The State of Kerala & 4 Others v Subair Kizhakkeparambil and 28 Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940** **WA.No. 343 of 2016** **(AGAINST THE JUDGMENT IN WP(C).NO.27503/2014 DATED 15-10-2015)** **-------------** ## **- APPELLANTS/RESPONDENTS 1 TO 4 IN W.P.(C):** **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM - 695 001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM - 676 505.** - **4 THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM - 676 505.** **BY SR GOVERNMENT PLEADER SRI.P.N.SANTHOSH** ## **- RESPONDENT(S)/PETITIONERS & 5TH RESPONDENT IN W.P.(C):** **1. SUBAIR, KIZHAKKEPARAMBIL, JUNIOR LANGUAGE TEACHER (HINDI), MMETHS, MELMURI, MELMURI.P.O.-676 517.** **2. MOOSA MUSTHAJIB,** - **H.S.A. (DRAWING), MMETHS, MELMURI, MELMURI.P.O.-676 517.** **3. RESTHINA K.K., UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **4. KHALID K.,** - **H.S.A (PHYSICAL SCIENCE), MMETHS, MELMURI, MELMURI.P.O.-676 517.** **5. MUNEER C.T.,** - **H.S.A.(PET), MMETHS, MELMURI, MELMURI.P.O.-676 517.** **2/-** **-2-** ## **WA.No. 343 of 2016** **6. SAIFUDHEEN T.M.,** - **JUNIOR LANGUAGE TEACHER (HINDI), MMETHS, MELMURI, MELMURI.P.O.-676 517.** **7. RAMLA T.P., UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **8. UMMU HABEEBA,** - **JUNIOR LANGUAGE TEACHER (ARABIC),** - **MMETHS, MELMURI, MELMURI.P.O.-676 517.** **9. SREERANJINI K.R.,** - **H.S.A(NEEDLE), MMETHS, MELMURI,** **MELMURI.P.O.-676 517.** **10. SUVARNA P.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **11. JASEENA BACKER P.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **12. ASHIQ P.,** - **UPSA(PET), MMETHS, MELMURI, MELMURI.P.O.-676 517.** **13. UMMER C.K.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **14. SHAMEENA P.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **15. SHARAFUNNEESA K.M.,** - **MMETHS, MELMURI, MELMURI.P.O.-676 517.** **16. SINDHU SUNDAR T.P.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **17. SHAMEEMA K.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **18. MUHAMMED YONUS N.K.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **19. FEBIN K.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **20. DEEPA M.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **21. JAMEELA V.K.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **22. MUHAMMED ASHRAF C.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **3/-** **-3-** ## **WA.No. 343 of 2016** **23. SHABEER P.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **24. MOHAMMED SHEREEF N.,** - **H.S.A(ENGLISH), MMETHS, MELMURI,** - **MELMURI.P.O.-676 517.** **25. CICI JOSEPH,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **26. NASEERA O.P.,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **27. BAVA CHEROOR,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **28. ABOOBACKER SIDDEQ,** - **UPSA, MMETHS, MELMURI, MELMURI.P.O.-676 517.** **29. THE MANAGER,** - **MMETHS, MELMURI, MELMURI.P.O.-676 517.** **R1 TO R28 BY ADVS. SRI.ARUN BABU** - **SRI.V.E.ABDUL GAFOOR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 22/6/2018** ## **P.R.RAMACHANDRA MENON &** ## **DEVAN RAMACHANDRAN, JJ.** ============================ W.A.No.343 of 2016 ============================ Dated this the 14[th] day of June, 2018 ## **JUDGMENT** ## **Devan Ramachandran, J.** The State of Kerala and its functionaries in the Higher Secondary Education Department have filed this appeal impugning the judgment of the learned single Judge in W.P.(C) No.27503 of 2014 wherein directions have been issued to the appellants to approve the services of respondents 1 to 28 herein from the date on which they were appointed respectively by the Manager of MMETHS, Melmuri, an aided school under the provisions of the Kerala Education Rules (for short, 'the KER'). The singular contention of the appellants is that the school in question, namely MMETHS, Melmuri is a newly opened school under the provisions of the KER since it is opened in the academic year 2004-05 and since the additional divisions were sanctioned to the school only in the year 2006-07. All vacancies in the school including those vacancies sanctioned on account of the additional divisions could have been filled up by the Manager W.A.No.343 of 2016 2 only by appointing protected teachers from the list furnished by the