High Court of KeralaSingle Judge2021-07-28Writ petition allowed in part; directions to re...

V. Abdullakutty Haji v. State of Kerala and Others

Case / Petition Number:WP(C) NO. 6389 OF 2020

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-07-28
Court Decision / Holding: The writ petition is allowed in part. The court directs the 4th respondent, District Educational Officer, to reconsider the petitioner's claim for approval of the appointment of Smt. Remya, after hearing the petitioner and the teacher (physically or via video), and to pass an appropriate order within three months from the date of receipt of a copy of the judgment. The reconsideration should be on the basis of fulfillment of all imperative conditions, and not be hindered by Exts.P4 and P5; the merits of Ext.P7 need not be decided at this stage. The judge also notes that the challenge to Ext.P7 remains open for future consideration if warranted.
Final Disposition: Writ petition allowed in part; directions to reconsider the appointment of the teacher with hearing within three months; merits of Ext.P7 not decided at this stage, leaving open further challenge if warranted.

Parties to the Case

Appellants / Petitioners

V. Abdullakutty Haji, Manager, AMUP School, Pattambi

Respondents

State of Kerala represented by its Secretary, Department of General Education, Secretariat, Thiruvananthapuram
Director of General Education
Deputy Director of Education
District Educational Officer, Ottapalam
Assistant Educational Officer, Pattambi

Legal Representation & Advocates

Counsels for Petitioners

• Santheep Ankarath
• Smt. C.K. Sherin

Counsels for Respondents

• Sri. P.M. Manoj, Sr. GP

Case Synopsis & Summary

The petitioner, V. Abdullakutty Haji, Manager of AMUP School, Pattambi, challenged Ext.P7 amendments to the Kerala Education Rules (KER) and sought approval for the appointment of Smt. M. Remya as Upper Primary School Teacher in the school. The core dispute centers on filling a head teacher vacancy in 2018 when no ‘protected teacher’ list was supplied despite Ext.P2, forcing the manager to appoint Remya on 28.11.2018. Respondents rejected the appointment via Ext.P4 on the ground that only a protected teacher could fill the vacancy, prompting Ext.P5 appeal and a subsequent directive from the District Educational Officer to initiate action. The petitioner contends that the amendments to the KER (Ext.P7) and the lack of a response to Ext.P2 should be irrelevant because there were no available protected teachers and the court should apply previously laid-down principles (Nadeera v. State of Kerala; Moosakutty v. DEO) to permit the appointment from 28.11.2018. The government side argues that the vacancy’s origin date and non-availability of protected teachers in 2018 justify not approving the appointment, and issues under Rule 7A, Chapter XIVA of the KER require reconsideration. The High Court ultimately directs the District Educational Officer to reconsider the petition, hear both the petitioner and the teacher, and pass a fresh order within three months, while leaving Ext.P7’s merits undecided for now. The decision leaves the petition alive for further scrutiny rather than outright decision on the amendments.

Provisions of Law Cited

Kerala Education Rules (KER) Chapter XIVA, Rule 7AG.O.(P) 3/2019/G.EDN. (28.2.2019) amending the KER

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P7 introducing amendments to the Kerala Education Rules should not bar appointment in the absence of a response to Ext.P2 for a list of protected teachers. He asserts the vacancy likely arose before 2018, that no protected teachers were available in 2018, and therefore the manager was compelled to appoint Smt. Remya on 28.11.2018. He submits that delaying approval invites reliance on Nadeera and Moosakutty, arguing for applying established principles to permit the appointment from 28.11.2018 and for the court to disregard Exts.P4 and P5 if necessary. He seeks relief directing approval of Remya’s appointment and contends that a decision on Ext.P7’s amendments should not bar immediate relief to the teacher.

Contentions of Respondents

The respondents argue the appointment cannot be approved since the head teacher vacancy’s date of origin is undisclosed and earlier years allegedly lacked protected teachers. They contend that Ext.P2 did not produce a response because by 2018 protected teachers were unavailable, and therefore the DDE’s silence does not support approval. They urge reconsideration under Rule 7A, Chapter XIVA, noting the amendments (Ext.P7) and the necessity to weigh protected-teacher availability and statutory changes, while maintaining that the merits of Ext.P7 need not be decided in this petition and that the officials must reassess after hearing both sides.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Nadeera v. State of Kerala	2011 (3) KLT 790	Positive	The court cites Nadeera to align with principles applying where protected-teacher lists are not furnished, supporting appointment considerations in absence of a response.
Moosakutty v. DEO, Wandoor	2009 (3) KLT 863	Positive	Moosakutty is cited as authority consistent with the approach to protected-teacher considerations influencing the appointment process.

