W.P.(C) Nos. 564/2009-P & 1916/2009-C, High Court of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933** ## **WP(C).No. 564 of 2009(P)** ## **------------------------------------** ## **PETITIONER(S):** ## **-------------------------** **1. STANLY JOSEPH, S/O.JOSEPH, AGED 35 YEARS, HIGH SCHOOL ASSISTANT (MATHS), M.E.S.HIGHER SECONDARY SCHOOL, SREENARAYANAPURAM, P.VEMBALLUR, KODUNGALLUR, THRISSUR DISTRICT.** **2. K.K.SEEMA, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES) M.E.S.HIGHER SECONDARY SCHOOL, SREENARAYANAPURAM, P.VEMBALLUR, KODUNGALLUR, THRISSUR DISTRICT.** **3. M.S.SWAPNA, HIGH SCHOOL ASSISTANT (MATHS), M.E.S.HIGHER SECONDARY SCHOOL, SREENARAYANAPURAM, P.VEMBALLUR, KODUNGALLUR, THRISSUR DISTRICT.** - **BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA** ## **RESPONDENT(S):** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.** **3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT.** **4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT.** **5. THE CORPORATE MANAGER, MUSLIM EDUCATIONAL SOCIETY, KOZHIKODE - 673 001.** **R1 TO R4 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2011,ALONG WITH WPC NO.1916 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.564/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER NO.EM(6)/13136/08/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 25/02/2008.** - **P2 COPY OF THE ORDER NO.EM(6)/13136(2)/08/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 25/02/2008.** - **P3 COPY OF THE ORDER NO.EM(6)/13136(4)/08/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 25/02/2008.** - **P4 COPY OF THE G.O.(RT)NO.4728/08/G.EDN OF THE GOVERNMENT, DATED 24/10/2008.** - **P5 COPY OF THE G.O.(P)NO.178/2002/G.EDN OF -DO- DATED 28/06/2002** - **P6 COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN OF -DO- DATED 24/01/2005.** - **P7 COPY OF THE G.O.(RT)NO.3776/2006/G.EDN OF THE GOVERNMENT, DATED 24/08/2006.** - **P8 COPY OF THE JOINING REPORT, DATED 03/10/2008.** - **P9 COPY OF THE -DO- DATED 29/01/2008** - **P10 COPY OF THE -DO- DATED 28/03/2008** - **P11 COPY OF THE ORDER NO.EM6/53385/2007/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 24/11/2007.** - **P12 COPY OF THE ORDER NO.EM(6)/109313/04/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 25/10/2007.** - **P13 COPY OF THE ORDER NO.EM6/53315/07/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 12/11/2007.** - **P14 COPY OF THE ORDER NO.EM6/109311/06/DPI/D.DIS OF THE 2ND RESPONDENT, DATED 02/05/2007.** - **P15 COPY OF THE ORDER NO.EM(6)/13136/(8)/08/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 23/02/2008.** - **P16 COPY OF THE G.O.(RT) NO.3587/2008/G.EDN OF THE GOVERNMENT, DATED 05/08/2007.** - **P17 COPY OF THE G.O.(RT)NO.3805/06/G.EDN OF THE GOVERNMENT, DATED 26/08/2006.** - **P18 COPY OF THE G.O.(RT)NO.3155/07/G.EDN OF -DO- DATED 10/07/2007.** - **P19 COPY OF THE DECISION REPORTED IN 1993 (2)K.L.T. SHORT NOTES PAGE 27 C.NO.28, DATED 02/08/1993.** - **P20 COPY OF THE JUDGMENT OF THIS HON'BLE COURT WP(C)NO.2563/2008,DATED 24/09/2008.** **2/-** **-2-** ## **WP(C)NO.564/2009** **P21 COPY OF THE JUDGMENT OF THIS HON'BLE HIGH COURT IN WP(C)NO.8039 OF 2009, DATED 01/06/2009.** ## **RESPONDENT'S EXHIBITS:** **R1(A) COPY OF THE G.O.(P)NO.147/03/G.EDN DATED 05/06/2003. R1(B) COPY OF THE G.O.(P)NO.46/06/G.EDN DATED 01/02/2006.** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 564/2009-P & 1916/2009-C** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 22nd day of September, 2011.** ## **JUDGMENT** Both these writ petitions are filed by the respective petitioners who are teachers appointed by the Manager of the fifth respondent school. 2. In W.P.(C) No.564/2009 there are three petitioners. The first petitioner was appointed as H.S.A. (Maths) with effect from 26.7.2005 onwards against a sanctioned post in M.E.S. Higher Secondary School, Sreenarayanapuram, P. Vemballur, Kodungallur. The second petitioner was appointed as H.S.A. (Social Studies) from 28.7.2005 onwards and the third petitioner was appointed as H.S.A. (Maths) from 18.6.2004 onwards. The petitioner in W.P.(C) NO.1916/2009 was appointed as a Sewing Teacher from 22.7.2005. 3. The proposals for approval of appointment of all the petitioners were rejected for identical reason, that the Manager was obliged to appoint only protected teachers. Exts.P1 to P4 in W.P.(C) No.564/2009 are the respective orders passed by the original authority, the appellate authority and the revisional authority, viz. the Government and in W.P.(C) No.1916/2009 the respective orders have been produced as Exts.P1 and P2. 2 wpc nos.564 & 1916 of 2009 4. The contentions of the petitioners are that no list of protected teachers was furnished by the Deputy Director of Education to the Manager and hence the petitioners were appointed. It is pointed out that the Government Order relied upon by the statutory authorities and the Government, viz. G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 (Ext.P5) has been modified by Ext.P7 order dated 24.8.2006 stating that the obligation of the Manager is only to appoint one protected teacher. 5. Exts.P8 to P10 in W.P.(C) No.564/2009 are the orders appointing three protected teachers as H.S.A. in the school. It is averred in the writ petition that the Manager has also submitted an undertaking that he will appoint protected teachers in the arising vacancies in M.E.S. Higher Secondary School, Sreenarayanapuram and accordingly, the appointment of five teachers has been approved as per Exts.P11 to P15 orders, from the dates of their appointment itself. It shows that the appointments are in the posts of Physical Education Teacher, H.S.A. (SS), H.S.A. (Maths), H.S.A. (PS) and H.S.A. (NS). The very same orders are relied upon in W.P.(C) No.1916/2009 also. The petitioners are also relying upon various orders passed by the Government whereby in other schools, approval orders have been granted based on the appointment of protected teachers. 6. Ext.P20 is the judgment in W.P.