Siraj Naha K v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944`** ## **`WP(C) NO. 14214 OF 2021`** ## **`PETITIONER:`** ``` SIRAJ NAHA K AGED 39 YEARS ``` ``` UPPER PRIMARY SCHOOL ASSISTANT, BMOUP SCHOOL,KARAVANTHIRUTHY, KOZHIKODE DISTRICT,PIN-673643. ``` ``` BY ADV POOVAMULLE PARAMBIL ABDULKAREEM ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.` - `2 DIRECTORATE OF GENERAL EDUCATION, JAGATHY,THIRUVANANTHAPURAM-695014.` - `3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,KOZHIKODE673001.` - `4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,KOZHIKODE673004.` - `5 ASSISTANT EDUCATIONAL OFFICER, FEROK,KOZHIKODE-673631.` - `6 MANAGER,BMOUP SCHOOL, KARUVANTHIRUTHI.P.O, KOZHIKODE DISTRICT,PIN-673643.` - `7 HEADMASTER,BMOUP SCHOOL, KARIVANTHIRUTHI.P.O, KOZHIKODE DISTRICT-673643.` ``` BY ADV GOVERNMENT PLEADER ``` ## **`OTHER PRESENT:`** ``` SMT.NISHA BOSE, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 14214 OF 2021 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** ## **------------------------------** ## **W.P.(C)No. 14214 of 2021** ## **---------------------------------------------Dated this the 17[th] day of February, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _i) To issue a writ of certiorari to quash Exhibit P2, P3, P5, P7 & P14 and to the extent the denial of approval of appointment from 02/06/2008 to 31/05/2011 in Ext.P1& P10 orders it is illegal and unjustifiable, Or in the alternative to declare that the said orders cannot be enforced as against the petitioner: ii)To issue a writ of mandamus or any other appropriate writ or order or direction directing the 5th respondent to approve the appointment of the petitioner as UPSA from 02/06/2008 to 31/05/2011 and to disburse all consequential monitory benefits due to him forthwith; iii) To declare that the petitioner is entitled to get approval to his post UPSA in the Leave Without Allowance vacancy in the light of Nadeera Vs. State of Kerala 2011 (3) KLT 790 and Ext.P15; iv) To grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs.(SIC)_ ## 2. The petitioner is working as UPSA in BMOUP School with effect from 02/06/2008 onwards. The petitioner was originally appointed in a leave vacancy for the period from 02.06.2008 to 19.09.2009. Thereafter again the petitioner was appointed in a leave vacancy in another spell. Subsequently he was regularly appointed. Though his appointment was rejected from of date of appointment by the Educational authorities on the ground that Manager has not appointed protected teacher in the school newly ``` WP(C) NO. 14214 OF 2021 ``` 3 opened/upgraded one, his appointment was approved with effect from 01.06.2011 onwards under teacher's package. However, it is submitted that the 6[th] respondent had appointed protected teachers in the school and the said protected teachers were continuing till they were sent back to their parent school by the department and no list of protected teachers were made available to the 6th respondent at the time of appointment of the petitioner. Therefore, the obligation on the part of the 6th respondent to appoint a protected teacher as per rules contemplated in KER has been discharged and the petitioner is entitled to get approval of his appointment from 02.06.2008 to 31.05.2011 is the contention. It is the case of the petitioner that, he approached this court earlier and as per Ext.P13 judgment, this court directed the 1[st] respondent to consider the grievance of the petitioner. But as per P14 the same is rejected. Aggrieved by Ext.P14, this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. ``` WP(C) NO. 14214 OF 2021 ``` 4 ## 4. This court already considered the case of the petitioner in detail in Ext.13 judgment. It will be better to extract the relevant portion of P13 judgment. “5. Having considered the contentions advanced, I find that the specific ground raised by the petitioner that the petitioner was entitled to approval of appointment with effect from 02.06.2008 to 31.05.2011 as U.P.S.A in an available vacancy has not been considered in Ext.P10. The Government has only considered the eligibility of petitioner for approval under the Teachers Bank and with regard to the eligibility of the petitioner to be retained against a regular vacancy which arose during his appointment in the leave vacancy. The specific contention raised by the petitioner that protected teachers were appointed in the School at the time when his appointment in the leave vacancy had been effected and that the Manager is not duty bound to make appointments of protected teachers as no list was made available by the Deputy Director of Education has not been considered in Ext.P11.” 