WP(C).No. 25367 of 2009 (M)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 24TH DAY OF NOVEMBER 2014/3RD AGRAHAYANA, 1936** ## **WP(C).No. 25367 of 2009 (M)** ## **----------------------------** ## **PETITIONER(S):** **-----------------------** **1. ANU.S.R, ESSAR, ADICHANALLOOR PO, KOLLAM, WORKING AS H.S.A(PHYSICAL SCIENCE), ABDULLA KUNJU MEMORIAL H.S.S, MYLAPORE, KOLLAM.** **2. ASHA.K, RAVI BHAVANAM, KANNIMEL.B, KILIKOLLOOR P. , KOLLAM, H.S.A(MATHAMATICS), ABDULLA KUNJU MEMORIAL H.S.S, MYLAPORE, KOLLAM.** ## **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENT(S): --------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. DEPUTY DIRECTOR OF EDUCATION, KOLLAM.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM.** **5. THE MANAGER, ABDULLA KUNJU MEMORIAL H.S.S, MYLAPORE, UMAYANALLOR P.O, KOLLAM.** **R1 TO R4 BY SENIOR GOVT. PLEADER SRI.RAMAPRASAD UNNI R5 BY ADVS. SMT.S.KARTHIKA** **SRI.M.S.UNNIKRISHNAN** **SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 25367 of 2009 (M)** ## **---------------------------------------** ## **APPEN** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 : TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER.** - **EXHIBIT P2 : TRUE COPY OF THE ORDER ISSUED BY THE D..E.O., KOLLAM TO THE 2ND PETITIONER.** - **EXHIBIT P3 : TRUE COPY OF THE ORDER ISSUED BY THE D.E.O., KOLLAM REJECTING THE APPROVAL OF THE APPOINTMENT OF THE** - **1ST PETITIONER.** - **EXHIBIT P4 : TRUE COPY OF THE ORDER ISSUED BY THE D.E.O., KOLLAM REJECTING THE APPROVAL OF THE APPOINTMENT OF THE 2ND PETITIONER.** - **EXHIBIT P5 : TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR DATED 27.4.2006.** - **EXHIBIT P6 : TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE D.E.O. FOR THE ACADEMIC YEAR 2007-08.** - **EXHIBIT P7 : TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE D.E.O. FOR THE ACADEMIC YEAR 2008-09.** - **EXHIBIT P8 : TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.11/02/G.EDN. DATED 7.1.2002.** - **EXHIBIT P9 : TRUE COPY OF THE ORDER ISSUED BY DPI.** **EXHIBIT P10 : TRUE COPY OF THE REVISION FILED BY THE PETITIONERS.** - **EXHIBIT P11 : TRUE COPY OF ORDER DATED 29.5.2009 PASSED BY THE GOVERNMENT.** - **EXHIBIT P12 : TRUE COPY OF THE COMMUNICATION ISSUED BY THE GOVERNMENT TO THE DISTRICT EDUCATIONAL OFFICER, KOLLAM DATED 9.9.2009.** - **EXHIBIT P13 : TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, 5.7.2011.** - **EXHIBIT P12 : TRUE COPY OF LETTER DATED 9.9.2009.(IA.7415/2010)** - **EXHIBIT P13 : TRUE COPY OF LETTER DATED 29.1.2010.(IA.7415/2010)** **/TRUE COPY/** **P.A. TO JUDGE** **mbr/** ## **P.B.SURESH KUMAR, J. ----------------------------------------------W.P.(C).No. 25367 of 2009 ----------------------------------------------Dated this the 24[th] day of November, 2014** ## **J U D G M E N T** The first petitioner was appointed as High School Assistant (Physical Science) in Abdulla Kunju Memorial Higher Secondary School on 5.6.2006 as per Ext.P1 order. The second petitioner was appointed in the said school as High School Assistant (Mathematics) on 30.01.2006 as per Ext.P2 order. The appointments of the petitioners as per Exts.P1 and P2 orders were not approved. Ext.P3 and P4 are the orders issued by the fourth respondent, declining approval of the appointments of the petitioners. The reason stated in the said orders for declining approval of the appointments of the petitioners is that the Manager of the school has not appointed any protected teacher as directed by the Government. In addition, in Ext.P4 order, it is also stated that the approval of the appointment of one Sreerekha as High School Assistant in the school was also **W.P(C) No. 25367 of 2009** 2 declined earlier for the very same reason. Exts.P3 and P4 orders have been confirmed by the appellate and revisional authorities. Thereupon, the matter was taken up by the Manager before the Government. 2. In the meanwhile, the staff fixation orders of the school for the year 2007-2008 and 2008-2009 were issued by the Department. Ext.P6 is the staff fixation order of the school for the year 2007-2008 and Ext.P7 is the staff fixation order of the school for the year 2008-2009. As per Ext.P6, the number of divisions sanctioned for the school was reduced from 16 to 13 for the year 2007-2008 and the same strength of the divisions was maintained for the year 20082009 also. Consequently, as per the staff fixation orders, the District Educational Officer has directed that two teachers who were found excess by virtue the staff fixation orders namely Pradeep Kumar and Seminsha have to be adjusted against the vacancies to which the petitioners were appointed. Accordingly, the said teachers were accommodated in the vacancies to which the petitioners **W.P(C) No. 25367 of 2009** 3 were appointed. As the said staff fixation orders are likely to affect the right of the petitioners to get their appointments approved with effect from the respective dates of their appointments, petitioners have challenged Exts.P6 and P7 orders before the Deputy Director of Education. 3. While so, as per Ext.P5 order, the order declining approval of the appointment of Sreerekha referred to in Ext.P4 order was set aside by the Deputy Director of Education, holding that no protected teacher was available in the revenue district and therefore, the appointment of the said teacher should have been approved by the Educational Officer. As the very ground on which the appointments of the petitioners were declined to be approved was found to be unsustainable in the case of a similarly situated person, the petitioners filed W.P.