concerned educational authorities. It is the case of the appellants that none of respondents 1 to 28 in this case are protected teachers and they allege that they have already been appointed by the Manager from open market without asking for and waiting for a list of protected teachers to be furnished by the concerned educational authorities. On these assertions, the appellants impugned the findings of the learned single Judge that the appointments of respondents 1 to 28 have been made in consonance with the applicable Rules and Regulations. We have heard the learned Government Pleader appearing on behalf of the appellants. Since the learned counsel for the respondents were not present, we have no occasion to hear his version. The facts available from the pleadings on record would make it ineluctable that the school is certainly a newly opened school under the provisions of the KER since it was opened in the academic year 2004-05. Various vacancies arose in this school on account of creation of additional divisions in the W.A.No.343 of 2016 3 academic year 2006-07 and going by the rigor of the Government Order bearing No.178/2002/G.Edn. dated 28.06.2002, all appointments to these vacancies could have normally been made only from among protected teachers from a list that ought to have been forwarded by the educational authorities to the Manager at the relevant time. It is also the case of the Government that as regards additional divisional vacancies are concerned, approval can be granted only on compliance of the conditions in a subsequent Government Order bearing No.G.O.(P).10/10/G.Edn dated 12.01.2010 which provides that all such vacancies be filled up by the Manager only from the list of protected teachers. Even assuming that all the contentions raised by the appellants in this writ appeal can be accepted by us without any further question, the fact remains that the rigor of the Government Orders aforementioned would apply only if it is at least pleaded, if not demonstrated, that a list of protected teachers had been made available to the Manager by the concerned educational authorities at the relevant time and that the Manager had in spite of it, appointed persons from outside W.A.No.343 of 2016 4 such list. However, pertinently, in this case, there is not even a whisper in the pleadings of the appellants that such a list had been forwarded to the Manager or that the Manager had defied the directions issued to him not to appoint persons from outside such a list. These issues, in fact, are covered against the appellants in **Moosakutty v. D.E.O., Wandoor** [2009 (3) KLT 863] and **State of Kerala v. Nadeera** [2013 (2) KLT 88] whereby this Court has already declared the law emphatically and without any requirement for restatement that the rigors of the Government Orders would apply only if such a list had been forwarded to the Manager at the relevant time. In the case at hand, in the absence of any pleadings to the contrary, we can only be guided to an assumption that no such list had been forwarded by the educational authorities to the Manager and therefore, that the appointments of respondents 1 to 28 herein cannot be faulted or found vitiated from the touchstone of the provisions of the aforementioned Government Orders. In the result, we see no reason to interfere with the directions given by the learned single Judge in this case and we W.A.No.343 of 2016 5 are of the view that the learned Judge has acted within the limits of jurisdiction correctly and have assessed the factual factors in its true perspective. We, therefore, dismiss this appeal confirming the holdings and conclusions of the learned single Judge in the judgment impugned before us and consequentially direct the Government to approve the appointments of respondents 1 to 28 with effect from the date on which they were appointed through Ext.P1 series appointment orders, as expeditiously as possible but not later than three months from the date of receipt of a copy of this judgment. All consequential orders relating to the pay and benefits of respondents 1 to 28 will stand regulated and modulated consequent to the orders of approval to be issued by the competent among the appellants. ## Sd/- **P.R.RAMACHANDRA MENON JUDGE** stu ## Sd/- **DEVAN RAMACHANDRAN JUDGE**