High Court of KeralaSingle Judge2015-03-25Writ petition dismissed

V. Fousia v. State of Kerala and Others

Case / Petition Number:WP(C).No. 15710 of 2012 (K)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Shaffique
Judgment Date: 2015-03-25
Court Decision / Holding: Writ petition dismissed. The petitioner’s request for approval prior to 01/12/2006 was refused, and Ext.P9/Ext.P1 were not sufficient to grant retroactive relief.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

V. Fousia, aged 30 years, wife of Yousuf, High School Assistant (Mathematics), Muslim Educational Society Higher Secondary School, Ponnani, Malappuram District

Respondents

The State of Kerala represented by its Secretary to Government, General Education Department, Secretariat Thiruvananthapuram - 695 001
The Director of Public Instructions, Jagathy, Thiruvananthapuram - 695 014
The Deputy Director of Education, Down Hill, Malappuram - 676 519
The District Educational Officer, Tirur, Malappuram District - 676 101
The Corporate Manager, Muslim Educational Society Schools, Kozhikode - 673 001

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. A. Muhammed
• Sri K. E. Hamza

Counsels for Respondents

• Government Pleader Mr. Rinny Stephen Chamapparambil

Case Synopsis & Summary

The petitioner, V. Fousia, was appointed as High School Assistant (Mathematics) in the Muslim Educational Society Higher Secondary School, Ponnani, Malappuram District, on 01/09/2004. Her appointment was not approved on the ground that protected teachers were not appointed, and Ext.P9 reflects the rejection of approval. Appeals before the educational authorities and a revision before the Government were dismissed, and a review petition was eventually filed. The petition culminated in Ext.P1 (dated 03/06/2008) by which her appointment was approved with effect from 01/12/2006, on the basis that a protected teacher was in place and the Corporate Manager had appointed the petitioner. The Government argued that the protection existed and approval from 01/12/2006 was proper, while the earlier rejection remained intact for 01/09/2004. The petitioner relied on a Division Bench decision in State of Kerala v. Nadeera (2013(2) KLT 88) to contend that if the Department failed to send the list of protected teachers, there was no obligation on the management to appoint such teachers. The court, while acknowledging the proposition in Nadeera, held that the management could not rely on lack of a list where Ext.P1 shows a review was entertained under special circumstances and that Ext.P9 indicates a protected teacher existed. Ultimately, the court refused relief, concluding that the petitioner was not entitled to retroactive approval and dismissed the writ petition. The decision was rendered by a Single Judge, Justice A.M. Shaffique, on 25 March 2015.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that her appointment, made on 01/09/2004, should be approved with effect from that date. Appeals and revisions were dismissed, but Ext.P1 (03/06/2008) granted approval with effect from 01/12/2006 after considering the existence of a protected teacher and the Corporate Manager’s involvement. The petitioner asserts that the non-availability of a forwarded list of protected teachers (as argued in State of Kerala v. Nadeera) cannot defeat her right to backdated approval, and that the special circumstances surrounding Ext.P1 justify relief.

Contentions of Respondents

The Government submits that approval from 01/12/2006 was proper because a protected teacher existed in the school, and that the earlier rejection of 01/09/2004 remains valid. The review petition was entertained only because protected-teacher status was evident; the manager’s lack of a list argument is not established, and Ext.P9 confirms the existence of a protected teacher in Malappuram during the relevant period. Thus, the petition for relief cannot be granted.

Cited Precedents (9)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Nadeera	2013(2) KLT 88	Mentioned Only	Acknowledged by the petitioner and cited in argument; court did not adopt the proposition to grant relief but noted it as a well-founded view.
JUDGMENT IN WPC NO. 2563/2008	WPC 2563/2008	Mentioned Only	Exhibit cited as a prior judgment; not a controlling authority for the decision.
JUDGMENT IN WA NO.770/1987	WA 770/1987	Mentioned Only	Exhibit cited within the petition; not applied as binding precedent in this matter.
DECISION REPORTED IN 2011 (3) KLT 790	2011 (3) KLT 790	Mentioned Only	Exhibit/decision referenced; used for context, not controlling outcome here.
JUDGMENT IN WPC NO.30979/2010	WPC 30979/2010	Mentioned Only	Exhibit; a decision of this court cited within the record.
JUDGMENT IN WA NO.183/2010	WA 183/2010	Mentioned Only	Exhibit; referenced as a prior order/judgment.
DECISION REPORTED 2009(3) KLT 663	2009(3) KLT 663	Mentioned Only	Exhibit; decision cited for context.
OP NO. 7847/1983	OP No. 7847/1983	Mentioned Only	Exhibit; original petition decision cited.
JUDGMENT IN WPC NO.8851/2009	WPC 8851/2009	Mentioned Only	Exhibit; judgment cited within the record.

