The Manager, St. Mary's College Higher Secondary School, Sulthan Bathery, Wayanad District v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 8467 of 2011(G) ------------------------------- PETITIONER: -------------- THE MANAGER, ST.MARY'S COLLEGE HIGHER SECONDARY SCHOOL, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM, SR.ADVOCATE SRI.TONY GEORGE KANNANTHANAM SRI.JIJI THOMAS SRI.MATHEW K. SIMON RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-01. 2. DISTRICT EDUCATIONAL OFFICER, WAYANAD-673121. 3. DEPUTY DIRECTOR OF EDUCATION, WAYANAD-673123. 4. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-01. 5. SMT.LEEJO JOSEPH RAJ, - H.S.A.(PHYSICAL SCIENCE), - ST.MARY'S COLLEGE HIGHER SECONDARY SCHOOL, SULTHAN BATHERY, WAYANAD-673121. BY SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1-R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.8467/2011 A P P E N D I X PETITIONER'S EXHIBITS: - EXT. P1 : COPY OF ORDER No.B5/5809/07 DTD. 13.8.07. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 1.6.09 OF R5. - EXT. P3 : COPY OF LETTER DTD. 11.6.09 SENT BY PETITIONER TO District Educational Officer. - EXT. P4 : COPY OF ORDER DTD. 24.10.09 OF District Educational Officer REJECTING APPROVAL OF APPOINTMENT OF R5. - EXT. P5 : COPY OF G.O.(MS) 19/09 DTD. 9.2.09. - EXT. P6 : COPY OF APPEAL DTD. 24.11.09 FILED BY PETITIONER BEFORE Deputy Director of Education. - EXT. P7 : COPY OF ORDER DTD. 25.2.10 OF DY. DIRECTOR REJECTING EXT. P6 APPEAL. - EXT. P8 : COPY OF ORDER DTD. 12.1.10 OF Deputy Director of Education. - EXT. P9 : COPY OF APPEAL DTD. 19.3.10 FILED BY PETITIONER BEFORE Director of Public Instruction. - EXT. P10 : COPY OF ADDITIONAL STATEMENT/LETTER DTD. 2.7.10 SENT BY PETITIONER TO Director of Public Instruction. - EXT. P11 : COPY OF ORDER DTD. 15.7.10 OF Director of Public Instruction REJECTING EXT.P9 APPEAL. - EXT. P12 : COPY OF REVISION DTD. 27.7.10 FILED BY PETITIONER BEFORE GOVT. - EXT. P13 : COPY OF ORDER DTD. 4.2.11 OF GOVT. REJECTING P12 REVISION. - EXT. P14 : COPY OF LETTER DTD. 3.9.07 OF PETITIONER TO District Educational Officer. - EXT. P15 : COPY OF REPLY DTD. 27.12.07 RECEIVED BY PETITIONER FROM District Educational Officer. WP(C).No.8467/2011 EXT. P16 : COPY OF LETTER DTD. 21.5.09 SENT BY PETITIONER TO Deputy Director of Education. EXT. P17 : COPY OF REPLY DTD. 3.6.09 RECEIVED BY PETITIONER FROM Deputy Director of Education. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.8467 OF 2011 --------------------------------------Dated this the 19[th] day of September, 2011.** ## **J U D G M E N T** The Manager of a Higher Secondary School is the petitioner herein. The grievance that is raised in the writ petition is regarding the illegality in the orders rejecting approval of appointment of a teacher as High School Assistant (Physical Science). The short facts leading to the disputes raised in the writ petition are the following: 2. By Ext.P2, the Manager appointed the 5[th] respondent as High School Assistant (Physical Science) with effect from 01.06.2009. The said vacancy arose when one protected hand was relieved for joining the parent school as evident from Ext.P1. The initial order rejecting approval is produced as Ext.P4 wherein reliance is placed on G.O.(MS) No.19/2009/G.Edn dated 09.02.2009. An appeal was filed as per Ext.P6 by the Manager against the same which was rejected by Ext.P7. A further appeal was also filed before the Director of Public Instruction and by **W.P.(C) No.8467/2011** **2** Ext.P11, the same was rejected. The reason stated therein is that the Manager has to prefer atleast one protected hand. A revision petition was filed before the Government and the Government also took the view that the rejection is proper. Ext.P13 is the copy of the order passed by the Government. The Government took the view that paragraph (4) of G.O(MS) No.19/ 2009/G.Edn dated 09.02.2009 will stand in the way of approval of appointment since all the appointments after 31.03.2006 have to be by protected hands. 