.** ## **JUDGMENT** All these writ petitions concern the challenge against the nonapproval of appointment of the petitioners from the respective dates of appointment. The appointments have been approved with effect from 8.1.2007. The respective orders are identically worded. 2. The facts of the cases are similar. The petitioner in W.P.(C) No.9166/2009 was appointed as Assistant Teacher (UPSA) in the fifth respondent's school from 2.6.2003 as per Ext.P1 order produced therein. The petitioner in W.P.(C) NO.9167/2009 was similarly appointed as per Ext.P1 therein, dated 4.6.2004 and the petitioner in W.P.(C) No.9180/2009 was appointed with effect from 14.7.2004 by Ext.P1 order produced therein. The proposal for approval of appointments were rejected by identically worded orders, stating that the vacancies will have to be filled up by protected teachers, as per the Government Orders in that regard. The challenge against the orders by way of appeals and revisions, did not succeed. The rejection orders were issued relying upon G.O.(MS) wpc 9166, 9167 & 9180/2009 2 No.20/82/G.Edn. dated 15.7.1982 and the fact that the school was upgraded during 1982-1983. The petitioners continued with their efforts to get the appointment approved, by approaching the higher authorities. But the Director of Public Instruction also rejected the same. 3. After the various Government Orders were reviewed by allowing approval of appointment in certain cases, the petitioners approached the Government by separate representations. Finally, the Government directed approval of appointment with effect from the respective dates on the ground that a protected teacher has been subsequently absorbed in the school, from 8.1.2007. 4. The petitioners are relying upon a judgment of this Court in W.P. (C) NO.1476/2003 filed by another teacher of the school, viz. Shri T.S. Sajin (Ext.P7 produced in W.P.(C) No.9166/2009). It is pointed out that the cases of the petitioners are also similar and the objections raised were overruled by this Court by directing approval of appointment of the said petitioner. The petitioners have also contended that Exts.P12 and P13 orders produced in W.P.(C) No.9166/2009 will show that no protected teachers were available in Wayanad District for deployment at the relevant point of time. It is pointed out that one protected teacher was already wpc 9166, 9167 & 9180/2009 3 absorbed in the school even earlier, viz. Smt. B. Santha and therefore the objections cannot survive. Finally, reliance is placed on a recent judgment of this Court in W.P.(C) No.285772/008 and connected cases. It is pointed out that at no point of time, the list of protected teachers was communicated to the Manager and the failure of the same will cut at the root of the matter. 5. On behalf of the second respondent, counter affidavits have been filed in all the writ petitions. The stand taken therein is that the Government Order, viz. G.O.(MS) No.20/82/G.Edn. dated 15.7.1982 shows that 20% of the vacancies arising in 1982-1983 had to be filled up by protected teachers. G.O.(P) No.46/2006/G.Edn. dated 1.2.2006 directed appointment of at least one protected teacher. It is pointed out that in G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 the Government ordered to appoint protected teachers in all vacancies existing and arising in newly opened or upgraded schools and the later Government Order dated 1.2.2006 reviewed the same. Therefore, unless and until a protected teacher is appointed, the appointment of the petitioners could not have been approved. It is further pointed out that the condition regarding appointment of protected teacher was satisfied only on 8.1.2007, from which date the approval has been ordered. wpc 9166, 9167 & 9180/2009 4 6. The fifth respondent Manager has stated that during the academic years 2002-2003 to 2004-2005 no list of protected teachers was communicated to the Manager by any of the educational authorities. In the additional counter affidavit filed in W.P.(C) No.9166/2009 it is also contended by the Manager that in the primary level, after 3.11.1997 no protected teacher was available in Wayanad district. Ext.R5(a) is the proceedings by which the Manager appointed a protected L.G. Sanskrit (FT) teacher in an existing vacancy. It is pointed out that till the said date no other list was communicated. 7. Heard learned counsel for the petitioners, learned Govt. Pleader and learned counsel appearing for the Manager. 8. The approval of appointment of the petitioners was initially rejected relying upon G.O.(MS) No.20/82/G.Edn. dated 15.2.1982. The said Government Order is produced as Ext.P13 in W.P.(C) No.9167/2009 which shows that the direction therein was to fill up 20% of the vacancies arising in 1982-83 from the entire list of protected teachers as on 1982-83. Therefore, evidently the same was not having any application thereafter. The Government Order, viz. G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 provides for appointment of protected teachers in all vacancies. In G.O.