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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 DEVAN RAMACHANDRAN** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943** ## **WP(C) NO. 6389 OF 2020** ## **PETITIONER:** **V. ABDULLAKUTTY HAJI, AGED 67 YEARS MANAGER, AMUP SCHOOL, KARAKKAD, KUNDOORKKARA POST, PATTAMBI - 679313, PALAKKAD DISTRICT.** **BY ADVS. SANTHEEP ANKARATH SMT.C.K.SHERIN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY KNOWN AS DIRECTOR OF PUBLIC INSTRUCTION), JAGATHI, THIRUVANANTHAPURAM - 695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD - 678 001.** - **4 DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD DISTRICT, PIN - 679 101.** - **5 ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, PATTAMBI, PALAKKAD DISTRICT, PIN - 679 303.** ## **OTHER PRESENT:** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6389 OF 2020** **2** ## **J U D G M E N T** The Manager of “AMUP School”, Pattambi, Palakkad, has approached this Court assailing Ext.P7 amendments made to the provisions of the Kerala Education Rules (KER); and for a direction to the respondents to approve the appointment of a certain Smt.M.Remya as an Upper Primary School Teacher in the School. 2. The petitioner says that Smt.M.Remya was appointed on 28.11.2018, against the Head Teacher Vacancy. He says that since the law provides that such a vacancy can be filled up only by appointing a ‘protected teacher’, he addressed Ext.P2 letter to the 3[rd] respondent – Deputy Director of Education (DDE), Palakkad, requesting that a list of such teachers be made available to him. He asserts that, in spite of Ext.P2, no list was furnished and therefore, that he has no other option but to appoint Smt.M.Remya to the said vacancy, with effect from 28.11.2018 . 3. The petitioner alleges that, however, when he preferred the papers for approval of appointment of Smt.M.Remya, through Ext.P3, the 5[th] respondent issued Ext.P4 order, rejecting the same citing the reason saying that only a ‘Protected Teacher’ could have been appointed to the said vacancy; and that, therefore, he was **WP(C) NO. 6389 OF 2020** **3** constrained to prefer Ext.P5 appeal dated 28.02.2019 before the 4[th] respondent - District Educational Officer (DEO), who thereupon issued a direction to the Assistant Educational Officer (AEO) to initiate action, adverting to the documents referred as 3 to 5 therein. 4. The petitioner says that the references made in Ext.P5 relate to the amendments made to the KER, namely Ext.P7, and that he has, therefore, been forced to approach this Court impugning the same. 5. After contending as afore, the learned counsel for the petitioner, Smt.C.K.Sherin, submitted that, in fact, challenge to the amendments in the KER may not be now relevant for this Court to consider on its merits because the fact remains that Smt.M.Remya was appointed consequent to no answer being received on Ext.P2 request and therefore, that declarations of law by this Court in **Nadeera v. State of Kerala [2011 (3) KLT 790]** and **Moosakutty v. DEO, Wandoor [2009 (3) KLT 863),** would apply in its full force. The learned counsel, therefore, prayed that this writ petition be allowed, directing the respondents to grant approval to Smt.M.Remya with effect from 28.11.2018 and added that if this be so, the challenge to the amendments will not be **WP(C) NO. 6389 OF 2020** **4** pressed. 6. The learned Senior Government Pleader - Sri.P.M.Manoj, in answer, submitted that appointment of Smt.M.Remya with effect from 28.11.2018 cannot be allowed in any manner because the Manager has not disclosed when the head teacher vacancy arose. He submitted that he has reliable information that said vacancy arose several years prior to 2018 and therefore, that Manager ought to have sought for filling up of the same at the relevant time, when protected teachers were available in the educational district. He submitted that, however, by the time Ext.P2 was issued to the 3rd respondent - DDE, in the year 2018, all protected teachers in the district had been deployed and no one else was available. He submitted, it is, therefore, that no reply was issued to Ext.P2. 