V. Abdul Salam and P. V. Ahammad Kabeer v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933** ## **WP(C).No. 30799 of 2008(N)** ## **------------------------------------** ## **PETITIONER(S):** - **---------------------** **1. V.ABDUL SALAM S/O. ABU, AGED 30 YEARS UPPER PRIMARY SCHOOL ASSISTANT, M.M.A.U.P. SCHOOL, P.O.AVILORA (VIA) KODUVALLY, THAMARASSERY, KOZHIKODE.** **2. P.V.AHAMAD KABEER,UPPER PRIMARY SCHOOL,ASSISTANT, M.M.A.U.P. SCHOOL, P.O. AVILORA,(VIA) KODUVALLY, THAMARASSERY, KOZHIKODE.** - **BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA** ## **RESPONDENT(S):** ## **--------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM-14.** **3. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT** **4. THE ASSISTANT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT** **5. THE MANAGER, M.M.A.U.P. SCHOOL,** - **P.O. AVILORA, (VIA) KODUVALLY,THAMARASSERY, KOZHIKODE.** **R1 TO R4 BY GOVT. PLEADER SMT.NISHA BOSE R5 BY ADV. SRI.K.A.MANZOOR ALI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, ALONG WITH WPC NO. 19517 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.30799/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE ORDER NO.B/5559/05/L.DIS. OF THE ASST. EDL. OFFICER (IST PET.) DTD. 2.1.06.** **P2:- COPY OF THE ORDER O.B/1904/07/L.DIS OF THE ASST. EDL. OFFICER (2ND PET.) DTD. 20.7.07.** **P3:- COPY OF THE ORDER NO.B2/K.DIS. 1573/07 OF THE OF DIST. EDL. OFFICER (IST PET.) DTD. 30.3.2007.** **P4:- COPY OF THE ORDER NO.B2/K.DIS /6482/07 OF THE DO. (2ND PET.) DTD. 29.12.07.** **P5:- COPY OF THE ORDER NO.G3/49985/2007/DPI OF THE 2ND RESPONDENT (IST PET.) DT. 9.8.07.** **P6:- COPY OF THE ORDER NO.G3/36789/08/DPI/K.DIS OF 2ND RESPONDENT (2ND PET. ) DTD. 25.6.2008.** **P7:- COPY OF THE LETTER NO.24499/L1/08/G. EDN. OF THE GOVERNMENT DTD. 26.5.2008.** **P8:- COPY OF THE DECLARATION OF THE MANAGER 14.7.08.** **P9:- COPY OF THE G.O.(RT) 3805/06/G.EDN. OF THE GOVERNMENT DTD. 26.8.2006.** **P10:- COPY OF THE G.O.(RT0 3776/2006/G.EDN. OF THE GOVERNMENT DTD. 24.8.06.** **P11:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. 5258/2003. DTD. 10.11.2006.** **P12:- COPY OF THE DECISION REPORTED IN 1993 (2) K.L.T. SHORT NOTES P.27 C. 28.** **P13:- COPY OF THE CIRCULAR 74101/J2/04/G.EDN. DTD. 24.1.2005.** **P14:- COPY OF THE LETTER B4/6500/08/(1) D.D.E DTD. 22.20.08.** **P15:- COPY OF THE JUDGMENT IN WPC. 8039/08 DT.D 1.6.09.** **P16:- COPY OF THE DECISION REPORTED IN 2009 (2) KLJ 402 DTD. 1.4.09.** **P17:- COPY OF THE JUDGMENT IN WPC. 2563/08. DTD. 24.9.08.** **P17:- COPY OF THE ORDER NO.B4-10225/09 OF THE DEPUTY DIRECTOR OF EDUCATION DT. 15.7.09 ( I.A. NO.10199/2009.).** **P18:- COPY OF THE JUDGMENT IN WPC. 28577/2008. DTD. 15.8.2011.** ## **RESPONDENT'S EXHIBITS** **NIL:-** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~`** ``` W.P.(C). Nos.30799/2008-N & 19517/2009-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3[rd] day of November, 2011 ``` ``` J U D G M E N T ``` ``` In both these writ petitions, the issue is ``` ``` regarding the approval of appointment of the petitioners. ``` ``` 2.W.P.(C). No.19517/2009 is filed by the second petitioner in W.P.(C). No.30799/2008. Therein, the challenge is against Ext.P11 order whereby the Government rejected the claim for approval. It is submitted by the learned counsel for the petitioner that pending the writ petition, the petitioner's appointment was approved from 30/07/2009, the date on which a protected hand was appointed. ``` ``` 3.The first petitioner in W.P.(C). No.30799/2008 was appointed with effect from 23/07/2005 and the second petitioner was appointed with effect from 01/07/2004 and by Exts.P1 and P2 orders produced in the said writ petition, the approval was declined stating that no protected teacher has been absorbed in the school which is a newly upgraded one. The appeals were ``` **W.P.(C). Nos.** **`30799/2008 & 19517/2009`** ## **-:2:-** ``` rejected by Exts.P3 and P4 by the District Educational Officer which was confirmed by Exts.P5 and P6 orders by the Director of Public Instruction. Ext.P7 is the order passed by the Government in the revision petition filed by the Manager affirming the said view. ``` ``` 4.Heard the learned counsel for the petitioners and the learned Government Pleader. ``` ``` 5.Learned counsel for the petitioners submitted that the Department has not communicated the list of protected teachers in terms of the specific provisions of Government Orders, namely, G.O.(P).No.178/02/G.Edn., dated 28/06/2002 and G.O.(P).No.46/06/G.Edn., dated 01/02/2006.Ext.P17producedalongwith I.A.No.10199/2009 in W.P.