Sajitha P v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 30TH DAY OF AUGUST 2013/8TH BHADRA, 1935** **WP(C).No. 4705 of 2012 (K)** **---------------------------** ## **PETITIONER:** **--------------------------** **SAJITHA P, AGED 30 YEARS HIGH SCHOOL ASSISTANT (MATHS) M.J.HIGHER SECONDARYSCHOOL, ELETTIL RESIDING AT PARAYIL HOUSE, PUNOOR, CHERUPALAM.P.O KOZHIKODE-673585.** **BY ADVS.SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) SRI.K.N.SATHEESAN** ## **RESPONDENTS:** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.** **3. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT. 4. THE MANAGER, M.J.HIGHER SECONDARY SCHOOL, ELETTIL, KOZHIKODE PIN-673572.** **R1-R3 BY ADV. GOVERNMENT PLEADER SRI. P.S. SAJEEV** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 4705 of 2012 (K)** ## **APPENDIX** ## **PETITIONER EXHIBITS** - **EXT-P1 A TRUE COPY OF THE ORDER DATED 21.3.2007 ISSUED BY THE IST RESPONDENT.** - **EXT-P2 A TRUE COPY OF THE ORDER DTD.26.2.2008 OF THE IST RESPONDENT** - **EXT-P3 A TRUE COPY OF the JUDGMENT DATED 21.6.2011 IN WP (C).17204/11 OF 2008.** - **EXT.P4 A TRUE COPY OF THE ORDER DATED 16.11.2011 ISSUED BY THE IST RESPONDENT.** - **EXT.P5 A TRUE COPY OF THE G.O.RT.NO.3805/06/G.EDN DATED 26.8.2006.** ## **RESPONDENTS' EXHIBITS NIL** ## **TRUE COPY** **P.A TO JUDGE** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.4705 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 30[th] day of August, 2013** ## **J U D G M E N T** The petitioner is an HSA (Mathematics), appointed on 1.11.2002, in a retirement vacancy. When approval was sought, initially the same was declined on the ground that the Manager was duty bound to comply with G.O(Ms)11/02/G.Edn. dated 7.1.2002 which mandated the appointment of HSA (English) to a newly arising vacancy. Though in appeal the DDE reversed the Order, subsequently the DDE on a reference made by the DEO cancelled the same. Admittedly, at the time of appointment of the petitioner the said G.O was set aside by a judgment of the learned Single Judge of this Court reported in **Suguna Prakash v. State of Kerala (2002(3) KLT 488)** . The approval was declined on the ground that subsequently a Division Bench reversed the above judgment in **Baiju v. Suguna Prakash (2003 (2) KLT 182)** and the G.O had to be enforced. 2. In the revision filed against the order by which the approval was declined, Government noticed G.O(P) WPC.No.4705/2012 : 2 : 46/06/G.Edn. dated 1.2.2006 and held that the appellant is entitled to be approved from 1.2.2006 as per the specific conditions of the said G.O of 2006. A review was filed before the Government for approval of appointment with effect from 1.11.2002, which was rejected by a non-speaking orderExt.P2. This was challenged in an earlier writ petition and a learned Single Judge of this Court, by Ext.P3 judgment set aside the order and directed re-consideration of Ext.P2 representation after hearing the petitioner. Ext.P4 order passed in pursuance of Ext.P3 judgment is impugned in the present writ petition. 3. In Ext.P4, the specific stand taken by the Government was that since the petitioner is a beneficiary of G.O(P) 46/06/G.Edn. dated 1.6.2006 her approval can be only prospective since the G.O sought to regularise the alleged irregular appointments made by the Manager, i.e, appointments made without appointing a protected teacher. Hence, the approval from 1.11.2002, i.e, the date of initial appointment of the petitioner in a retirement vacancy, was declined for the reason that no protected teacher was WPC.No.4705/2012 : 3 : appointed by the Manager. 4. It is pertinent that the issue of prospective appointment as per G.O dated 1.6.2002 came up for consideration before this Court in W.A 178/2012 and this Court by judgment dated 19.2.2013 in **State of Kerala v. Nadeera** confirmed the judgment of the learned Single Judge directing approval from the original date of appointment. The Division Bench specifically noticed that none of the G.Os indicated that, in the absence of appointment of a protected teacher in the vacancy or vacancies the teachers who are regularly appointed by the Managers would not be entitled for approval of their appointments. The compulsion with respect to appointment of a protected teacher came only by a circular dated 19.11.2009 was the clear finding of the Division Bench. The Division Bench in the said judgment said so:- “6. Now the question is whether this circular could be implemented retrospectively having regard to the facts of the present case that the regular teachers were appointed in the year 2005 in the existing vacancies. So far as the protected teachers available in the respondent school, there is no complaint from the department that the Managers have violated or discriminated the protected teachers available in the schools itself. What is WPC.No.4705/2012 : 4 : required as per 2002 circular or 2006 circular is, if the list of protected teachers is forwarded by the Assistant Educational Officer concerned to the Deputy Director, which is made available to the Managers, then the Managers have no choice or option than to appoint protected teachers by filling up all the vacancies with protected teachers upto 2006 Government order. After 2006, atleast one protected teacher had to be appointed from the said list. What is relevant is the list of protected teachers from other managements will not be available with the schools, where vacancies existed or arise in future. The schools, who have to be presumed as new establishments, though commenced much earlier from a particular date as indicated above, definitely, there would be existing vacancies and future vacancies also would arise. Apart from the protected teachers, who worked for a particular management, the management will not have the list of protected teachers from other managements. This information would be available only with the department, as all the managements are expected to send the list of protected teachers, which would be maintained education district-wise and category-wise. Therefore, it is mandatory on the part of the department to maintain such list and once such list is sent to the managements, if there is violation of any direction or guideline, then the managements could be found fault with. In the absence of sending such list, if the guideliens are expected to be implemented by the schools, it would be mere exercise like searching in vacuum or air. Then what should be the position of vacancies in such schools? As per the existing procedure, in the month of July of every year, staff fixation order has to be passed WPC.No.4705/2012 : 5 : depending upon the number of students available in a particular class of a particular school vis-a-vis the accommodation available in the said school. This would result in either increase in the number of teachers or decrease in the number of teachers. The exercise has to be compulsorily done every year so as to see that the students would not suffer from want of teachers and there is proper teaching faculty available in the school, which would cater to the needs of the schools. In case protected teacher is not available, the vacancies cannot be kept vacant for all time to come, as the managements would be found fault with by the department and also the parents, who send their children for education to a particular school. If vacancies are kept unfilled, the department can take action against the management. It is not the case of the department that the management conceal the list of protected teachers and intentionally violated the guidelines. There is no obligation on the part of the Managements of these aided schools to secure list of protected teachers.” 5. Admittedly, the petitioner's appointment was to a regular vacancy and it does not result in displacement of an HSA(English) appointed as per G.O dated 7.1.2002. The petitioner was appointed in a regular post and continued. The Government, in the instant case also, as was noticed by the Division Bench (supra), has no case that a protected teacher was not appointed by the Manager despite a list being WPC.No.4705/2012 : 6 : supplied by the educational authorities. Going by the dictum laid down by the Division Bench, the writ petition deserves to be allowed and I do so, directing the Government to grant approval to the petitioner with effect from 1.11.2002, her initial appointment. The above directions are to be complied with, within a period of the three weeks from the date of receipt of copy of this judgment. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge