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High Court of KeralaDivision BenchWrit petition allowed; Exts. P7 and P8 set asid...

Sushama P. v. District Educational Officer, Kanhangad; Assistant Educational Officer, Cheruvathoor; Manager, Rajah's A.U.P. School; Jisha P.V.; State of Kerala

Case / Petition Number:W.P.(C) No. 607/2008 (V)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A.M. Shaffique
  • Thomas P. Joseph
Judgment Date
2012-01-06
Court Decision / Holding
Writ petition allowed. Exts. P7 and P8 insofar as they relate to the petitioner are set aside. Respondents 1 and 2 are directed to approve the petitioner’s appointment as L.P.S.A within two months from the date of receipt of a copy of this judgment.
Final Disposition
Writ petition allowed; Exts. P7 and P8 set aside for petitioner; directions to approve within two months.

Parties to the Case

Appellants / Petitioners

  • Sushama P.

Respondents

  • District Educational Officer, Kanhangad
  • Assistant Educational Officer, Cheruvathoor, Kasargod
  • Manager, Rajah's A.U.P. School, Achamthuruthi, R.H.S. Nileshwar and R.A.L.P.School Nileshwar, Kasaragod
  • Jisha P.V., UPSA, Rajah's AUP School, Achamthuruthi, Cheruvathoor, presently working at Rajah's High School, Nileshwar
  • State of Kerala represented by Secretary to Government, Department of General Education, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

  • • M. Sasindran

Counsels for Respondents

  • • Government Pleader Sri. V. Vijulal (R1, R2, R5)
  • • Sri. T.K. Vipindas (R4)
  • • Sri. Kaleeswaram Raj (R3)

Case Synopsis & Summary

This writ petition challenges the non-approval of the petitioner’s appointment as L.P.S.A in Rajah’s A.U.P. School and the denial of inclusion under Exts. P7 and P8 by the District Educational Officer and the Assistant Educational Officer. The petitioner relies on Government Order G.O.(P) 73/2006 G.Edn (Ext. P4), which states that the stipulation regarding appointment of protected hands will not be insisted upon in the pre-upgraded sections of the ‘New School,’ arguing that this precludes a bar on approval where a protected hand is to be appointed. Ext. P11 shows the school’s long-standing status, operating as L.P.S since 1923 and upgraded to U.P.S. in 1979-80. Respondents contend that approval is conditional on vacancy, sanctioned posts, and eligibility, with Exts. P7 and P8 reflecting compliance with the relevant provisions (Kerala Education Rules). The court notes the absence of an enabling provision to postpone approval until a protected hand is appointed, and cites T.S. Nadeera v. State of Kerala to underscore the evolving interpretation prior to the 2009 order. Ultimately, the court holds that the petitioner’s appointment should not be barred by the protected-hand requirement, sets aside Exts. P7 and P8 insofar as they affect the petitioner, and directs the DEO and AEO to approve the appointment within two months.

Provisions of Law Cited

Rule 7 of Chapter XIV-A, Kerala Education Rules (KER)Rule 6(viii) of Chapter V, Kerala Education Rules (KER)G.O.(P) 73/2006 G. Edn, dated 18.02.2006

Legal Doctrines & Maxims

  • As soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order (Form 27) and the appointment shall be effective from the date of admission to duty, provided the appointment is duly approved (KER Rule framing).
  • There cannot be a refusal to grant approval normally, once the essential conditions (vacancy, sanction of post, eligibility) are satisfied.
  • There is no enabling provision allowing postponement of approval until a protected hand is appointed (the Government Order dated 19/11/2009 is prospective).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exts. P7 and P8 denying approval of her appointment as L.P.S.A are legally unsustainable. Ext. P4 (G.O. 73/2006) states that the stipulation regarding protected hands would not be insisted upon in pre-upgraded sections of the New School, implying no bar to approval absent a protected hand. Ext. P11 shows the school’s long-standing existence since 1923. It is argued that there was no prohibition on grant of approval before a protected hand was appointed; the Manager’s post-appointment actions and the pre-2009 practice under Rule 7 of Chapter XIV-A and Rule 6(viii) of Chapter V of the KER permit approval if vacancy and qualifications are satisfied. The reliance on the decision in TS Nadeera v. State of Kerala is cited to support the interpretation that approvals could be granted despite absence of a protected hand, and that Exts. P7/P8 misapplied the law.

