## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR**
**TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933**
## **W.P.C. No. 36649 of 2010 (E)**
**----------------------------**
**PETITIONER:**
**-----------**
**THE MANAGER,KELALUR U.P.SCHOOL, P.O.MAMBARAM, KANNUR DIST, [K.VIJAYAN, S/O ACHUTHAN, AGED 67 YEARS, RESIDING AT K.T.HOUSE, PINARAI, VENDITTAI, THALASSERY KANNUR DISTRICT]**
**BY ADV. SRI.C.K.SREEJITH**
**RESPONDENTS:**
**------------**
**1. SMT.P.K.SHEENA, UPSA, KELALUR U.P.SCHOOL, P.O.MAMBA, KANNUR DIST 670 611.**
**2. THE STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT,TRIVANDRUM 695 001.**
**3. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY ,KANNUR DISTRICT 670 101.**
**4. THE ASSISTANT EDUCATION OFFICER,**
- **THALASSERY NORTH,KANNUR DISTRICT 670 703.**
**R1 BY SRI.ANIL SIVARAMAN**
**R2 TO R4 GOVERNMENT PLEADER, SRI. EGY. N. ELIAS**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2012, ALONG WITH WPC. 37868/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**DST**
**W.P.C. No. 36649 of 2010 (E) ----------------------------**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXT. P1 : COPY OF THE PROCEEDINGS. EXT. P2 : COPY OF THE ORDER PASSED BY DEO DATED 5/6/07. EXT. P3 : COPY OF THE ORDER DATED 30.05.08. EXT. P4 : COPY OF THE REVISION PETITION SUBMITTED BEFORE THE GOVERNMENT DATED 7/7/2008. EXT. P5 : COPY OF THE PROCEEDINGS OF THE GOVERNMENT DATED 3/11/2010. EXT. P6 : COPY OF THE G.O.(P). 259/2006 EXT. P7 : COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT.**
## **RESPONDENT'S EXHIBITS:NIL**
## **//TRUE COPY//**
**P.A.TO JUDGE**
**DST**
## **T.R. RAMACHANDRAN NAIR, J.**
**-------------------------------------------**
**W.P.(C) Nos.36649 & 37868 OF 2010 -------------------------------------------Dated this the 10[th] day of January, 2012.**
## **J U D G M E N T**
The very same order passed by the Government produced as Ext.P5 in W.P.(C) No.36649/2010 is under challenge in W.P.(C)No.37868/2010 by another Teacher who has been promoted as Headmistress.
2. The matter relates to the approval of appointment of 1[st] respondent in W.P.(C) No.36649/2010, directed by the Government as per Ext.P5. The 1[st] respondent was appointed in a leave vacancy for a period of seven years as vacancy arose due to the grant of leave to one Sri.A.K.Manoranjan from 05.09.2001 to 05.09.2006 which stands extended upto 2011. A regular vacancy arose due to the retirement of one Smt.K.Saumini, UPSA
with effect from 31.03.2007 and in that vacancy, the 1[st] respondent was appointed as per Ext.P1 order.
3. The common stand taken by the educational officers is
**W.P.(C) Nos.36649 & 37868/2010**
**2**
that the school is an uneconomic one and therefore, the approval cannot be granted. This was interfered with by the Government by Ext.P5. The reasons stated by the Government in Ext.P5 are that similarly placed teachers have been granted approval by the Director of Public Instruction by various orders. The Government was of the view that in the light of the fact that the 1[st] respondent was having approval prior to 12.10.2006 viz. from 02.06.2004, the restrictions provided under G.O(P)No.259/06/ G.Edn dated 12.10.2006 for approving appointments in the uneconomic schools will not apply to her. It is pointed out that the 1[st] respondent has been continuing in the school from 02.06.2004 in a leave vacancy which was approved and therefore when a permanent vacancy arose on 01.04.2007, she is entitled for appointment. A further condition is also put therein that the resultant vacancy will have to be filled up by a protected hand.
4. The petitioner in W.P.(C) No.37868/2010 has approached this Court in a different context even though she is
**W.P.(C) Nos.36649 & 37868/2010**
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also challenging the very same order. She is stated to be the second senior most L.P.S.A in the school. She was promoted as Headmistress in a vacancy which arose on 13.05.2010 and the proposal for approval is pending before the Assistant Educational Officer. It appears that none of the other teachers are qualified for promotion. Since no action is being taken to approve the appointment as Headmistress, the petitioner has moved the Government by Ext.P5 representation. According to the petitioner, the order granting approval of appointment of Smt.Sheena, who is the 4[th] respondent therein by the Government is not justified. Therefore, the disposal of W.P.(C) No.36649/2010 will have a bearing on W.P.(C) No.37868/2010.
