Shahina Baby P. v. Assistant Educational Officer Mannarkkad, Palakkad District; Director of Public Instructions, Thiruvananthapuram; State of Kerala; Manager, Thorakkattil Abdul Khader Haji Memorial U.P. School; Deputy Director of Education, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** ## **FRIDAY ,THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940** ## **WP(C).No.16753 of 2015** ## **PETITIONER:** **SHAHINA BABY P., URDU TEACHER, THORAKKATTIL ABDUL KHADER HAJI MEMORIAL UPPER PRIMARY SCHOOL (TAM U.P.SCHOOL), EDATHANATTUKARA WEST, MANNARKKAD, PALAKKAD DISTRICT.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** - **1 THE ASSISTANT EDUCATIONAL OFFICER MANNARKKAD, PALAKKAD DISTRICT - 678 582.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 001.** - **3 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** - **4 THE MANAGER THORAKKATTIL ABDUL KHADER HAJI MEMORIAL UPPER PRIMARY SCHOOL (TAM U.P.SCHOOL), EDATHANATTUKARA WEST, MANNARKKAD, PALAKKAD DISTRICT - 678 542.** - **5 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD - 678 001.** **SENIOR GOVT PLEADER,SRI.SURIN GEORGE IPE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON 14.12.2018 DELIVERED THE FOLLOWING:** **WP(C).No.16753 of 2015** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The writ petition has been filed seeking to quash Exts.P3 and P4 staff fixation orders as also Exts.P7, P10 and P16 orders issued by respondents 5 and 3. The petitioner also seeks a direction to approve the appointment of the petitioner as Full Time Urdu Teacher with effect from 22.07.2009 by allowing Group-C diversion. 2. The writ petitioner contends that one Mr.Youseph, who was a Full Time Urdu Teacher in the 4[th] respondentSchool, died on 17.06.2009. In Ext.P3 staff fixation order issued on 14.07.2009, the said post of Urdu Teacher was declared as Part Time. The petitioner was appointed against the said vacancy on 22.07.2009. According to the petitioner, she was appointed as Full Time Urdu Teacher as there was requirement of a Full Time Urdu Teacher. On 15.12.2010, as per Ext.P6, the Manager of the 4[th] respondent-School made a request to the Deputy Director of Education to direct the **WP(C).No.16753 of 2015** **3** Assistant Educational Officer, Mannarkkad to revise the staff fixation order by sanctioning Full Time post for Urdu, by applying Group-C diversion. On 17.03.2011, the DDE addressed a letter to the AEO directing the AEO to act on the request of the Manager as per GO(MS) No.220/2010 G.Edn. dated 04.11.2010. In the meanwhile, it is reflected from the pleadings of the case that one E.Mallika, a protected teacher, was appointed in the School on 31.03.2011. The petitioner stated that her appointment as Part Time Urdu Teacher was approved only with effect from 01.06.2011. 3. The 4[th] respondent filed an appeal before the 3[rd] respondent on 31.10.2012 seeking to quash the order of the Director of Public Instructions and issue necessary instructions to approve the appointment of the petitioner as Junior Urdu Teacher (Full Time) from 22.07.2009 onwards. The said petition was rejected by the 3[rd] respondent as per Ext.P10 order dated 26.05.2014. In the meanwhile, the petitioner also preferred a revision petition before the 3[rd] respondent on 13.09.2014 as per Ext.P11. The petitioner **WP(C).No.16753 of 2015** **4** also filed W.P.(C) No.24489/2014 before this Court. This Court, having regard to the rival submissions made by the parties, disposed of the writ petition directing the 3[rd] respondent to pass appropriate orders on Ext.P11 revision filed by the petitioner. The 3[rd] respondent, however, rejected the revision petition filed by the petitioner on the ground that the petitioner cannot be appointed as Full Time Urdu Teacher with effect from 22.07.2009, as she was included in the list of teachers working without salary during the relevant time. The 3[rd] respondent also held that the post cannot be upgraded as Full Time as Group-C diversion was limited by the 3[rd] respondent only up to the academic year 2010-2011. Aggrieved by the said Ext.P16 order, the petitioner has filed the writ petition. 