Suresh Kumar.C v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **FRIDAY, THE 19TH DAY OF SEPTEMBER 2014/28TH BHADRA, 1936** ## **WP(C).No. 28032 of 2009 (Y)** ## **--------------------------------------** **PETITIONER:** **-------------------** **SURESH KUMAR.C, PARAKKAL HOUSE, HSA (SANSKRIT) PAVANDOOR HSS, PAVANDOOR, POONATH P.O. NADUVANNUR (VIA), KOZHIKODE DISTRICT-673 614.** ## **BY ADV. SRI.M.VIJAYAKUMAR** ## **RESPONDENTS:** **-------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM.** **2. DISTRICT EDUCATIONAL OFFICER, VATAKARA.** **3. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.** **4. DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **5. MANAGER, PAVANDOOR HIGHER SECONDARY SCHOOL, KOZHIKODE DISTRICT. ADDL.R6 IMPLEADED** **6. DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT. (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 01.03.2011 IN IA.3205/2011)** **R1 TO R4 & R6 BY GOVT. PLEADER SRI.P.V.ELIAS. R5 BY ADV. SRI.V.TEKCHAND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** ## **WP(C)NO.28032/2009** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1:TRUE COPY OF THE ORDER OF THE D.E.O DATED 12.202001.** **EXT.P2:TRUE COPY OF THE APPEAL OF THE MANAGER DATED 20.3.2001 BEFORE THE DDE.** **EXT.P3:PHOTOSTAT COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 24.8.2011.** **EXT.P4:THE TRUE COPY OF THE ORDER OF THE DPI DATED 10.7.2002.** **EXT.P5:TRUE COPY OF G.O(RT)NO.3183/2007/D.EDN.DATED 1.7.2007.** **EXT.P6:TRUE COPY OF THE PETITION SUBMITTED BY THE MANAGER BEFORE THE DPI.** **EXT.P7:TRUE COPY OF THE COMMUNICATION OF THE D.P.I.** **EXT.P8:TRUE COPY OF THE REVISION BEFORE THE GOVT.DATED 7.12.2007.** **EXT.P9:TRUE COPY OF THE COMMUNICATION DATED 23.12.2008.** **EXT.P10:TRUE COPY OF THE COMMUNICATION OF THE DPI DATED 3.1.98.** **EXT.P11:TRUE COPY OF THE COMMUNICATION OF THE GOVT.TO THE DPI.** **EXT.P12:TRUE COPY OF THE COMMUNICATION DATED 25.9.1998.** **EXT.P13:TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.1762/2009 DATED 16.1.2009.** **EXT.P14:TRUE COPY OF THE ORDER NO.G.O.(RT)NO.3711/09/G.EDN. DATED 28.8.2009.** **RESPONDENTS EXHIBITS:** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **pk** ## **C. K. ABDUL REHIM, J -------------------------------------** W.P.(C). No.28032 Of 2009 ----------------------------------------Dated this the 19[th] day of September, 2014 ## JUDGMENT The petitioner was appointed as H.S.A. (Sanskrit) in the 5[th] respondent's School with effect from 9.10.2000 in a vacancy which arose consequent to promotion of one Smt. Valsala E. as Higher Secondary School teacher. Approval of appointment of the petitioner was rejected by the 2[nd] respondent through Ext.P1 order stating the reason that the 5[th] respondent's school is a newly opened school and the vacancy which arose in the category of language and special teachers ought to have been filled up with protected teachers, as per G.O.(MS) 123/91/G.Edn, dated 5.8.1991 (herein after referred as G.O. No.123/91). Further reason mentioned in Ext.P1 is that, the vacancy against which the appointment is made has not been established. Appeal filed by the 5[th] respondent against Ext.P1 was rejected through Ext.P3 stating the very same reasons as mentioned in Ext.P1. Contention raised that a protected teacher was already W.P.(C). No.28032 OF 2009 2 appointed in the said school was repelled, stating that the protected teacher appointed in the school was returned to the parent school, consequent to vacancy arose thereon. Ext.P3 order was subjected to revision before the 4[th] respondent. But the revision petition was dismissed through Ext.P4 order stating that the promotion and posting of Smt.Valasala E. as H.S.S.T. has not been approved so far, and hence there is no vacancy established to accomodate the petitioner. 2. The petitioner had produced Ext.P5 Government Order, which will reveal that the dispute with respect to promotion of Smt. Valsala E. was settled subsequently. It is stated that consequent to Ext.P5 the 3[rd] respondent had issued a proceedings approving the appointment of Smt. Valasala E. as H.S.S.T. On that basis the petitioner again approached the 4[th] respondent in Ext.P6 application seeking direction for approval of her appointment. But Ext.P6 application was returned by the 4[th] respondent in Ext.P7 letter stating the reason that he cannot review Ext.P4 order. Therefore, aggrieved by Exts.P4 and P7 the petitioner had preferred Ext.P8 revision petition before W.P.