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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** **WEDNESDAY, THE 25TH DAY OF MARCH 2015/4TH CHAITHRA, 1937** ## **WP(C).No. 15710 of 2012 (K)** ## **----------------------------** **PETITIONER :** **V.FOUSIA, AGED 30 YEARS, WIFE OF YOUSUF HIGH SCHOOL ASSISTANT (MATHEMATICS) MUSLIM EDUCATIONAL SOCIETY HIGHER SECONDARY SCHOOL, PONNANI, MALAPPURAM DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENTS :** **1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, DOWN HILL, MALAPPURAM - 676 519.** **4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT - 676 101.** **5. THE CORPORATE MANAGER, MUSLIM EDUCATIONAL SOCIETY SCHOOLS, KOZHIKODE - 673 001.** ## **R1 TO R4 BY GOVERNMENT PLEADER MR. RINNY STEPHEN CHAMAPARAMBIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 15710 of 2012 (K)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT P1. TRUE COPY OF THE G.O (RT) NO.2526/2008/G.EDN. DATED 3.6.2008 OF THE GOVERNMENT.** - **EXHIBIT P2. TRUE COPY OF THE G.O (RT) NO.1413/2007/G.EDN. DATED 28.3.2007 OF THE GOVERNMENT.** - **EXHIBIT P3. TRUE COPY OF THE ORDER NO.EM (6) 56705/06/DPI/K.DIS. DATED 1.6.2007 OF THE 2ND RESPONDENT.** - **EXHIBIT P4. TRUE COPY OF THE ORDER NO.EM (6) 109313/04/DPI/K.DIS. DATED 25.10.2007 OF THE 2ND RESPONDENT.** - **EXHIBIT P5. TRUE COPY OF THE ORDER NO.EM (6) 53315/07/DPI/K.DIS. DATED 12.11.2007 OF THE 2ND RESPONDENT.** - **EXHIBIT P6. TRUE COPY OF THE ORDER NO.EM (6) 53385/07/DPI/K.DIS. DATED 24.11.2007 OF THE 2ND RESPONDENT.** - **EXHIBIT P7. TRUE COPY OF THE ORDER NO.EM (6) 13136(10)/08/DPI/K.DIS. DATED 20.05.2008 OF THE 2ND RESPONDENT.** - **EXHIBIT P8. TRUE COPY OF THE JUDGMENT IN WPC NO. 30979/2010 V OF THIS HON'BLE COURT DATED 23.06.2011.** - **EXHIBIT P9. TRUE COPY OF THE GO (RT) NO.5006/2011/G.EDN. DATED 14.11.2011 OF THE GOVERNMENT.** - **EXHIBIT P10. TRUE COPY OF THE G.O (P) NO.178/2002/G.EDN DATED 28.06.2002 OF THE GOVERNMENT.** - **EXHIBIT P11. TRUE COPY OF THE CIRCULAR NO.7401/J2/2004/G.EDN. DATED 24.1.2005 OF THE GOVERNMENT.** - **EXHIBIT P12. TRUE COPY OF THE G.O (RT) NO.3776/06/G.EDN DATED 24.08.2006 OF THE GOVERNMENT.** - **EXHIBIT P13. TRUE COPY OF THE JUDGMENT IN WPC NO. 2563/2008 OF THIS HON'BLE COURT DATED 24.9.2008.** - **EXHIBIT P14. TRUE COPY OF THE DECISION REPORTED IN 2011 (3) KLT 790 DATED 04.08.2011.** - **EXHIBIT P15. TRUE COPY OF THE JUDGMENT IN WPC NO.564/2009 P DATD 22.9.2011 OF THIS HON'BLE COURT.** - **EXHIBIT P16. TRUE COPY OF THE JUDGMENT IN OP NO. 7847/1983 DATED 07.11.1986 OF THIS HON'BLE COURT.** ## **WP(C).NO. 15710 OF 2012 (K)** - **EXHIBIT P17. TRUE COPY OF THE JUDGMENT IN WA NO.770/1987 DATED 24.10.1987 OF THIS HON'BLE COURT.** - **EXHIBIT P18. TRUE COPY OF THE DECISION REPORTED 2009(3) KLT 663 DATED 29.6.2009.** - **EXHIBIT P19. TRUE COPY OF THE JUDGMENT IN WA NO. 183/2010 DATED 21.7.2010 OF THIS HON'BLE COURT.** - **EXHIBIT P20. TRUE COPY OF THE ORDER IN SLP NO. 36558/2010 DATED 10.1.2011.** - **EXHIBIT P21. TRUE COPY OF THE JUDGMENT IN WPC NO.8851/2009 DATED 23.03.2011 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS** ## **: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **bp** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.15710 of 2012 ---------------------------------------Dated this the 25[th] day of March 2015 ## **J U D G M E N T** Petitioner has approached this Court dissatisfied by Ext.P9 by which the claim for approving her service with effect from 01/09/2004 has been rejected. It is not in dispute that the petitioner was appointed in the School managed by the 5[th] respondent on 01/09/2004. Her appointment was not approved on the