Sherly Abraham v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936 WP(C).No. 95 of 2014 (J) ------------------------- PETITIONER - ------------- SHERLY ABRAHAM, HIGH SCHOOL ASISSTANT(PHYSICAL SCIENCE), ST.MARY'S HIGH SCHOOL, KADUMENI P.O, KADUMENI, KASARAGOD DISTRICT 670 511 BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM RESPONDENTS: ----------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,GOVEERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM 695 014 3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD 671 121 4. THE DISTRICT EDUCATION OFFICER,KANHANGAD, KASARAGOD DISTRICT - 671 315 5. THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE THALASSERY, KANNUR DISTRICT 670 101 R5 BY ADV. SRI.BENNY GERVACIS R1-R4 BY ADV. SRI. M.A. FAYAZ, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 95 of 2014 (J) ------------------------- ## **APPENDIX** PETITIONER'S' EXHIBITS : ----------------------------- EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/6/2010. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 8/10/2010 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 2/11/2009. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 15/11/2008 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 18/9/2010. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 25/9/2010 FORWARDED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPYU OF THE PROCEEDINGS DATED 20/11/2010 OF THE 5TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS DATED 14/7/2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 3/3/2012 PASSED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL ----------------------------- /True Copy/ P.A. to Judge. rv ## **P. N. RAVINDRAN, J.** ## **----------------------------------** ## **W.P.(C.) No. 95 of 2014** ---------------------------------Dated this the 20[rd] day of June, 2014 ## **JUDGMENT** The petitioner was appointed as HSA (Physical Science) in St. John's High School, Palavayal, an educational institution established and administered by the Corporate Educational Agency, Archdiocese of Thalassery. The said appointment in a leave vacancy for the period from 02.06.2008 to 09.10.2010 was approved. While the petitioner was thus working in the leave vacancy, by Ext.P1 appointment order dated 01.06.2010, the fifth respondent Corporate Manager appointed the petitioner as HSA (Physical Science) in St. Mary's High School, Kadumeni in the vacancy of Smt. Kochuthresia who retired from service on 31.03.2010. By Ext.P2 order passed on 08.10.2010, the District Educational Officer, Kanhangad declined to approve the petitioner's appointment as HSA (Physical Science) with effect from 01.06.2010 for the reason that St. Mary's High School, Kadumeni, where the petitioner was appointed as HSA (Physical Science), is a newly opened school, that the Manager was bound to appoint a protected teacher and as a protected teacher was W.P.(C) No.95/2014 -2- not appointed, the appointment of the petitioner cannot be approved. Aggrieved by Ext.P2, the Corporate Manager filed an appeal before the Deputy Director of Education, Kasargod. The said appeal was dismissed. The Manager thereupon moved a revision petition before the Director of Public Instruction. 2. The Corporate Manager had even before the petitioner was appointed as HSA (Maths), appointed Sri. N. Prasad, a protected teacher of MRVHSS, Padne as HSA (Maths) in St. Mary's High School, Kadumeni. Sri. N. Prasad was deployed to St. Mary's High School, Kadumeni as per order dated 24.09.2008 issued by the Deputy Director of Education, Kasaragod. While he was thus working as a protected teacher in St. Mary's High School, Kadumeni, a vacancy of HSA (English) arose in his parent school consequent on the promotion of Sri. T.V. Narayanan, HSA (English) as Headmaster with effect from 01.04.2009. The Manager of MRVHSS, Padne thereupon sent a letter dated 15.07.2009 to the Deputy Director of Education, Kasaragod requesting him to redeploy Sri. N. Prasad to his parent school. The District Educational Officer, Kanhangad, after enquiry reported to the W.P.(C) No.95/2014 -3- Deputy Director of Education that Sri. N. Prasad is the senior most protected teacher of MRVHSS, Padne and therefore, he may be repatriated to his parent school and accommodated in the vacancy of HSA (English) available in the parent school. The Deputy Director of Education thereupon issued Ext.P3 proceedings dated 02.11.2009 cancelling the deployment of Sri. N. Prasad, HSA (Maths) to St. Mary's High School, Kadumeni and repatriated him to his parent school. The Headmaster of St. Mary's High School, Kadumeni was directed to relieve the teacher without instructions from the management. It was thereafter that the petitioner was appointed as HSA (Physical Science) by Ext.P1 appointment order. It was notwithstanding this fact that the District Educational Officer, Kanhangad declined to approve the petitioner's appointment by Ext.P2 order dated 12.10.2010. 3. The revision petition filed by the Corporate Manager challenging Ext.P2 order passed by the District Educational Officer declining to approve the petitioner's appointment and the order passed by the Deputy Director of Education dismissing the appeal from Ext.P2 was heard and allowed by the Director of Public W.P.