Contentions of Respondents

Respondents argue that Exts. P7 and P8 reflect the statutory framework under the Kerala Education Rules, including the requirement of vacancy, sanctioned post, and eligibility, and that approval cannot be granted without proper compliance, including consideration of protected hands. They rely on G.O.(P) 73/2006 to justify awaiting the protected-hand list and view Exts. P7 and P8 as consistent with the rules; a Government decision (2009) is cited as prospective, and there is a contention that the matter should be referred to the Government for final decision due to irregular appointments.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
T.S. Nadeera v. State of Kerala2011 (3) KLT 790Mentioned OnlyCited by the petitioner's counsel and discussed in extracts (paragraphs 17 and 19) to illustrate pre-2009 practice regarding approval of appointments; not treated as binding precedent by the court in its reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933** ## **WPC.No. 607 of 2008 (V)** **---------------------------------** ## **PETITIONER(S):** - **---------------------** **SUSHAMA P., LPSA, RAJAH'S AUP SCHOOL, ACHAMTHURUTHI PRESENTLY WORKING AT, RAJAH'S HIGH SCHOOL NILESHWAR, KASARAGOD DISTRICT.** ## **BY ADV. SRI.M.SASINDRAN** - **RESPONDENT(S): -------------------------** **1. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD.** **2. THE ASSISTANT EDUCATIONAL OFFICER, CHERUVATHOOR, KASARGOD.** **3. THE MANAGER, RAJAH'S A.U.P.SCHOOL, ACHAMTHURUTHI, R.H.S.NILESHWAR AND R.A.L.P.SCHOOL NILESHWAR, KASARGOD.** **4. JISHA P.V., UPSA, RAJAH'S AUP SCHOOL, ACHAMTHURUTHI, CHERUVATHOOR PRESENTLY WORKING AT, RAJAH'S HIGH SCHOOL, NILESWAR KASARAGOD DISTRICT.** **5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM.** - **R1,2 & R5 BY GOVT. PLEADER SRI.V.VIJULAL R4 BY ADV. SRI.T.K.VIPINDAS R3 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.607/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE APPOINTMENT ORDER DT. 26.6.06 ISSUED BY THE MANAGER.** ## **P2:- COPY OF THE PROCEEDINGS DTD. 26.6.2006.** **P3:- COPY OF THE PROCEEDINGS DTD. 10.4.2007 ISSUED BY THE 2ND RESPONDENT REJECTING THE APPOINTMENT OF THE PETITIONER** ## **P4:- COPY OF THE G.O.(P) 73/2006 G.EDN. DTD. 18.2.2006.** ## **P5:- COPY OF THE HEARING NOTICE DT. 24.8.2007 ISSUED BY THE IST RESPONDENT.** **P6:- COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT AT THE TIME OF HEARING ON 2.9.2007.** **P7:- COPY OF THE ORDER NO.C6/1853/07/K.DIS DT. 17.12.2007 ISSUED BY THE IST RESPONDENT.** **P8:- COPY OF THE ORDER NO.C6/1854/07/K.DIS DT.D 17.12.2007 ISSUED BY THE IST RESPONDENT.** **P9:- COPY OF THE ORDER DTD. 24.10.2008 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION.** **P10:- COPY OF THE ORDER DTD. 3.2.2009 ISSUED BY THE DPI.** **P11:- COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER WHICH WOULD SHOW THAT THE L.P. SECTION WAS IN EXISTENCE FROM THE YEAR 1923.** **P12:- COPY OF THE APPEAL FILED BY THE 4TH RESPONDENT BEFORE THE DEPUTY DIRECTOR DT.D 23.2.2008.** ## **P13:- COPY OF THE ORDER DTD 22.2.2010 ISSUED BY THE GOVERNMENT.** ## **RESPONDENT'S EXHIBITS** **R4(a):- COPY OF THE APPOINTMENT ORDER OF THE 4TH RESPONDENT DT.D 3.6.06.** **R4(b):- COPY OF THE APPOINTMENT ORDER OF THE 3RD RESPONDENT DT.D 5.6.2007.