(C). No.30799/2008 is an order whereby a protected teacher in Lower Grade (Sanskrit) has been deployed to the said school. It is pointed out that the said teacher joined duty on 30/07/2009. Therefore, the petitioners point out that there is no embargo in approving their appointments from the respective dates of appointments itself. ``` ## **W.P.(C). Nos.** **`30799/2008 & 19517/2009`** ## **-:3:-** **`6. The learned counsel for the petitioners relied upon various Judgments of this Court, namely, Ext.P18 produced along with I.A.No.14274/2011 in W.P.(C). No.30799/2008 wherein this Court considered various legal aspects and held that the Department ought to have communicated the list of protected teachers and therefore, in the absence of the same, the Manager cannot be found fault for not appointing a protected hand. The said Judgment has been reported as` Nadeera v. State of Kerala [2011 (3) KLT 790]** **`. All the relevant Circulars issued have been elaborately considered therein. This Court has held that the approval of appointment cannot be postponed till a protected teacher joins the school.`** ``` 7.In the counter affidavit filed by the fourth respondent in 19517/2009, in para.6 it is pointed out that the petitioner was appointed in a newly created post in the year 2004-05. The post in which the petitioner was appointed was sanctioned only on 12/01/2006 with retrospective effect from 28/10/2004 as per G.O.(Rt).No.206/06/G.Edn., dated 12/01/2006. It ``` **W.P.(C). Nos.** **`30799/2008 & 19517/2009`** ## **-:4:-** ``` is pointed out further that as there was no sanctioned post, the Deputy Director of Education cannot direct the appointment of a protected teacher in the school as on 01/07/2004. Accordingly, it is pointed out in para.7 that the list of protected teachers could not have been forwarded by the Department when there was no sanctioned post on 01/07/2004. ``` ``` 8.Evidently, the petitioners have been granted approval from the date on which the protected hand had joined the schoo1. ``` **`9. In the light of the Judgment of this Court in` Nadeera's case [** _**supra**_ **],** **`the approval of appointment cannot be postponed till a protected hand joins duty. Therefore, the restriction of the approval of the petitioner in W.P.(C). No.19517/2009 cannot be justified. But the question is whether he is entitled for grant of approval from the date of appointment. Herein, the post was sanctioned only by order dated 12/01/2006 of course, with retrospective effect. Even though the learned counsel for the petitioners`** ## **W.P.(C). Nos.** **`30799/2008`** ``` & 19517/2009 ``` ## **-:5:-** ``` submitted that an appointment can be made in an anticipated vacancy, fact remains that the post was sanctioned with retrospective basis only in 2006. When we are considering the question whether there is a failure on the part of the Department to communicate the list of protected teachers, the aspect pointed out by the respondents in the counter affidavit that no list could be furnished in the absence of a sanctioned post is material. Even if a list is forwarded at that point of time, the Manager could not have made any appointment since there was no sanction to the post also. Same is the position of the petitioner in W.P. (C). No.30799/2008 where the order of sanction is from 12/01/2006 but with retrospective effect. Therefore, the right of the petitioners for approval emanates from 12/01/2006 which cannot be denied. Evidently, there is a failure on the part of the Educational Officers to communicate the list of protected teachers from 2006 onwards. It is a case where the Manager had agreed to appoint a protected teacher in Sanskrit by filing a ``` **W.P.(C). Nos.** **`30799/2008 & 19517/2009`** ## **-:6:-** ``` declaration, a copy of which is produced as Ext.P8 in W.P.(C). No.30799/2008. ``` ``` 10.In that view of the matter, the petitioners are entitled to be granted approval from the date on which the post was sanctioned, namely, 12/01/2006. ``` ``` 11.Therefore, the writ petitions are allowed to that extent. It is declared that the appointment of the petitioners are liable to be approved from 12/01/2006,thedateonwhichG.O.(Rt). No.206/06/G.Edn., dated 12/01/2006 was issued. The ``` ``` impugned orders are therefore, quashed. Appropriate orders will be passed by the District Educational Officer with regard to the grant of approval of the petitioners from the said date within two months from the date of receipt of a copy of this Judgment and consequential monetary benefits will also be disbursed. No costs. ``` ## **`Sd/-`** ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**