(C) Nos.37711 of 2008 and 37753 of 2008 before this Court complaining of the delay in the disposal of the revisions filed by the Manager before the Government against the orders declining approval of their appointments. The fact that **W.P(C) No. 25367 of 2009** 4 Ext.P6 and P7 staff fixation orders are under challenge before the Deputy Director of Education was also brought to the notice of this Court. This Court, having taken note of the fact that the reason stated for declining approval of the appointments of the petitioners does not exist, directed that the revisions filed by the Manager shall be considered by the Government. This Court also held that the appropriate authority to challenge Exts.P6 and P7 orders was the Director of Public Instruction and permitted the petitioners to challenge Exts.P6 and P7 orders before the Director of Public Instruction. Pursuant to the judgment in W.P.(C) No.37711 of 2008 and 37753 of 2008, the petitioners have preferred a revision petition before the Director of Public Instruction, against Exts.P6 and P7 orders. The said revision petition was, however, rejected by the Director of Public Instruction as per Ext.P9 order. Ext.P9 order was, therefore, challenged by the petitioners before the Government in Ext.P10 revision petition and the same is pending. 4. In the meanwhile, in compliance of the directions **W.P(C) No. 25367 of 2009** 5 issued by this Court in W.P.(C) Nos.37711 of 2008 and 37753 of 2008, the Government took up the revisions filed by the Manager against the orders declining approval of the appointments of the petitioners and disposed of the same as per Ext.P11 order directing that the appointments of the petitioners shall be approved with effect from 1.6.2008. In Ext.P11 order, though the Government found that the Manager has complied with the directions issued by the Government concerning the appointment of protected teachers, the appointments were directed to be approved only with effect from 1.6.2008. Ext.P11 order of the Government, to the extent it declines approval of appointments of the petitioners with effect from the respective dates of their appointments, is under challenge in this writ petition. 5. It is not disputed that as directed by the Government in Ext.P11 order, the appointments of the petitioners were approved with effect from 1.6.2008. The subsisting grievance of the petitioners is only that their **W.P(C) No. 25367 of 2009** 6 appointments were not approved with effect from the respective dates of their appointments. According to the petitioners, in so far as they were appointed on 5.6.2006 and 30.1.2006 respectively and in so far as they were working in the school from the said dates, they are entitled to get their appointments approved with effect from the respective dates of their appointments. 6. A reading of Ext.P11 order would indicate that it is in view of the adjustments ordered as per Exts.P6 and P7 staff fixation orders in the vacancies to which petitioners were appointed, the Government had directed that the appointments of the petitioners need be approved only from 1.6.2008. In so far as the petitioners have challenged Exts.P6 and P7 staff fixation orders before the Government in Ext.P10 revision petition, I am of the view that the entitlements, if any, of the petitioners to get their appointments approved with effect from the respective dates of their appointments, is a matter to be considered by the Government while considering Ext.P10 revision petition. **W.P(C) No. 25367 of 2009** 7 7. The learned counsel for the petitioners, relying on the decision of the Apex Court in **Deepa Augustine v. Geetha Alex** [2008(2) KLT 771], contended that the adjustments of the teachers made as per Exts.P6 and P7 orders do not satisfy the subject requirements and therefore, illegal. He has also pointed out that in so far as the petitioners were appointed in the academic year 2006-2007 and in so far as the existence of the vacancies in the year 2006-2007 is not disputed, there is no reason why their appointments shall not be approved with effect from the respective dates of their appointments. These are matters to be considered by the Government while deciding Ext.P10 revision petition. In the circumstances, the writ petition is disposed of directing the Government to take up Ext.P10 revision petition filed by the petitioners against Ext.P9 order of the Director of Public Instruction and take a final decision on the same, after affording the petitioners and all affected persons an opportunity of hearing, within three months from the **W.P(C) No. 25367 of 2009** 8 date of receipt of a copy of this judgment. While considering Ext.P10 revision, the Government should decide the entitlement of the petitioners to get their appointments approved with effect from their respective dates of appointments also. If it is found that the petitioners were entitled to get their appointments approved with effect from their respective dates of appointments, appropriate directions shall be issued to the District Educational Officer concerned to revise the approval of the appointments made accordingly. ## **Sd/P.B.SURESH KUMAR, JUDGE** smv //true copy// P.A to Judge The date “1.6.2008” occurring in line 3 of paragraph 5 of the judgment dated 24.11.2014 in W.P.(C) No.25367/2009 is corrected and substituted as “01.06.2009”, vide order dated 07.04.2015 in R.P. 296/2015. Sd/Registrar (Judicial)