7. When I hear the learned Senior Government Pleader as afore, it is obvious that whatever be the date of occurrence of the vacancy, the Manager had addressed Ext.P2 letter to the 3rd respondent - DDE requesting that a list of protected teachers be furnished to him. If such a list had been furnished, obviously, the Manager could have appointed only a teacher from among them and not Smt.M.Remya. **WP(C) NO. 6389 OF 2020** **5** 8. However, it is now expressly conceded that no protected teachers were available in the district during the year 2018, at the time when Ext.P2 was received by the DDE and therefore, that no response was made to the same. 9. Therefore, even if it is assumed, for the sake of argument, that the vacancy in question arose prior to 2018, the fact that the Manager did not fill up the same, cannot present a hurdle to him to fill it up in the year 2018, which he attempted when Ext.P2 letter was issued to the DDE. When the DDE did not respond to Ext.P2 - it being now conceded that no protected teachers were available at that time - I cannot find the action of the Manager in having appointed Smt.M.Remya with effect from 28.11.2018 to be, in any manner, in error. 10. At this time, the learned Senior Government Pleader - Sri.P.M.Manoj, interdicted to say that appointment of Smt.M.Remya is also in violation of Rule 7A, Chapter XIVA of the KER. He however, admitted, to a pointed question from this Court, that this issue has never been mentioned in any of the impugned orders, but nevertheless asserted that this being a question of law, this Court must consider it on merits. 11. The sum total of the afore is that appointment of **WP(C) NO. 6389 OF 2020** **6** Smt.M.Remya cannot be found to be illegal for the reason that the Manager did not appoint a protected teacher, because no response was given to him by any of the Authorities to the request, namely Ext.P2. 12. That said, the question whether appointment of Smt.M.Remya is in violation of Rule 7A, Chapter XIVA of the KER, is not an issue that has been raised directly in this case; and I do not, therefore, deem it necessary to answer it at this stage, since am certain that the Authorities must reconsider the claim of the petitioner for approval of the appointment of Smt.M.Remya, after hearing him as also the said teacher. In the afore circumstances, I order this writ petition and direct the 4th respondent - District Educational Officer, to reconsider the claim of the petitioner - Manager for approval of the appointment of Smt.M.Remya and to take a decision thereon de hors what is stated in Exts.P4 and P5, but on satisfying that all other imperative conditions are fulfilled; and after affording an opportunity of being heard to the petitioner as well as the teacher ― in question - Smt.M.Remya either physically or through video ― conferencing thus culminating in an appropriate order thereon, as expeditiously as is possible but not later than three months from **WP(C) NO. 6389 OF 2020** **7** the date of receipt of a copy of this judgment. Since I have not considered the merits of the challenge of the petitioner against Ext.P7, I leave it open to be pursued in future, if it becomes so warranted. **SD/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C) NO. 6389 OF 2020** **8** ## **APPENDIX OF WP(C) 6389/2020** ## **PETITIONER EXHIBITS** |**EXHIBIT P1**|**TRUE COPY OF THE CERTIFICATE DATED 18.1.2017 ISSUED**| |---|---| ||**BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL**| ||**INSTITUTIONS.**| |**EXHIBIT P2**|**TRUE COPY OF PETITION SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 3RD RESPONDENT AND DATED 10.10.2018.**| |**EXHIBIT P3**|**TRUE COPY OF APPLICATION FOR APPROVAL DATED**| ||**28.11.2018 SUBMITTED BY THE PETITIONER BEFORE THE**| ||**5TH RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF ORDER NO.K.DIS/C/4717/2018 DATED**| ||**31.12.2018 ISSUED BY THE 5TH RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF APPEAL DATED 28.2.2019 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE 4TH RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF LETTER DATED 20.6.2019 ISSUED BY THE**| ||**4TH RESPONDENT TO THE 5TH RESPONDENT AND THE**| ||**PETITIONER.**| |**EXHIBIT P7**|**TRUE COPY OF G.O.(P) 3/2019/G.EDN. DATED 28.2.2019**| ||**ISSUED BY GOVERNMENT OF KERALA, GENERAL EDUCATION**| ||**(J) DEPARTMENT.**| |**EXHIBIT P8**|**TRUE COPY OF NOTIFICATION NO.G.O.(P)**| ||**199/2016/G.EDN. DATED 3.12.2016 ISSUED BY**| ||**GOVERNMENT OF KERALA, GENERAL EDUCATION (J)**| ||**DEPARTMENT, PUBLISHED IN KERALA GAZETTE**| ||**EXTRAORDINARY NO.2151 DATED 14.12.2016.**| |**EXHIBIT P9**|**TRUE COPY OF CIRCULAR NO.J2/57/2019/G.EDN. DATED**| ||**8.3.2019 ISSUED BY THE 1TS RESPONDENT.**| |**EXHIBIT P10**|**TRUE COPY OF LETTER DATED 2.6.2019 ISSUED BY 2ND**| ||**RESPONDENT ADDRESSED TO ALL DEPUTY DIRECTORS OF**| ||**EDUCATION.**|