5. Learned counsel for the Manager submitted that the order Ext.P5 in W.P.(C) No.36649/2010 was issued without notice to the Manager. The appointment was done by the previous Manager. It is also pointed out that there is a condition in Ext.P5 that the resultant vacancy namely, the remaining period of the leave vacancy to which the 1[st] respondent was appointed
**W.P.(C) Nos.36649 & 37868/2010**
**4**
will have to be filled up by a protected hand.
6. Normally, an order which is passed without hearing an affected party will be termed as in violation of the principles of natural justice. Herein, the Manager cannot be said to be an affected party since it is an appointment made by the Manager, even if by the previous incumbent. Therefore, the present Manager cannot disown the appointment or object to the grant of approval. Apart from that, the Manager cannot have any legal objection even if he was heard by the Government since the present Manager only succeeds to the office of the Managership and will have to recognise the appointments already made by the previous Manager. The 1[st] respondent is having approved service and the leave vacancy terminates only in the year 2011. Therefore, in the light of the various Government Orders in force and also in the light of the principles stated by the Division Bench in _**Geetha.S** vs._ _**Geo Thomas K. and others**_ (2009 (4) KHC 296), Smt.Sheena while continuing with approval in the leave vacancy is having a right to be accommodated in the regular
**W.P.(C) Nos.36649 & 37868/2010**
**5**
vacancy which has now been upheld by the Government.
7. In that view of the matter, the Manager cannot object to the approval granted by the Government. Apart from that, the reasoning adopted by the Government is unobjectable. The Government was of the view that Smt.Sheena was having approval in the leave vacancy and from 2004 onwards she is continuing in the school, and in the regular vacancy she has a rightful claim and the restrictions in the Government Order dated 12.10.2006 not to fill up the vacancies in the uneconomic school will not apply to the situation therein. Apart from that, the restrictions put in filling up of vacancies in the uneconomic schools are only by executive orders and the Government is always competent to vary or relax the condition in such executive orders by issuing an order like Ext.P5. Hence it will be a futile exercise if this Court directs a reconsideration only to hear the Manager as the Manager cannot have any objection with regard to the grant of approval. Such a futile writ need not be issued by this Court. Therefore, the objection raised by the learned counsel
**W.P.(C) Nos.36649 & 37868/2010**
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for the petitioner in W.P.(C) No.36649/2010 which is supported by the learned counsel for the petitioner in W.P.(C) No. 37868/2010 regarding the eligibility of the 1[st] respondent for approval cannot be sustained. Hence, rightly the Government has granted approval of appointment of the 1[st] respondent.
8. The next point raised is that the Government was not right in directing appointment of a protected hand. There is no evidence to show that the Manager has complied with the obligation to appoint a protected hand even though he is a successor in office. Therefore, this Court cannot absolve the Manager from the said obligation and apart from that the school is an uneconomic one also.
9. As far as W.P.(C) No.37868/2010, I have already held that the approval of appointment of Smt.Sheena by Ext.P4 order is perfectly justified. Apart from that the petitioner is not a rival claimant as far as Smt.Sheena is concerned, since the petitioner is already having approved service as L.P.S.A and she has no claim against the post of U.P.S.A. What is projected is that if an
**W.P.(C) Nos.36649 & 37868/2010**
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approval is granted from 2007, that may affect the claim of the petitioner for appointment as Headmistress in the vacancy which arose on 13.05.2010 and to which the petitioner is appointed. Evidently, the matter is pending before the Assistant Educational Officer for approval. I am of the view that the petitioner in W.P.(C) No.37868/2010 has no right to object to the regular appointment of the 4[th] respondent and hence has no real grievance in challenging the order passed by the Government.
10. One of the aspects pointed out in the counter affidavit filed by the 2[nd] respondent is that the proposal for approval of promotion of the petitioner in W.P.(C) No.37868/2010 was submitted with delay of seven months. Since the Assistant Educational Officer has not passed any orders so far, this Court can only direct the Assistant Educational Officer to pass appropriate orders and if aggrieved by the resultant order, the petitioner can take up the matter before the higher authorities concerned.
Hence the challenge against Ext.P5 in W.P.(C) No.36649/
**W.P.(C) Nos.36649 & 37868/2010**
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2010, which is produced as Ext.P4 in W.P.(C) No.37868/2010 fails. The Assistant Educational Officer who is the 2[nd] respondent in W.P.(C) No.37868/2010 will pass appropriate orders in accordance with law with regard to the proposal for approval of appointment of the petitioner Smt.N.Santha as Headmistress in accordance with the rules.
These writ petitions are hence dismissed. No costs.
## **T.R. RAMACHANDRAN NAIR JUDGE**
smp