(C). No.28032 OF 2009 3 the 1[st] respondent. Since Ext.P8 was not considered, the petitioner approached this Court in a writ petition. This court directed the 1[st] respondent to consider Ext.P8 and dispose of the same, within a time limit stipulated. Ext.P14 is the consequential order passed by the 1[st] respondent. Disposing Ext.P8 revision petition, it is observed that as per G.O.No.123/1991 the post ought to have been filled up with a protected teacher. The Government noticed that, as per the report of the 3[rd] respondent there were protected teachers available in the subject of Sanskrit in Kozhikode District at the time when the petitioner was appointed. It is challenging Ext.P14, this writ petition is filed. 3. Specific contention of the petitioner is that, there was no protected teachers available in Kozhikode District and under such circumstances the 5[th] respondent Manager was entitled to appoint the petitioner. The petitioner relies on Exts.P10 and P11 documents in support of the above contentions. Further it is contended that no list of protected teachers was given to the 5[th] respondent Manager by the Educational Authority. Hence W.P.(C). No.28032 OF 2009 4 the Manager was not bound to appoint any protected teacher, because appointment of the petitioner was against a sanctioned post as per the staff fixation. The Manager was entitled to appoint the petitioner in accordance with provisions contained in the Kerala Education Rules (K.E.R.), is the contention. 4. Learned counsel appearing for the petitioner had drawn attention to the decision of this Court in _**Nadeera v State of Kerala [2011 (3) KLT 790].**_ It is held therein that the staff fixation order permits appointment of required number of teachers. The Manager will have to make appointment in the existing vacancies, and such appointments cannot be said to be against the scheme of the Act. It is pointed out that the obligation on the Manager to appoint a protected teacher arising out of Rule 6 (viii) of Chapter V KER can be insisted, only if a list of protected teachers was forwarded under the relevant Government Order, in order to fill up the vacancies. The above position has been reiterated in another Devision Bench decision in _**State of Keala and**_ ## _**Others v S. Haseena and Another [2013 (2) KHC**_ W.P.(C). No.28032 OF 2009 5 _**103 (DB)].**_ It is held that the Educational Department has to send a list of protected teaches to the concerned school, on time in order to ensure that the manager complies with the undertaking envisaged under Rule 6 (viii). If there is violation with respect to the guidelines in that respect, the management could not be find fault with. It is held that there is no obligation on the part of the managements to secure the list of protected teachers. It is the obligation of the authorities that the guidelines are followed strictly and necessary list of protected teachers are made available by sending them to the schools concerned. If there was failure on the part of the Educational Authority in full-filling such obligation, the regularly appointed teachers shall not be put to disadvantage. They cannot be saddled with any disadvantages, even vicariously, on account of no fault of the managers in such circumstances. 5. Based on the legal principles remaining settled as above, it is contended that there was no fault on the part of the 5[th] respondent Manager, in not appointing any protected teacher to the vacancy in question. It is W.P.(C). No.28032 OF 2009 6 contented that the Manager had full-filled his obligation under G.O. No.123/1991 which was modified through subsequent Government Orders, because one protected teacher was already appointed in the said school and because of the fact that there was no protected teachers available in the subject concerned within the district and that the Educational Authority had not furnished any list of protected teachers to the Manager, at the time when the vacancy arose. 6. It is noticed that in Ext.P14 decision the 1[st] respondent has not considered any of the above said aspects. On the other hand, it only reiterated the reasonings mentioned by the authorities below, to the extent that the Manager ought to have appointed a protected teacher against the vacancy in question. Therefore this Court is of the considered opinion that the matter requires reconsideration at the hands of the 1[st] respondent, in view of the legal position remaining settled through decisions cited above. 7. Under the above mentioned circumstances, this writ petition is allowed and Ext.P14 is hereby quashed. W.P.(C). No.28032 OF 2009 7 The 1[st] respondent is directed to reconsider Ext.P8 revision petition and to dispose it afresh, as directed in Ext.P13 judgment, taking note of the rulings cited above, after affording a further opportunity of personal hearing to the petitioner and the 5[th] respondent. A fresh decision in this regard shall be taken by the 1[st] respondent at the earliest, at any rate within a period of three months from the date of receipt of a copy of this judgment. Sd/- **C. K. ABDUL REHIM, JUDGE.** /True Copy/ P.A. To Judge SKV