IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WP(C).No. 28577 of 2008(B) -------------------------- PETITIONER: --------------- T.S.NADEERA, AGED 28 YEARS, W/O SAJEEV, HIGH SCHOOL ASSISTANT (MATHS), LAJANATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL, ALAPPUZHA DISTRICT – 1. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA DISTRICT. 5. THE MANAGER, LAJANATHUL MUHAMMADIYAHIGHER SECONDARY SCHOOL, ALAPPUZHA DISTRICT - 1. BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA FOR R1 TO 4 SRI.ESM.KABEER FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011, ALONG WITH WPC NO. 29086 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.28577/08 PETITIONER'S EXTS: EXT.P1 : COPY OF THE ORDER NO.B2/8484/05/L.DIS. OF THE DIST.EDL.OFFICER DT.2.5.06. EXT.P2 COPY OF THE ORDER NO.B2/9274/06/K.DIS. OF THE DY.DIRECTOR OF EDN. DT.15.11.06. EXT.P3 COPY OF THE ORDER NO.ET2/81762/2006/DPI/D.DIS. OF THE DIRECTOR DT.23.4.07. EXT.P4 COPY OF THE ORDER NO.39941/A3/07/GE OF THE GOVERNMENT. EXT.P5 COPY OF THE DECLARATION OF THE MANAGER DT.15.12.07. EXT.P6 : COPY OF THE GO(RT)NO.3805/06/G.EDN. OF THE GOVERNMENT DT.26.8.06. EXT.P7 : COPY OF THE GO(RT)NO.3776/06/G.EDN. OF THE GOVERNMENT DT.24.8.06. EXT.P8 : COPY OF THE JUDGMENT OF THIS COURT IN OP.NO.5258/03-A. DT.10.11.06. EXT.P9 : COPY OF THE DECISION REPORTED IN 1993(2) KLT SHORT NOTES P.27.C.28. DT.2.8.93. EXT.P10: COPY OF THE GO(P)NO.178/02/G.EDN. OF THE GOVERNMENT DT.28.6.02.. EXT.P11: COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN. OF THE GOVERNMENT DT.24.1.2005.. EXT.P12: COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C)No.2563/08-E DT.24.9.08. EXT.P13: COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C)No.8093/08-F. DT.1.6.09. EXT.P14: COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C)No.18986/09-P. EXT.P15: COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C)No.8553/09-L. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)Nos.28577/08-B & 29086/08-K -------------------------------------------------- DATED THIS THE 4th DAY OF AUGUST, 2011 J U D G M E N T In W.P.(C)No.28577/08, the petitioner who was appointed as HSA(Mathematics) in the school managed by the 5th respondent is seeking for a direction to approve her appointment from the date of appointment itself. She was appointed as HSA (Mathematics) from 18.11.2005. The petitioner in W.P.(C) No.29086/08 is seeking the very same relief, who is working as HSA(Natural Science), in the very same school managed by the 5th respondent. She was appointed from 29.7.2005. Very same grounds are taken to reject the approval of appointment of both the petitioners. 2. During the pendency of the Writ Petitions, the appointments of both the petitioners were approved with effect from 1.6.2010. Therefore, what remains now is the consideration of the prayer to approve the appointments of the petitioners from the date of appointment itself. W.P.(C)Nos.28577/08-B & 29086/08-K -2- 3. The consistent stand taken in the impugned orders is that being a newly opened school, vacancies should be filled up by protected hands and that Manager has not appointed a protected hand. 4. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel appearing for the Manager. 5. That the petitioners were qualified and there were regular vacancies is not disputed. In the order passed by the Government as Exhibit P4 produced in W.P.(C)No.28577/08, one of the points raised is that as per G.O.(P)No.46/2006/G.Edn. dated 1.2.2006 in those schools started or upgraded during the period 1979-90, the Manager should appoint at least one protected teacher in the school. But no protected teachers were working in the school at the time of appointment of the petitioner. The date 1.6.2010 now chosen for granting approval is the date on which a protected hand was appointed. 6. Therefore, the question is whether once the Manager has appointed a protected hand in terms of Rule 6(viii) of Chapter W.P.(C)Nos.28577/08-B & 29086/08-K -3- V KER and the Government Orders emphasising the obligation of the Manager in that regard, the approval can be postponed till the date on which the protected hand is appointed. 7. The learned counsel for the petitioner invited my attention to Exhibit P10 Government Order, Exhibit P11 Circular and judgments of this Court in Exhibits P12 to P15 as well as Exhibit P7 produced in W.P.(C)No.28577/08 to contend for the position that after Exhibit P10 Government Order was issued, the Department had an obligation to communicate the list of protected teachers to the Manager and in the absence of the same, the Manager cannot be found fault with for non- appointment and consequently, the appointment of the teacher cannot be objected for that reason and there cannot be refusal to approve the appointment. 8. The obligation of the Manager to appoint a protected teacher is obviously one arising under Rule 6(viii) of Chapter V KER. Herein the school was established in 1982 and the obligation is in respect of schools started from the year 1979. After the scheme of appointment of protected hands was W.P.