4. The 5[th] respondent-DDE has filed a statement in the writ petition controverting the allegations made by the petitioner. According to the 5[th] respondent, the School in question was a newly started School and the Manager thereof did not appoint protected teachers in his School. It **WP(C).No.16753 of 2015** **5** was only after issuing order No.B3/21875/10 dated 21.03.2011 from the office of the DDE, a protected teacher namely, Smt.E.Mallika, was appointed in the School who joined duty on 31.03.2011. Therefore, the 5[th] respondent found that appointment of the petitioner can be approved as Part Time Urdu Teacher only with effect from 01.06.2011 onwards. According to the 5[th] respondent, the reason for keeping the proposal for approval of appointment in respect of the petitioner without action, is not due to the ban imposed by the Government, but it was because of the failure of the Manager to accommodate a protected teacher in the School. As regards the claim of the petitioner for Group-C diversion, the 5[th] respondent stated that as per letter No.13652/J2/11/G.Edn. dated 23.03.2011 and Circular No.H2/51483/11/DPI dated 20.09.2011, it has been clarified that teachers, who are enjoying the benefit of Group-C diversion, can be continued as such till their retirement, if the strength of the students allows and after their retirement, the post will automatically become Part Time. As per GO(MS) **WP(C).No.16753 of 2015** **6** 220/10/G.Edn. dated 04.11.2010, the facility of Group-C diversion had been limited up to the academic year 20102011. Therefore, the request of the petitioner to convert the Part Time Urdu Teacher post into a Full Time post cannot be yielded to. 5. I have heard Dr.George Abraham, learned counsel for the petitioner, and Advocate Surin George Ipe, learned Government Pleader. 6. According to the counsel for the petitioner, there is no rhyme or reason for the respondents not to approve his appointment as Urdu Teacher with effect from 22.07.2009. Group-C diversion since permitted up to the academic year 2010-2011, the respondents cannot deny the benefit of conversion of the Part Time post into Full Time, in respect of the petitioner as the petitioner was appointed much earlier than the academic year 2010-2011. As regards the defence of the 5[th] respondent that delay in granting approval to the appointment of the petitioner was due to the non appointment of a protected teacher by the Manager of the **WP(C).No.16753 of 2015** **7** School, the learned counsel for the petitioner brought to the notice of the Court a judgment of this Court in _**Nadeera T.S. and another v. State of Kerala and others** [2011 (3) KLT 790]_ . In the said judgment, this Court held that compelling a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by a staff fixation order, will go against the scheme of the Act and Rules. When the staff fixation order permits appointment of required number of staff, the Manager will have to make appointment in existing vacancies and exercise the power of the Manager. Nothing in the Government Orders prevent approval of appointment of any teacher till a protected hand is appointed by the Manager. This Court held that it is actually the duty of the Manager to fill up all the post in accordance with the orders of the educational authorities fixing the staff strength. 7. The counsel for the petitioner further argued that in the case on hand, the Manager was required to appoint Smt.E.Mallika (protected teacher) only as per order No.B3/21875/10 dated 23.03.2011 and the Manager **WP(C).No.16753 of 2015** **8** appointed the said E.Mallika immediately and she joined duty on 31.03.2011. The Manager acted promptly when required to appoint a protected teacher. Therefore, the approval of the appointment of the petitioner with effect from an anterior date cannot be rejected by the respondents on the ground that a protected teacher was not appointed in the School, contends the counsel for the petitioner. 