W.P.(C) No. 28695 of 2013 (J)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 28695 of 2013 (J)** **----------------------------** ## **PETITIONER :** **---------------------** **SR. JESSYKUTTY JOSEPH HIGH SCHOOL ASSISTANT (MATHEMATICS) ST.MARY'S HIGHER SECONDARY SCHOOL EDOOR PO, PAYAM, KANNUR DISTRICT - 670 704.** **BY ADVS.SRI.POOVAMULLE PARAMBIL ABDUL KAREEM SRI.K.N.KUMARASWAMY SARMA** ## **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION KASARGODE.** **4. THE DISTRICT EDUCATIONAL OFFICER KANHANGAD, KASARGODE DISTRICT.** **5. THE CORPORATE MANAGER CORPORATE EDUCATION AGENCY ARCHDIOCESE OF THALASSERY, KANNUR DISTRICT.** **R1 TO R4 BY GOVT. PLEADER SRI. M.A.FAYAZ R5 BY ADV. SRI.BENNY GERVACIS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 28695 of 2013 (J)** **---------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS : -------------------------------------** **EXT.P1 - TRUE COPY OF THE APPOINTMENT ORDER DATED 1-6-2010 OF THE PETITIONER.** - **EXT.P2 - TRUE COPY OF THE ORDER DATED 12-10-2010 ISSUED BY THE 4TH RESPONDENT.** - **EXT.P3 - TRUE COPY OF THE PROCEEDINGS DATED 2-11-2009 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P4 - TRUE COPY OF THE PROCEEDINGS DATED 10-3-2010 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P5 - TRUE COPY OF THE LETTER DATED 15-11-2008 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P6 - TRUE COPY OF THE LETTER DATED 18-9-2010 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P7 - TRUE COPY OF THE ORDER NO.EM5/8317/2011/DPI/K.DIS. DATED 1-7-2011 PASSED BY THE 2ND RESPONDENT.** - **EXT.P8 - TRUE COPY OF THE ORDER DATED 20-7-2012 PASSED BY THE 1ST RESPONDENT.** **RESPONDENT(S)' EXHIBITS : NIL** **------------------------------------------------------------** ## **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **P. N. RAVINDRAN, J.** ## **---------------------------------W.P.(C.) No. 28695 of 2013** ---------------------------------Dated this the 20[rd] day of June, 2014 ## **JUDGMENT** The petitioner was appointed as Upper Primary School Assistant ('UPSA' for short) in Nirmala Upper Primary School, Chemperi, an educational institution established and administered by the Corporate Educational Agency, Archdiocese of Thalassery. The said appointment was approved on 01.06.1999. Long thereafter, by Ext.P1 appointment order dated 01.06.2010, the fifth respondent Corporate Manager appointed the petitioner as HSA (Maths) in St. Mary's School, Kadumeni in the leave vacancy of Smt. Treesa Joseph who had availed leave without allowances during the period from 01.11.1995 to 31.10.2010. At the time the petitioner was thus appointed, the application submitted by Smt. Treesa Joseph for extension of the leave was pending. By Ext.P2 order passed on 12.10.2010, the District Educational Officer, Kanhangad declined to approve the petitioner's appointment as HSA (Maths) with effect from 01.06.2010 for the reason that St. Mary's High School, Kadumeni, where the petitioner was appointed as HSA (Maths), is W.P.(C) No. 28695/2013 -2- a newly opened school, that the Manager was bound to appoint a protected teacher and as a protected teacher was not appointed, the appointment of the petitioner cannot be approved. Aggrieved by Ext.P2, the Corporate Manager filed an appeal before the Deputy Director of Education, Kasargod. The said appeal was dismissed. The Manager thereupon moved a revision petition before the Director of Public Instruction. 2. The Corporate Manager had even before the petitioner was appointed as HSA (Maths), appointed Sri. N. Prasad, a protected teacher of MRVHSS, Padne as HSA (Maths) in St. Mary's High School, Kadumeni. Sri. N. Prasad was deployed to St. Mary's High School, Kadumeni as per order dated 24.09.2008 issued by the Deputy Director of Education, Kasaragod. While he was thus working as a protected teacher in St. Mary's High School, Kadumeni, a vacancy of HSA (English) arose in his parent school consequent on the promotion of Sri. T.V. Narayanan, HSA (English) as Headmaster with effect from 01.04.2009. The Manager of MRVHSS, Padne thereupon sent a letter dated 15.07.2009 to the Deputy Director of Education, Kasaragod requesting him to W.P.(C) No. 28695/2013 -3- redeploy Sri. N. Prasad to his parent school. The District Educational Officer, Kanhangad, after enquiry reported to the Deputy Director of Education that Sri. N. Prasad is the senior most protected teacher of MRVHSS, Padne and therefore, he may be repatriated to his parent school and accommodated in the vacancy of HSA (English) available in the parent school. The Deputy Director of Education thereupon issued Ext.P3 proceedings dated 02.11.2009 cancelling the deployment of Sri. N. Prasad, HSA (Maths) to St. Mary's High School, Kadumeni and repatriated him to his parent school. The Headmaster of St. Mary's High School, Kadumeni was directed to relieve the teacher without instructions from the management. Thereafter, on 08.12.2009, the Corporate Manager appointed Smt. Sreekala C.V., a protected teacher of M.K.S High School, Kuttamath as HSA (Maths) in the very same leave vacancy against which the petitioner was later appointed. By Ext.P4 order passed on 10.03.2010, the Deputy Director of Education, Kasaragod declined to approve the said appointment on the ground that a protected teacher cannot be appointed in a leave vacancy. He also directed that a protected teacher should be W.P.(C) No. 28695/2013 -4- appointed against a permanent post. It was thereafter that the petitioner was appointed as HSA (Maths) by Ext.P1 appointment order. It was notwithstanding these facts that the District Educational Officer, Kanhangad declined to approve the petitioner's appointment by Ext.P2 order dated 12.10.2010. 