(P) wpc 9166, 9167 & 9180/2009 5 No.46/2006/G.Edn. dated 1.2.2006 the same was relaxed and it was ordered that in schools which have started functioning during 1979-80 or upgraded during that period, at least one protected teacher should be appointed. 9. Therefore, the first question is whether till the protected teacher is appointed, the approval of appointment of the petitioners could have been postponed. Herein, the petitioners have pleaded that the Manager had earmarked one vacancy consequent on the retirement of one regular teacher on 15.9.2006 for appointment of a protected hand. The protected teacher was appointed only on 8.1.2007. It is also contended that one protected teacher, Smt. B. Santha was already appointed even earlier. But it is clear from the counter affidavit filed by the department that she was a protected teacher of the very same school who was deployed to the Government school and re-deployed back to when a regular vacancy arose. Therefore, the re-appointment of Smt. B. Santha is for providing her in the parent school alone. 10. Herein, from 8.1.2007 a protected hand has been deployed to the school in the vacancy consequent on the retirement of Shri M.M. Damodaran, a Sanskrit Teacher. Therefore, the obligation of the Manager to appoint a protected teacher has already been fulfilled. The question wpc 9166, 9167 & 9180/2009 6 considered in Ext.P7 judgment in O.P. No.1476/2003 was also similar. This Court considered the plea raised by the Manager that all other appointments made earlier, were approved and therefore no objection can be taken. Therein, in para 6 of the judgment, this Court repelled all the contentions of the department and directed approval of appointment of the petitioner. But that is a case where a claim made under Rule 51A of Chapter XIV-A of the K.E.R. was also there and therefore the judgment was also rendered on a different footing, as rightly pointed out by the learned Government Pleader. 11. The question therefore arises whether in the absence of communication of the list of protected teachers to the Manager, as envisaged by various Government Orders, the approval could be denied or postponed. A similar issue was considered by this Court in the judgment in W.P.(C) No.28577/2008 and connected cases which is reported in **Nadeera T.S. and another v. State of Kerala and others** (2011 (3) KHC 650). Therein also, the issue was identical. Initially the approval of appointment was not granted and finally it was approved with effect from 1.6.2010, the date of appointment of the protected teacher. This Court considered the various Government Orders and the relevant provisions under the Kerala wpc 9166, 9167 & 9180/2009 7 Education Rules. The various judgments of this Court laying down that the obligation of the department to communicate the list of protected teachers, has got a bearing in the matter, were also considered. The Government Orders, viz. G.O.(P) Nos.178/2002/G/Edn. dated 28.6.2002 and G.O.(P) No.46/06/G.Edn. dated 1.2.2006 and the provisions therein were examined from para 8 onwards. Finally, it was held in paragraphs 14 to 17 as follows: “14. Actually, the said Government Order was issued relaxing the conditions in G.O.No.178/2002/G.Edn. Dated 28.6.2002 wherein all the vacancies were directed to be filled up by protected hands. Paragraph No.(i) of G.O.(P)No.46/06/G.Edn. dated 1.2.2006 reads as follows: “In such schools at least one teacher should be appointed from the list of protected hands.” As direction No.(iii), the approval of appointment of 402 teachers were also ordered by the Government. It is also mentioned that if in any case a protected hand is not available, the vacancy will have to be filled up only on daily wage basis. 15. I find nothing therein which prevents approval of appointment or which postpones the approval till a protected hand is appointed by the Manager. The said Government Order restate the obligation of the Manager to appoint a protected hand. But the time factor is not mentioned therein. In many cases, availability of protected hands may be delayed and non-availability of protected wpc 9166, 9167 & 9180/2009 8 hands in certain posts may be there. Therefore, to compel a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by the staff fixation order will go against the scheme of the Act and Rules itself. When the staff fixation order permits appointment of required number of staff, the Manager will have to make the appointment in existing vacancies and exercise of the power of the Manager in such cases cannot be said to be against the scheme of the Act. In fact the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in **Manager, M.M.H.S. V Deputy Director( 1994(1) KLT 321)** taking the view that actually it is the duty of the Manager to fill up all the posts in accordance with the orders of the educational authorities fixing the staff strength. 