8. As regards his claim of Group-C diversion, learned counsel for the petitioner argued that the post in which he worked was originally occupied by Mr.Youseph and the said post was made Full Time permitting Group-C diversion before 2009. Once a post is made Full Time, whether based on Group-C diversion or not, the said post should continue to be a Full Time post, irrespective of the fact that the incumbent to the post has retired or died. Even assuming otherwise, when originally the post was a Full Time post on Group-C diversion, when the petitioner was appointed against that vacancy, the petitioner also ought to have been treated as a Full Time Teacher. According to the **WP(C).No.16753 of 2015** **9** petitioner, the requisite Group-C diversion cannot be denied on the ground that the petitioner is a newly recruited teacher. The learned counsel for the petitioner relied on the judgment of the Apex Court in _**State of Kerala and others v. Sneha Cheriyan and another** [2013 (1) KHC 660]_ to urge that there is no difficulty in approving the petitioner's appointment with effect from 22.07.2009 going by the law declared by the Apex Court. 9. The learned Government Pleader, on the other hand, vehemently opposed the writ petition. The learned Government Pleader contended that the School where the petitioner worked being a new School at the time of petitioner's appointment, it was the duty of the manager of the School to appoint protected teachers in his School following the orders issued in that regard. The Manager failed to appoint protected teachers as required by various Government Orders. A protected teacher was appointed only on 31.03.2011. The petitioner's appointment could have been approved only after a protected teacher is appointed. **WP(C).No.16753 of 2015** **10** Therefore, once a protected teacher was appointed, approval was granted to the appointment of the petitioner with effect from 01.06.2011. The petitioner could not have aspired to be an approved teacher when the Manager was flouting the norms thereby avoiding appointment of protected teachers. 10. As regards Group-C diversion, the learned Government Pleader argued that as per Government Order dated 04.11.2010, the facility of Group-C diversion had been limited up to 2010-2011. It was also clarified by subsequent letters and Circulars that teachers, who are enjoying the benefit of Group-C diversion, can be continued as such till their retirement and after their retirement, the post will automatically become Part Time. The approved service of the petitioner commenced only with effect from 01.06.2011 and by the time, the academic year 2010-2011 had come to an end. Therefore, the petitioner could not have been made a Full Time Urdu Teacher by extending the benefit of Group-C diversion, which ceased its operation in the **WP(C).No.16753 of 2015** **11** academic year 2010-2011. The petitioner has no legal grievance or cause of action to claim Full Time appointment from 2009, when the Manager of the School was flouting the norms for appointment of protected teachers. The writ petition is, therefore, devoid of merits and it is only to be dismissed, contended the learned Government Pleader. 11. I have considered the pleadings in the case and the arguments raised by the counsel on either side. The petitioner's request for approval of his appointment as Urdu Teacher with effect from 22.07.2009 and to appoint him as Full Time Urdu Teacher converting the post of Urdu Teacher from Part Time to Full Time has been finally rejected as per Ext.P16. The reason given by the 3[rd] respondent for rejection of the request made by the petitioner is two fold. Firstly, the petitioner could not have been appointed as a Teacher on 22.07.2009 since the 4[th] respondent-Manager of the School did not accommodate any protected teacher in his School in spite of statutory mandate. Secondly, the post cannot be made as a Full Time post by Group-C diversion, **WP(C).No.16753 of 2015** **12** since the facility of Group-C diversion has been limited by the Government up to 2010-2011. 12. As far as approval of appointment of the petitioner as Urdu Teacher from 22.07.2009 is concerned, I find considerable force in the argument of the learned counsel for the petitioner. The petitioner was appointed as Urdu Teacher with effect from 22.07.2009 in a vacancy arose on the demise of the former Urdu Teacher on 17.06.2009. The request for approval of the said appointment has been consistently rejected, for the reason that no protected teacher has been appointed in the School in spite of the statutory requirements. The defence of the respondents does not hold force. This Court, in the judgment in _**Nadeera T.S.