3. The revision petition filed by the Corporate Manager challenging Ext.P2 order declining to approve the petitioner's appointment was heard and allowed by the Director of Public Instruction, Thiruvananthapuram by Ext.P7 order passed on 01.07.2011. The Manager had in the meanwhile appointed Sri. K. Muraleedharan, a protected drawing teacher and he joined duty in the school on 01.02.2011. It was taking note of this fact that the Director of Public Instruction allowed the revision petition filed by the Corporate Manager and directed the District Educational Officer to approve the petitioner's appointment as HSA (Maths) with effect from 01.02.2011 to 28.02.2014, if it is otherwise in order. Consequently, by order passed on 29.08.2011, the District Educational Officer approved the petitioner's appointment as per Ext.P1 order dated 01.06.2010 for the period from 01.02.2011 to W.P.(C) No. 28695/2013 -5- 28.02.2014 or till the date on which Smt. Treesa Joseph rejoins duty. In this writ petition, the petitioner seeks a writ in the nature of mandamus commanding the third respondent to approve her appointment with effect from 01.06.2010. Relying on a decision of the learned single Judge of this Court in **Nadeera v. State of Kerala** [2011(3) KLT 790], the petitioner contends that she was appointed as HSA (Maths) only after the department declined to approve the appointment of a protected teacher in the leave vacancy by Ext.P4 order dated 10.03.2010 and therefore, the stand taken in Ext.P2 order cannot be sustained. Referring to Ext.P6 letter dated 18.09.2010 sent by the Deputy Director of Education, Kasargod to the Corporate Manager, it is contended that even before the petitioner was appointed, the Corporate Manager had taken steps to appoint a protected teacher as a drawing teacher but he was informed that there is no protected drawing teacher available in the District and therefore he may contact Deputy Directors of Education in other districts, that thereupon Sri. K. Muraleedharan, a protected drawing teacher from Thalassery Education District was appointed in St. Mary's High School, W.P.(C) No. 28695/2013 -6- Kadumeni and he joined duty on 01.02.2011 and therefore, no exception can be taken to the petitioner's appointment as HSA (Maths) in the leave vacancy of Smt. Treesa Joseph. 4. I heard Sri. P.P. Abdul Kareem, learned counsel appearing for the petitioner, Sri. M.A. Fayaz, learned senior Government Pleader appearing for respondents 1 to 4 and Sri. Benny Gervasis, learned counsel appearing for the fifth respondent. The pleadings and the materials on record disclose that before the petitioner was appointed as HSA (Maths) in St. Mary's High School, Kadumeni against the leave vacancy of Smt. Treesa Joseph by Ext.P1 appointment order dated 01.06.2010, the Corporate Manager had by order passed on 08.12.2009 appointed Smt. C.V. Sreekala, a protected teacher of M.K.S. High School, Kuttmath as HSA (Maths) in the very same leave vacancy. The Deputy Director of Education, Kasaragod declined to approve the said appointment on the ground that the Government orders do not contemplate the appointment of a protected teacher in leave vacancies (vide Ext.P4). It was after the department declined to approve the appointment of a protected teacher in the leave vacancy of Smt. Treesa Joseph that the W.P.(C) No. 28695/2013 -7- petitioner was appointed as HSA (Maths) in the very same leave vacancy. That appointment was however, rejected on the ground that the management should have appointed a protected teacher. 5. In the light of Ext.P4 proceedings dated 10.03.2010 issued by the Deputy Director of Education, Kasaragod, I am of the considered opinion that the stand taken by the District Educational Officer, Kanhangad in Ext.P2 and by the Deputy Director of Education, Kasaragod when he rejected the appeal therefrom, cannot be sustained. That apart, Ext.P3 discloses that before Smt. C.V. Sreekala was appointed, the Manager had accommodated a protected teacher in the school and he was repatriated to his parent school only in November, 2009. Still later, the Manager had appointed yet another protected teacher from another Educational District on 01.02.2011. The Director of Public Instruction also lost sight of the aforesaid facts and declined to approve the petitioner's appointment with effect from 01.06.2010. However, in view of the fact that a protected teacher was appointed on 01.02.2011, he directed the District Educational Officer to approve the petitioner's appointment with effect from that date. W.P.(C) No. 28695/2013 -8- 6. Having regard to the totality of the facts stated above, I am of the considered opinion that the petitioner is entitled to have her appointment as HSA (Maths) approved with effect from 01.06.2010. In view of the stand taken by the Department in Ext.P4, approval of the petitioner's appointment with effect from 01.06.2010 cannot be declined. Further the petitioner was working as UPSA and her appointment was by way of promotion under rule 43 of Chapter XIV-A of the KER. In the case of such appointments, approval cannot be declined if the teacher is otherwise eligible. I, accordingly hold that the petitioner is entitled to succeed. For the reasons stated above, I declare that the petitioner is entitled to have her appointment as HSA (Maths) approved on a regular basis with effect from 01.06.2010. The District Educational Officer, Kanhangad shall issue revised orders approving the petitioner's appointment as HSA (Maths) by Ext.P1 appointment order dated 01.06.2010 with effect from 01.06.2010 on a regular basis, expeditiously and in any event within an outer limit of one month from the date on which the petitioner produces a certified copy of this judgment before him. The fifth respondent and the W.P.(C) No. 28695/2013 **==> picture [16 x 9] intentionally omitted <==** District Educational Officer shall thereupon take steps to draw and disburse arrears of salary and allowances to the petitioner. This shall be done without fail within a further period of three months. No costs. sd/- **P. N. RAVINDRAN, JUDGE.** rv