5. Thereafter Ext. P14 order is passed by the Government without considering the contentions directed to be considered by this Court in Ext.P13. This stand cannot be accepted in the light of Ext.P13 judgment. I am of the considered opinion that Ext.P14 is passed not in tune with the direction in Ext.P13 judgment. Moreover, in the writ petition, a specific stand is taken by the petitioner that there was no list of protected teachers made available to the 6[th] respondent at the time of appointment of the petitioner. If that is the case, the principle laid down by this ``` WP(C) NO. 14214 OF 2021 ``` 5 court in **Nadeera Vs. State of Kerala 2011 (3) KLT** **790** is squarely applicable. It will be beneficial to extract the relevant portion of the judgment in Nadira’s case ## . _[supra]_ “ 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 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.” 6. According to me, in the light of the principle laid down by this court in Nadira’s case [supra] and also in the light of the directions in Ext.P13 judgment, the findings in Ext.P14 will not stand. There is no case to official respondent that, the list of protected teachers was supplied to the 6[th] respondent manager. In such case, the manager need not postpone the appointment, till the protected teachers are available. Therefore Ext.P14 can be set aside. The 5[th] respondent can approve the ``` WP(C) NO. 14214 OF 2021 ``` 6 appointment of the petitioner as U.P.S.A for the period from 02.06.2008 to 31.05.2011 if it is otherwise in order. Therefore this writ petition is allowed in the following manner: - i. Ext. P14 is set aside. - ii. The 6[th] respondent is directed to submit a proposal for approval of appointment of the petitioner for the period from 02.06.2008 to 31.05.2011 within three weeks from the date of receipt of a copy of this judgment. iii. Once such a proposal is received, the 5[th] respondent will consider the same and approve the appointment of the petitioner if it is otherwise in order, as expeditiously as possible, at any rate, within a period of two months from the receipt of the order. ``` WP(C) NO. 14214 OF 2021 ``` 7 iv. Based on the decision taken, the 5[th] respondent will disburse the consequential benefit to the petitioner as expeditiously as possible, at any rate, within a period of two months from the date of the approval of the order. v. Petitioner will produce a copy of the writ petition along with a certified copy of this judgment before the 5[th] and 6[th] respondent for compliance. Sd/ **P.V.KUNHIKRISHNAN JUDGE** SM ``` WP(C) NO. 14214 OF 2021 ``` 8 ## **`APPENDIX OF WP(C) 14214/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 02/06/2008` - `ISSUED BY THE 6TH RESPONDENT.` - `Exhibit P2 TRUE COPY OF THE ORDER NO.K.DIS.D/2261/08 DATED 6/11/2008 ISSUED BY THE 5TH RESPONDENT` - `Exhibit P3 TRUE COPY OF THE ORDER NO.B2/8271/09/K.DIS DATED 31/10.2009 ISSUED BY THE 4TH RESPONDENT` - `Exhibit P4 TRUE COPY OF THE PROCEEDINGS DATED 20/09/2009 ISSUED BY THE 6TH RESPONDENT` - `Exhibit P5 TRUE COPY OF THE ORDER NO.G3/17009/10/DPI/K.DIS DATED 9/3/2010 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P6 TRUE COPY OF THE REVISION PETITION DATED 23/03/2010 SUBMITTED BY THE 6TH RESPONDENT` - `Exhibit P7 TRUE COPY OF THE ORDER NO.31168/L1/10/G.EDN.DATED 8/8/2010 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P8 TRUE COPY OF THE ORDER NOK.DIS.595/2012/D DATED 16/08/2012 ISSUED BY THE 5TH RESPONDENT` - `Exhibit P9 TRUE COPY OF THE APPOINTMENT ORDER DATED 06/06/2013 WITH APPROVAL ISSUED BY THE 5TH RESPONDENT` - `Exhibit P10 TRUE COPY OF THE G.O.(RT)NO.3882/2019/G.EDN.DATED 28/09/2019 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P11 TRUE COPY OF THE PROCEEDINGS NO.B4/17200/19 DATED 20/07/2019 ISSUED BY THE 3RD RESPONDENT` - `Exhibit P12 TRUE COPY OF THE REPRESENTATION DATED 9/11/2019 SUBMITTED BY THE PETITIONER` - `Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 21/12/2021 IN W.P(C)NO.30946/2019 ISSUED BY THE HON'BLE COURT` - `Exhibit P14 TRUE COPY OF THE G.O.(RT)NO.2590/2021/G.EDN.DATED 18/04/2021 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 18/08/2014 IN WP(C)NO.30130/2013 PASSED BY THIS HON'BLE COURT.` ``` RESPONDENTS EXHIBITS : NIL ``` ``` //TRUE COPY// PA TO JUDGE ```