16. Therefore, it can be see that when the Manager exercised his power to make appointment in terms of staff fixation order of a qualified teacher, the postponement of the approval on the plea that the same can be done only from the date of appointment of the protected hand may not be justified. In this context a later Government Order of the year 2009 is also worth-mentioning. The same is G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarifies G.O.No.46/06 /G.Edn. dated 1.2.2006. It is insisted therein that in the schools which have opened between 1979 and 1990 or which have been upgraded, if for any reason a protected hand is not appointed, then at least one protected teacher may be appointed in any of the existing/arising vacancies and the appointments otherwise wpc 9166, 9167 & 9180/2009 9 made shall not be approved. It is further clarified therein that if any appointments have been made in any of the schools like wise, approval can be effected from the date of appointment of a protected hand. 17. This also confirms the view that at least till the said Government Order was issued on 19.11.2009, there was no restriction to grant approval on the plea that such approval will be granted only from the date of appointment of a protected hand. In fact, going by Rule 7 of Chapter XIV-A of KER, “as soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.” As far as grant approval is concerned, normally, it should conform to the existence of vacancy and the sanction of post as per the staff fixation order and the eligibility of the teacher for appointment by fulfilling the qualification. Once these conditions are satisfied, unless there is any other legal bar for granting approval, there cannot be a refusal to grant approval normally.” This court has noticed therein a later Government Order, viz. G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarified the G.O.(P) No.46/2006/G.Edn. dated 1.2.2006. Only by the said Government Order alone a restriction was made with regard to the approval of appointment till wpc 9166, 9167 & 9180/2009 10 the protected teacher was appointed. Thus, it was held that the Manager cannot be compelled to postpone the appointment of qualified teachers even after the post is sanctioned by the staff fixation order, till a protected hand is made available. It was noticed that even though the Manager has got an obligation to appoint a protected teacher, the time factor has not been mentioned in any of the Government Orders and in many cases the availability of protected hands may be delayed and the deployment also may take much time. It was therefore held that the postponement of approval of qualified teachers in such cases, will be against the scheme of the Act and the Rules. It was then noticed in para 19 of the judgment that the Manager has already appointed a protected hand in terms of Rule 6(viii) of Chapter V of K.E.R. and finally it was held as follows: “There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009 was issued which can only be prospective. Evidently there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be postponed.” Herein also, the situation is identical. Therefore, learned counsel for the petitioners is well founded in relying upon the said judgment. wpc 9166, 9167 & 9180/2009 11 12. Going by the facts of the case also, it can be seen that there is no plea by the official respondents that the Manager failed to appoint a protected teacher even after the list of protected teachers was made available. In fact, in Ext.P10 order produced in W.P.(C) NO.9167/2009 issued by the Assistant Director of Education, in respect of another teacher of the very same school, it is mentioned that after 3.11.1997 protected teachers were not available in Wayanad District. The teacher concerned was appointed in a vacancy arose consequent on the resignation of one Shri C.P. Sudheesh, U.P.S.A. The date of the said order is 12.11.1999. There is no plea that even thereafter protected hands were available in Wayanad District. 13. Therefore, in the absence of a plea that protected hands were available in Wayanad District and the list of protected teachers were made available, the petitioners cannot be deprived of their right for approval from the date of appointment. Apart from that, as held by this Court in **Nadeera's case** (supra), there is no enabling provision which permits the Educational Officer to postpone the approval till a protected hand is appointed and the Government Order dated 19.11.2009 can only be held to be prospective also. Learned Government Pleader justified the orders, by wpc 9166, 9167 & 9180/2009 12 relying upon the pleas in the counter affidavits. For all these reasons, the petitioners are entitled to succeed in these writ petitions. The writ petitions are thus allowed. The impugned orders in all the writ petitions are quashed. It is declared that the petitioners are entitled for approval of appointment from the respective dates of appointment and there will be a direction to the fourth respondent to pass appropriate orders approving the appointment of the petitioners from the respective dates of appointment and based on the orders of appointment, viz. Ext.P1 produced in all the three cases. This shall be done within a period of one month from the date of receipt of a copy of this judgment. No costs. Petitioners will be granted the consequential monetary benefits thereafter, expeditiously. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**