(C)Nos.28577/08-B & 29086/08-K -4- adopted, there were different Government Orders insisting for appointment of protected teachers as well as relaxing the said conditions during different academic years. At a time when the number of protected hands came down, the Government issued G.O.(MS)No.123/91/G.Edn. dated 5.8.1991 relaxing the conditions. Therein the Managers were permitted to make fresh appointments in the posts of LPSA, UPSA and HSA(Core Subjects). It was also provided therein that the condition regarding execution of agreement in stamp paper will not be insisted so far as the approval of appointments of fresh hands in categories of LPSA, UPSA and HSA(Core Subjects)are concerned. Later even though another Government Order G.O.(MS) No.347/98/G.Edn. dated 1.9.1998 was issued after noticing that the number protected teachers has increased, the same was kept in abeyance by issuing G.O.(Rt)No.585/99/G.Edn. dated 4.2.1999. Therefore the learned counsel for the petitioner points out that such relaxation was made by the Government itself and appointment of teachers including HSAs(Core Subjects) were being approved from time to time, in this school also. W.P.(C)Nos.28577/08-B & 29086/08-K -5- 9. The provisions of the Government Order, namely Exhibit P10 actually insisted filling up of all the vacancies by protected hands. Going by paragraph No.1 therein, such a direction was issued and it was further directed that the Deputy Directors of Education concerned shall make available district- wise and category-wise list of protected teachers on the basis of the total length of service to be appointed to the Managers. The condition provided therein is incorporated in Exhibit P11 circular also wherein under paragraph No.(ii) it is stated that the list of teachers eligible for protection under each district/educational district in the staff fixation will be sent to the Deputy Directors by the AEOs/DEOs concerned before the 1st July of every year. It is mentioned in paragraph No.(iii) that the list so furnished by the Educational Officers should be sent by the Deputy Directors to the concerned Managers by Registered post within one week of its receipt. Exhibit P7 is the copy of Government Order dated 24.8.2006. After noticing various aspects, a direction was issued to see that the conditions in G.O.(P)No.178/2002/G.Edn. dated 28.6.2002 and G.O.(P)No.46/2006/G.Edn. dated 1.2.2006 are W.P.(C)Nos.28577/08-B & 29086/08-K -6- implemented strictly. In paragraph No.2(ii) it was specified that the Educational Officers will include the names of protected teachers to be appointed by the Managers in arising vacancies in the staff fixation order itself. 10. The provisions of these Government Orders were considered by this Court in various judgments relied upon by the learned counsel for the petitioner. In Exhibit P12 judgment, after noticing the stipulation in Exhibit P10 Government Order that the list of protected teachers should be communicated, it was held 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.” The appointment of the petitioner was directed to be approved. 11. In Exhibit P13 judgment also it was held as follows: “Therefore the obligation of the Manager is mainly to appoint one protected teacher in the school. Going by the circulars issued by the Director of Public Instruction, the Deputy W.P.(C)Nos.28577/08-B & 29086/08-K -7- Director of Education has to forward a list of protected teachers to the Manager for making appointment. “ It was held that the appointment is liable to be approved. 12. In Exhibit P14 judgment, the provisions of Exhibit P10 Government Order were considered in detail and it was held as follows: “On the terms of the above Government Order, it is evident that it applies only to the appointment of teachers. ......... ......... ..... . The Manager of an aided school in a district (Malappuram District) cannot have personal knowledge of all protected hands in that district or education sub districts who are required to be absorbed in terms of Rule 6(viii) of Chapter V of the Kerala Education Rules. Necessarily therefore such information should be made available to the Managers of newly opened schools by the concerned District Educational Officers.” Therein also appointments were directed to be approved. Exhibit P15 judgment also concerns the same issue. 13. The learned Government Pleader submitted that unless and until a protected hand is absorbed, the appointment is not liable to be approved and in this case as on the date of W.P.(C)Nos.28577/08-B & 29086/08-K -8- appointment of the protected hand, the approval was granted. It is pointed out that such a position is clear from G.O.(P) No.46/06/G.Edn. dated 1.2.2006. 14. Actually, the said Government Order was issued relaxing the conditions in G.O.No.178/2002/G.Edn. Dated 28.6.2002 wherein all the vacancies were directed to be filled up by protected hands. Paragraph No.(i) of G.O.(P)No.46/06/G.Edn. dated 1.2.2006 reads as follows: “In such schools at least one teacher should be appointed from the list of protected hands.” As direction No.(iii), the approval of appointment of 402 teachers were also ordered by the Government. It is also mentioned that if in any case a protected hand is not available, the vacancy will have to be filled up only on daily wage basis. 