(C) No.95/2014 -4- Instruction, Thiruvananthapuram by Ext.P8 order passed on 14.07.2011. The Manager had in the meanwhile appointed Sri. K. Muraleedharan, a protected drawing teacher and he joined duty in the school on 01.02.2011. It was taking note of this fact that the Director of Public Instruction allowed the revision petition filed by the Corporate Manager and directed the District Educational Officer to approve the petitioner's appointment as HSA (Physical Science) with effect from 01.02.2011, if it is otherwise in order. Consequently, by order passed on 29.08.2011, the District Educational Officer, Kanhangad approved the petitioner's appointment as per Ext.P1 order dated 01.06.2010 with effect from 01.02.2011. In this writ petition, the petitioner seeks a writ in the nature of mandamus commanding the fourth respondent to approve her appointment with effect from 01.06.2010. Relying on a decision of the learned single Judge of this Court in **Nadeera v. State of Kerala** [2011(3) KLT 790], the petitioner contends that she was appointed as HSA (Physical Science) only after a protected teacher had been appointed in the school and he was repatriated to the parent school by Ext.P3 order dated 02.11.2009 and therefore, W.P.(C) No.95/2014 -5- the stand taken in Ext.P2 order cannot be sustained. Referring to Ext.P5 letter dated 18.09.2010 sent by the Deputy Director of Education, Kasargod to the Corporate Manager, it is contended that before the petitioner was appointed, the Corporate Manager had taken steps to appoint a protected teacher as a drawing teacher, but he was informed that there is no protected drawing teacher available in the District and therefore he may contact Deputy Directors of Education in other districts, that thereupon Sri. K. Muraleedharan, a protected drawing teacher from Thalassery Education District was appointed in St. Mary's High School, Kadumeni and he joined duty on 01.02.2011 and therefore, no exception can be taken to the petitioner's appointment as HSA (Physical Science) on 01.06.2010. 4. I heard Sri. P.P. Abdul Kareem, learned counsel appearing for the petitioner, Sri. M.A. Fayaz, learned senior Government Pleader appearing for respondents 1 to 4 and Sri. Benny Gervasis, learned counsel appearing for the fifth respondent. The pleadings and the materials on record disclose that before the petitioner was appointed as HSA (Physical Science) in St. Mary's High School, W.P.(C) No.95/2014 -6- Kadumeni by Ext.P1 appointment order dated 01.06.2010, the Corporate Manager had by order passed on 08.12.2009 appointed Smt. Sreekala C.V., a protected teacher of MKS High School, Kuttamath as HSA (Maths) in St. Mary's High School, Kadumeni. By order passed on 10.03.2010, the Deputy Director of Education declined to approve the said appointment on the ground that the appointment of a protected teacher in a leave vacancy is not contemplated in the Government orders governing the field. The Corporate Manager thereafter appointed the petitioner in W.P.(C) No. 28695 of 2013 as HSA (Maths) with effect from 01.06.2010. The said appointment was also rejected for the reasons set out in Ext.P2. I have by judgment delivered today allowed W.P.(C) No. 28695 of 2013 and directed that the appointment of the petitioner therein as HSA (Maths) be approved with effect from 01.06.2010. 5. In the light of the facts stated above, I am of the considered opinion that the stand taken by the District Educational Officer, Kanhangad in Ext.P2, by the Deputy Director of Education, Kasaragod when he rejected the appeal therefrom and by the Director of Public Instruction in Ext.P8 cannot be sustained. That W.P.(C) No.95/2014 -7- apart, Ext.P3 discloses that before Smt. C.V. Sreekala, a protected teacher was appointed as HSA (Maths) in St. Mary's High School, Kadumeni by order passed on 08.12.2009, the Manager had accommodated a protected drawing teacher in the school and he was repatriated to his parent school only in November, 2009. Still later, the Manager had appointed yet another protected teacher from another Educational District on 01.02.2011. The Director of Public Instruction lost sight of the aforesaid facts and declined to approve the petitioner's appointment with effect from 01.06.2010. However, in view of the fact that a protected teacher was appointed on 01.02.2011, he directed the District Educational Officer to approve the petitioner's appointment with effect from that date. Having regard to the totality of the facts stated above, I am of the considered opinion that the petitioner is entitled to have her appointment as HSA (Physical Science) approved with effect from 01.06.2010. In view of the reasons stated by me in the judgment allowing W.P.(C) No. 28695 of 2013, approval of the petitioner's appointment with effect from 01.06.2010 cannot be declined. I accordingly hold that the petitioner is entitled to W.P.(C) No.95/2014 -8- succeed. For the reasons stated above, I declare that the petitioner is entitled to have her appointment as HSA (Physical Science) in St. Mary's High School, Kadumeni approved on a regular basis with effect from 01.06.2010. The District Educational Officer, Kanhangad shall issue revised orders approving the petitioner's appointment as HSA (Physical Science) by Ext.P1 appointment order dated 01.06.2010 with effect from 01.06.2010 on a regular basis, expeditiously and in any event within an outer limit of one month from the date on which the petitioner produces a certified copy of this judgment before him. The fifth respondent and the District Educational Officer shall thereupon take steps to draw and disburse arrears of salary and allowances to the petitioner. This shall be done without fail, within a further period of three months. No costs. ## **P. N. RAVINDRAN, JUDGE.** rv