(C) NO.2583/2008. That relates wpc nos.564 & 1916 of 2009 3 to the very same school wherein the petitioner therein was appointed as a part time Menial from 4.8.2003. This Court found that when there is a failure of the Educational Officers to communicate the list of protected hands, the Manager cannot be faulted for not appointing protected hands. It was also noticed that two protected hands have been appointed in the school by the Manager. Accordingly, this Court directed approval of appointment. Ext.P21 is the judgment in W.P.(C) NO.8039/2009 wherein also a similar view was taken. 7. In the counter affidavit filed by the fourth respondent, the reason mainly pointed out is that as per G.O.(P) No.178/2002/G. Edn. dated 28.6.2002, protected hands had to be appointed. The staff fixation order of the school 2005-2006 was issued only on 18.10.2005. In G.O.(Rt) No.3776/2006/G.Edn. dated 24.8.2006, the Government had directed to include the list of protected teachers to be appointed by the Manager in the arising vacancies in staff fixation order itself. The Manager herein made the appointments prior to the issuance of the staff fixation order, without waiting for the same. In para 7 of the counter affidavit, it is admitted that the Deputy Director of Education, Thrissur deployed three protected teachers in the school as requested by the Manager. It is further stated that the appointment of Shri N.K. Rasheed as Physical Education Teacher as wpc nos.564 & 1916 of 2009 4 well as other teachers, have been approved. The Manager has also executed a bond for appointing protected teachers. 8. Learned counsel for the petitioners submitted that the decision of this court in **Nadeera v. State of Kerala** (2011 (3) KLT 790) wherein this Court held the view that the indefinite postponement of approval on the plea that protected teachers have not been appointed, cannot be justified, is also in support of his pleas. 9. Evidently, going by the facts of the case, it can be seen that in respect of the very same school, approval orders have been issued from the dates of appointment itself, as per Exts.P11 to P15 orders produced in W.P. (C) No.564/2009. Exts.P8 to P10 produced therein shows the appointment of protected teachers. Therefore, it is evident that the petitioners are entitled for a similar direction. In Ext.P20 judgment, this Court in para 4 found as follows: “If list of protected hands has not been made available as required, the Manager cannot be faulted for not appointing the protected hands. Going by para 7 of the counter affidavit, two protected hands mentioned in that paragraph have since been absorbed. In view of both these reasons, I see no justification in denying the approval of the petitioner.” The same reasoning will apply as far as the case of the petitioners herein wpc nos.564 & 1916 of 2009 5 also. The plea raised by the respondents that the Manager made the appointments prior to the issuance of the staff fixation order, therefore cannot hold good. Apart from that, even under G.O.(P) No.178/2002/G.Edn. dated 28.6.2002, there was provision for communicating the list of protected teachers. What is introduced as per G.O.(Rt) No.3776/2006 dated 24.8.2006 is the provision for including the list of protected teachers in the staff fixation order. Evidently that Government Order cannot help the respondents, since the same was issued only in the academic year 2006-2007 whereas we are concerned with the appointments made in the earlier years. Therefore, the contention that the Manager made appointments without waiting for communication of staff fixation order, cannot be supported. 10. Herein, a reading of Exts.P11 to P15 orders in W.P.(C) No.564/2009 shows that after noticing that the school management has appointed protected teachers and they have been absorbed, the approval of appointments of the respective parties has been made. Evidently, being the teachers of the same school, the petitioners are also entitled for a similar treatment. Therefore, the orders rejecting the approval of appointment of the petitioners which was confirmed in appeal and revision, cannot hold good. As rightly pointed out by the learned counsel for the petitioners, the wpc nos.564 & 1916 of 2009 6 rigour of G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 was relaxed by the subsequent orders. Apart from that, the obligation of the Manager arises only under Rule 6(viii) of Chapter V K.E.R. 11. All the questions raised herein, have been considered by this Court in **Nadeera's case** (2011 (3) KLT 790) and all the Government orders including G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 have been considered therein. This Court held that there is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed. It was also held that when the list of protected teachers is not communicated, the Manager cannot be faulted and reference was made to various judgments including Ext.P20 herein. Therefore, the same dictum also applies to the facts of this case. Since Ext.P20 relates to the very same school, petitioners' cases being on the same footing, it can be safely relied upon here. In that view of the matter, the petitioners are also entitled for approval of their appointment, as the Manager has already complied with the obligation to appoint protected teachers. 12. Therefore, the writ petitions are allowed. The impugned orders in both the writ petitions, viz. Exts.P1 to P4 in W.P.(C) NO.564/2009 and Exts.P1 and P2 in W.P.(C) No.1916/2009 are quashed. It is declared that the petitioners' appointments are liable to be approved from the dates of wpc nos.564 & 1916 of 2009 7 appointment itself. The District Educational Officer will pass appropriate orders in the matter within a period of two months from the date of receipt of a copy of this judgment. Consequential monetary benefits also will be disbursed to the petitioners accordingly, without further delay. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**