3. Learned counsel for the petitioner submitted that in Wayanad District at the relevant time, no protected teacher was available in various categories including H.S.A (Physical Science). This contention is raised relying upon Ext.P17 letter from the office of the Deputy Director of Education addressed to the petitioner. It is, therefore, submitted that in the light of the decision of this Court in _**Moosakutty** vs._ _**D.E.O., Wandoor**_ (2009 (3) KLT 863) and other later decisions, the appointment will have to be approved. 4. The 2[nd] respondent has filed a counter affidavit. It is **W.P.(C) No.8467/2011** **3** clear from paragraphs 2 and 7 of the counter affidavit that there were non availability of protected hands in the category of H.S.A (Physical Science). It is averred that the 5[th] respondent was approved only on daily wages earlier as there was no protected teacher available for deputation to the post of H.S.A (Physical Science). 5. The question is whether the rejection of approval of appointment is correct especially since there was no protected hand available in the category of H.S.A (Physical Science). Evidently, the obligation of the Manager under Rule 6(viii) of Chapter V of Kerala Education Rules was to accommodate one protected teacher. In _**Moosakutty** vs._ _**D.E.O., Wandoor**_ (2009 (3) KLT 863), this Court, in interpretation of Rule 6(viii) of Chapter V K.E.R, took the view that the obligation of the Manager is to accommodate a protected teacher from the same Sub District or District as the case may be. Herein, the question is slightly different as to whether approval can be rejected on the plea that the vacancy will have to be filled up by a protected hand alone. True that a protected hand was working in the **W.P.(C) No.8467/2011** **4** school in the category of H.S.A (Physical Science) as evident from Ext.P1 who was redeployed and in that vacancy the 5[th] respondent was accommodated. In the absence of a protected hand in the category of H.S.A (Physical Science) in the district itself, the Manager cannot be compelled to leave the post as vacant indefinitely as going by the staff fixation order, the post of H.S.A (Physical Science) is sanctioned to the school. Therefore, herein there is an impossibility as far as the Manager is concerned to appoint a protected hand. Thus the approval of appointment cannot be denied on the plea that a protected teacher ought to have been absorbed and the vacancy should be kept open. 6. It is a case where the appointment is made in an existing sanctioned post available under the staff fixation order. It is not a case where an additional division vacancy was created. If it was an additional division vacancy, in the light of G.O.(P) No.317/2005/G.Edn dated 17.08.2005, the Managers were prevented from making any fresh appointments during the ban period. That contingency is also not available here. In that view **W.P.(C) No.8467/2011** **5** of the matter, it can be seen that the Manager was justified in filling up the vacancy. 7. Learned Government Pleader while opposing the pleas raised by the petitioner submitted that clause 4 of Ext.P5 Government Order was relied upon in rejecting approval. A reference to clause 4 of Ext.P5 namely, G.O.(MS) No.19/2009/ G.Edn dated 09.02.2009 shows that the same applies only in respect of additional division vacancies and cases wherein the G.O.(P)No.317/2005/G.Edn dated 17.08.2005 applies. Such is not the situation here. Therefore, the view taken by the statutory authorities as well as by the Government that the said Government Order will stand in the way of approval of appointment cannot be said to be correct. Evidently, herein no protected teacher is available in the subject. In that view of the matter, the impugned orders are quashed. There will be a direction to the District Educational Officer to approve the appointment of the 5[th] respondent as H.S.A (Physical Science) in the light of Ext.P2 appointment order and appropriate orders will be passed within a period of one **W.P.(C) No.8467/2011** **6** month from the date of receipt of a copy of this judgment. Consequential monetary benefits will be disbursed accordingly. This writ petition is allowed as above. # **T.R. RAMACHANDRAN NAIR JUDGE** smp