** (supra)_ , has held that there is nothing in the Kerala Education Rules, which prevents approval of appointment of a teacher till a protected hand is appointed by the Manager. While appointing a Teacher on the basis of staff fixation order, the Manager of a School exercises his power to make appointment of qualified teacher in terms of staff fixation **WP(C).No.16753 of 2015** **13** order. When a Manager duly appoints a qualified hand against an existent vacancy, the respondents cannot contend that approval to the appointment will be postponed till a protected teacher is appointed. Such a stand will not survive the scrutiny of law, in view of the position laid down by this Court in _**Nadeera T.S.** (supra)_ . Therefore, the respondents are liable to approve the appointment of the petitioner as Urdu Teacher with effect from 22.07.2009. To that extent, orders to the contrary contained in Exts.P7, P10 and P16 are liable to be set aside. 13. As far as conversion of the post of Part Time Urdu Teacher into Full Time is concerned, the materials placed before this Court are not sufficient for grant of that order. Even if it is assumed that the petitioner's appointment on 22.07.2009 was approved without any delay, it is not clear whether he will be eligible for becoming Full Time Teacher on extension of Group-C diversion. The eligibility of the petitioner to avail the benefit of Group-C diversion has not been agreed to by the respondents. The stand of the **WP(C).No.16753 of 2015** **14** respondents that once a teacher holding a Full Time post, after getting benefit of Group-C diversion, retired from service, the post/vacancy will be reverted to that of Part Time nature. Secondly, when late Youseph was made Full Time Urdu Teacher extending to him the benefit of Group-C diversion, the said late Youseph was having more than five years service to his credit. It is not clear from the pleadings whether the benefit of Group-C diversion can be extended to a teacher newly recruited and appointed. Therefore, I am of the opinion that this matter is for respondents 1 to 3 and 5 to consider. In view of the above findings, I dispose of the writ petition setting aside Exts.P10 and P16 and remit the matter back to the 3[rd] respondent. The 3[rd] respondent shall consider the issue in the light of the reasons stated above and grant approval to the appointment of the petitioner as Urdu Teacher from the date of her initial appointment. The 3[rd] respondent shall also consider whether the petitioner was eligible for the benefit of Group-C diversion prior to the **WP(C).No.16753 of 2015** **15** academic year 2010-2011, based on her service from the date of initial appointment and other relevant factors and Government Orders. A decision in this regard shall be taken by the 3[rd] respondent, within a period of three months from the date of receipt of a copy of this judgment and after giving an opportunity of hearing to the petitioner. Sd/- **N. NAGARESH, JUDGE** aks/13.12.2018 **WP(C).No.16753 of 2015** **16** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE MANAGER TO THE PETITIONER, DATED 22.7.2009** **EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2008-09** **EXHIBIT P3 TRUE COPY OF COPY THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2009-10.** - **EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2014-15** - **EXHIBIT P5 TRUE COPY OF THE DECLARATION FILED BY THE MANAGER** - **EXHIBIT P6 TRUE COPY OF APPEAL PREFERRED BY THE MANAGER BEFORE THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD** **EXHIBIT P7 TRUE COPY OF ORDER ISSUED BY THE D.D.E., PALAKKAD DATED 17.3.2011** - **EXHIBIT P8 TRUE COPY OF GOVERNMENT ORDER, G.O(MS) 220/10/G.EDN DATED 4.11.2010** - **EXHIBIT P9 TRUE COPY OF THE REVISION PETITION FILED BY THE MANAGER WITH THE GOVERNMENT ON 31.10.2012** **EXHIBIT P10 TRUE COPY OF GOVERNMENT ORDER DATED 26.5.2014 EXHIBIT P11 TRUE COPY OF REVISION PETITION FILED BY THE PETITIONER WITH THE GOVERNMENT ON 13.9.2014 EXHIBIT P12 TRUE COPY OF THE GOVERNMENT OF THE DIVISION BENCH IN WRIT APPEAL NO.333/2008 EXHIBIT P13 TRUE COPY OF GOVERNMENT ORDER, G.O. (RT) 2020/12/G.EDN DATED 2.5.2012** **WP(C).No.16753 of 2015** **17** |**EXHIBIT P14**|**TRUE COPY OF THE JUDGMENT IN WPC**| |---|---| ||**24489/2014**| |**EXHIBIT P15**|**TRUE COPY OF THE ARGUMENT NOTE**| ||**SUBMITTED ON 22.12.2014**| |**EXHIBIT P16**|**TRUE COPY OF THE GOVERNMENT ORDER**| ||**DATED 30.3.2015**|