ground that protected teachers were not appointed. Appeal filed before the educational authorities were rejected and revision filed before the Government was also dismissed. Subsequently a review petition seems to have been filed by the petitioner which resulted in Ext.P1 order dated 03/06/2008 by which the petitioner's appointment was approved with effect from 01/12/2006. Reference of Ext.P1 order would show that the petitioner was appointed as High School Assistant (Maths) with effect from 01/09/2004 in the MESHSS, Ponnani. When the educational authorities had rejected the appeals, review W.P.C.No.15710/2012 2 petition was filed. Her request in the review petition was for appointment at least from 22/11/2006 since one protected teacher in H.S.A (Maths) Smt.Sheeba.K.L. deployed to a Government school was absorbed in the M.E.S.H.S.S, Irimbiliyam with effect from 21/11/2006, another school under the same management. Therefore, the only request by the petitioner in the review petition was for approval effective from 22/11/2006. The Government, having considered the same, had formed an opinion that since a protected teacher was appointed in the school of the Corporate Manager, approved the appointment of the petitioner with effect from 01/12/2006. Against Ext.P1, the petitioner had filed another representation to the Government which resulted in Ext.P9. 2. Counter affidavit has been filed by the 1[st] respondent supporting the stand taken by the Government. It is inter alia stated that, in the review petition, the claim of the petitioner was only for approval of her service with effect from 22/11/2006 and having considered the fact that the W.P.C.No.15710/2012 3 Corporate Manager has already appointed a protected teacher, approval was granted with effect from 01/12/2006. The claim in respect of approval from 01/09/2004 had been rejected even earlier in terms of various orders passed by the Government and even in the appeal filed before the Government. The review was entertained only when it was pointed out that a protected teacher has been appointed. Under such circumstances, petitioner cannot claim any benefit for approval prior to 01/12/2006. 3. The learned counsel for the petitioner however relied upon the Division Bench judgment of this Court in **State of Kerala v. Nadeera** _[2013(2) KLT 88]_ in order to contend that if the Department has not send the list of protected teachers, there is no obligation on the part of the management to appoint the protected teachers. True that such a proposition is well founded. But the manager has no case that no such list has been forwarded to them. That apart, it is clear from Ext.P1 that the review petition was entertained by the Government only under a special W.P.C.No.15710/2012 4 circumstance and that too when materials were available to show that protected teacher has been appointed. Even in Ext.P9, it is indicated that there was a protected teacher in Malappuram District during the aforesaid period and the petitioner cannot take a stand that the manager was not informed about the list of protected teachers. As already indicated, the management does not have such a case. Petitioner will not be in a position to state as to whether the department has informed the management about the list of protected teachers or not. Under such circumstances, the judgment relied upon by the petitioner cannot be the basis for granting any relief to her. The facts being so, I do not think that the petitioner is entitled for any relief and accordingly the writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.15710/2012 5 W.P.C.No.15710/2012 6 W.P.C.No.15710/2012 7