** ## **TRUE COPY** ## **P.A. TO JUDGE** ## **tss** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.607 of 2008 - V ---------------------------------------- Dated this the 6[th] day of January 2012 ## **J U D G M E N T** The petitioner was appointed as L.P.S.A by virtue of Ext.P1. Her appointment was not approved by the A.E.O against which appeal was filed. The appellate authority namely the D.E.O issued Exts.P7 and P8 inter alia stating that since the school had not appointed a protected teacher in the vacancy, the approval cannot be made. This was confirmed in other proceedings also. The petitioner challenges Exts.P7 and P8 and seeks a direction to respondents 1 and 2 to approve the appointment of the petitioner as L.P.S.A as per Ext.P1. The petitioner relies upon Ext.P4 Government Order in which it is inter alia stated as follows: “The matter has been examined in detail. Government, are pleased to order that the stipulation regarding appointment of protected hands in the Govt.Order read above will not be insisted on in the pre-upgraded sections of the ' **New School** '. W.P.C.No.607/08 2 2. It apparently means that in regard to approval of L.P.S.A, there is no necessity to appoint a protected teacher in a vacancy. This is further fortified by Ext.P11 certificate stating that the school operated as L.P.S in the year 1923 and was upgraded as U.P.S in the year 1979-80 as per the school records. That being the position, the authorities committed serious error of law in not approving the appointment of the petitioner. On the other hand, the Manager of the School contends that even the protected teacher had been appointed subsequently and that no appointments were made since the list of protected teachers were not available at the time of appointment. At any rate, the list was furnished only on 01/11/2006 and thereafter the protected teacher was also appointed. The learned counsel also relied upon the judgment in **T.S.Nadeera v. State of Kerala [2011 (3) KLT 790]** and specifically referred to paragraph 17 and 19 of the judgment which is extracted hereunder: “17. This also confirms the view that at least till the said Government Order was issued on 19/11/2009, there was no restriction to grant approval on the plea that such approval will be granted only from the date of appointment of a protected hand. In fact, going by Rule 7 of W.P.C.No.607/08 3 Chapter XIV-A of KER, “as soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.” As far as grant approval is concerned, normally, it should conform to the existence of vacancy and the sanction of post as per the staff fixation order and the eligibility of the teacher for appointment by fulfilling the qualification. Once these conditions are satisfied, unless there is any other legal bar for granting approval, there cannot be a refusal to grant approval normally. 19. Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of Rule 6 (viii) of Chapter V of KER. There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19/11/2009 was issued which can only be prospective. Evidently there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be W.P.C.No.607/08 4 ## postponed.” 3. In fact, the Manager has a contention that even the appointment of the 4[th] respondent requires to be approved in view of the fact that the protected teacher had already been appointed. However, the learned Government Pleader appearing for respondents 1, 2 and 5 supports Exts.P7 and P8 orders and also requests for consideration of the matter by the Government as the appointments are irregularly made. 4. I do not think so. As far as the petitioner is concerned, the question of appointing protected teacher cannot be a criteria to decide against her appointment in view of what is stated above. Under these circumstances, the above writ petition stands allowed with the following directions: i) Exts.P7 and P8 insofar as it relates to the petitioner is set aside. ii) That respondents 1 and 2 are directed to approve the appointment of the petitioner as L.P.S.A within a period of two months from the date of receipt of a copy of this judgment. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.607/08 5 W.P.C.No.607/08 6 W.P.C.No.607/08 7 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011