IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 6634 of 2008(M) ---------------------------------------- PETITIONERS:: ---------------------- 1. BIJU S., S/O.K.S.ABDUL SAMAD, AGED 36 YEARS, FULL TIME MENEAL, S.V.V. H.S.S., PALEMAD, EDAKKARA, NILAMBUR, MALAPPURAM DISTRICT. 2. MUSTAFA M.T., FULL TIME MENEAL S.V.V. H.S.S., PALEMAD, EDAKKARA, NILAMBUR, MALAPPURAM DISTRICT. BY ADV. SRI.T.S.JOHN SRI.SIJU RAJAN RESPONDENTS: ------------------------- 1. SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, D.P.I. OFFICE, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM DISTRICT. 5. MANAGER, S.V.V. H.S.S., PALEMAD, MALAPPURAM DISTRICT. GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1-4 ADV. SRI.SAIJO HASSAN FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON 06/10/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.6634/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER. EXT.P1(A): COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER. EXT.P1(B): COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER. EXT.P2: COPY OF THE ORDER DTD. 21/02/2003. EXT.P2(A): COPY OF THE ORDER DTD. 21/02/2003. EXT.P2(B): COPY OF THE ORDER DTD. 7/01/2004. EXT.P3: COPY OF THE ORDER DTD. 28/06/2006. EXT.P3(A): COPY OF THE ORDER DTD. 28/06/2006. EXT.P4: COPY OF THE APPEAL. EXT.P4(A): COPY OF THE APPEAL. EXT.P5: COPY OF THE JUDGMENT OF THIS HON'BLE COURT. EXT.P5(A): COPY OF THE JUDGMENT OF THIS HON'BLE COURT. EXT.P6: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD. 7/11/2007. EXT.P6(A): COPY OF THE ORDER OF THE 1ST RESPONDENT. EXT.P7: COPY OF THE ORDER DTD. 28/06/2002. EXT.P8: COPY OF THE ORDER DTD. 1/02/2006. EXT.P9: COPY OF THE RELINQUISHMENT LETTER. EXT.P9(A): COPY OF THE RELINQUISHMENT LETTER. EXT.P10: COPY OF THE ORDER G.O.(P) NO.46/2002/GE DTD.01/02/2006. Kss ..2/- ..2.... WPC.NO.6634/2008M RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE G.O.(MS) NO.104/69/EDN. DTD. 6/03/1969. EXT.R1(B): COPY OF THE G.O.(MS) NO.164/69/EDN. DTD. 17/04/69. EXT.R1(C): COPY OF THE G.O.(MS) NO.175/70/EDN. DTD. 15/04/1970. EXT.R5(A): COPY OF THE ORDER DTD. 01/02/2006. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = W.P.(C) No. 6634 OF 2008 M = = = = = = = = = = = = = = Dated this the 6th day of October 2008 J U D G M E N T The prayer in this writ petition is to quash Exts. P6 and P6(a) orders of the 1st respondent and to direct the 4th respondent to approve the appointment of the 1st petitioner with effect from 20.9.2002 and the 2nd petitioner with effect from 16.9.2002 to 18.4.2003 and from 1.7.2003 as Full Time Menials and pay salary and other emoluments due to them. 2. By Ext.P1 order, the 5th respondent appointed the 1st petitioner as a Full Time Menial with effect from 20.9.2002. The 2nd petitioner was also appointed as Full Time Menial in a leave vacancy for the period 16.9.2002 to 18.4.2003. Subsequently, the 2nd petitioner was appointed against a permanent vacancy with effect from 1.7.2003 as per Ext. P1(b). The proposals for approval were rejected by the D.E.O. as per Exts. P2, P2(a) and P2(b) orders and the appeals made to the Deputy Director, D.P.I., were also rejected and Exts. P3 and P3(a) are the orders of the D.P.I. Exts. P4 W.P.(C) No. 6634 OF 2008 - 2 - and P4(a) revisions filed before the 1st respondent were also rejected by Exts. P6 and P6(a) orders. 3. The main reason, the correctness of which was also canvassed before this Court, mentioned in the aforesaid orders, is that in terms of Exts. P7 and P8 Govt. Orders, the Manager should have appointed protected hands to the vacancies which were filled up by appointing the petitioners. It was contended that in terms of the Govt. Orders, protection provided for is available to teaching staff and not to non-teaching staff and therefore, according to the petitioners, the finding in Exts. P3, P4 and P6 referred to above that the Manager should have appointed protected hands against the vacancy of Full Time Menial is incorrect. 4. The 1st respondent has filed a counter affidavit. According to them, all conditions of protection available to teachers were extended to non-teaching staff also. They are relying on Exts. R1 (a), (b) and (c) orders in this behalf. It is contended that at the time when the vacancies to which the petitioners were appointed, arose there were two protected hands in the category of Full Time Menial in the Malappuram Revenue District, namely, Shri. Mohandas W.P.(C) No. 6634 OF 2008 - 3 - and Shri. K.P. Mohammed. It is stated that as per Chapter III, Rule 9 of KER, the Manager of an aided school is bound to make appointments in established vacancies in accordance with the orders of the educational authorities and that under Chapter V, Rule 6(viii) also the Manager has the liability to accommodate the protected hands. 5. The Manager has filed a counter affidavit supporting the petitioners. The petitioners have filed a reply affidavit contradicting the contentions in the counter affidavit filed by the 1st respondent. As already noticed, the contention raised is that protection available to teaching staff are not available to non-teaching staff. It was also contended that if at all the protected hands are to be accommodated, such accommodation should be in Government schools and therefore the 5th respondent had no obligation to accommodate protected hands. 6. As far as the plea raised that protection is available only to teaching staff, in my view, is a contention which is devoid of any substance. Respondents have produced G.O.(MS) No. 175/70/Edn. dated 15.4.1970 as Ext. R1(c) which proves that the Government W.P.(C) No. 6634 OF 2008 - 4 - have extended the benefit of protection granted to teaching staff in aided schools by Government Orders dated 6.3.1969 and 17.4.1969, to the non-teaching staff in aided schools also. In the light of this Government Order, the genuineness of which is not in dispute, it is not open to the petitioners to contend that protection is not available to non-teaching staff in the aided schools. 7. Now what remains is the question whether such protected hands are to be accommodated in aided schools or in Government schools alone. As is evident from Exts. P7 and P8, managements of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. Therefore, Exts. P7 and P8 Govt. Orders create a liability on the aided school managements to accommodate protected teachers, whose salary will have to be paid by the Government. Ext. R1(c) shows that Government had extended the benefit of protection to non-teaching staff also. If that be so, the 5th respondent could not have appointed the petitioners, when protected hands were available and add to the financial liability of the Government to pay their salaries and at the same time wriggle out of his obligation to W.P.(C) No. 6634 OF 2008 - 5 - appoint protected hands as required of him under Exts. P7 and P8. For these reasons, I do not find anything illegal in the impugned orders. The writ petition is only to be dismissed and I do so. ANTONY DOMINIC JUDGE jan/-