15. I find nothing therein which prevents approval of appointment or which postpones the approval till a protected hand is appointed by the Manager. The said Government Order restate the obligation of the Manager to appoint a protected hand. But the time factor is not mentioned therein. In many cases, availability of protected hands may be delayed and non- W.P.(C)Nos.28577/08-B & 29086/08-K -9- availability of protected hands in certain posts may be there. Therefore, to compel a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by the staff fixation order will go against the scheme of the Act and Rules itself. When the staff fixation order permits appointment of required number of staff, the Manager will have to make the appointment in existing vacancies and exercise of the power of the Manager in such cases cannot be said to be against the scheme of the Act. In fact the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Manager, M.M.H.S. V Deputy Director( 1994(1) KLT 321) taking the view that actually it is the duty of the Manager to fill up all the posts in accordance with the orders of the educational authorities fixing the staff strength. 16. Therefore, it can be see that when the Manager exercised his power to make appointment in terms of staff fixation order of a qualified teacher, the postponement of the approval on the plea that the same can be done only from the date of appointment of the protected hand may not be justified. W.P.(C)Nos.28577/08-B & 29086/08-K -10- In this context a later Government Order of the year 2009 is also worth-mentioning. The same is G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarifies G.O.No.46/06 /G.Edn. dated 1.2.2006. It is insisted therein that in the schools which have opened between 1979 and 1990 or which have been upgraded, if for any reason a protected hand is not appointed, then at least one protected teacher may be appointed in any of the existing/arising vacancies and the appointments otherwise made shall not be approved. It is further clarified therein that if any appointments have been made in any of the schools like wise, approval can be effected from the date of appointment of a protected hand. 17. This also confirms the view that at least till the said Government Order was issued on 19.11.2009, there was no restriction to grant approval on the plea that such approval will be granted only from the date of appointment of a protected hand. In fact, going by Rule 7 of Chapter XIV-A of KER, “as soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on W.P.(C)Nos.28577/08-B & 29086/08-K -11- which the teacher is admitted to duty, provided the appointment is duly approved.” As far as grant approval is concerned, normally, it should conform to the existence of vacancy and the sanction of post as per the staff fixation order and the eligibility of the teacher for appointment by fulfilling the qualification. Once these conditions are satisfied, unless there is any other legal bar for granting approval, there cannot be a refusal to grant approval normally. 18. The learned Government Pleader relied upon Rule 1 of Chapter XIV-A KER in this context to submit that all the rules contained therein will have to be followed while filling up the vacancy, which includes the scheme for providing a protected hand. The plea advanced by the learned Government Pleader is that going by the same, “whenever vacancy occurs, the Manager shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand (and for filling up vacancy).” Actually, the same indicates the provisions for filling up the vacancies in terms of the Rules and orders fixing qualification, age, etc. and not a situation like this, which is W.P.(C)Nos.28577/08-B & 29086/08-K -12- evident from the opening sentence therein that “Managers of private schools shall appoint only candidates who possess the prescribed qualification”. 19. Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of Rule 6(viii) of Chapter V of KER. There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009 was issued which can only be prospective. Evidently there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be postponed. 20. It is in that context that the procedure for communicating the list of protected teachers forwarded under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents W.P.(C)Nos.28577/08-B & 29086/08-K -13- that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are entitled to succeed in the Writ Petition. The Writ Petitions are allowed. The impugned orders Exhibits P1 to P4 produced in both the Writ Petitions are quashed. W.P.(C)Nos.28577/08-B & 29086/08-K -14- There will be a direction to the District Educational Officer to approve the appointment of the petitioner in W.P.(C) No.28577/08 with effect from 18.11.2005 and the petitioner in W.P.(C)No.29086/08 with effect from 29.7.2005.. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. The petitioners will be entitled for grant of all consequential benefits. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn