IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 24045 of 2009(A) ------------------------------------ PETITIONER(S): --------------------- GEENA JOSEPH, AGED 37 YEARS, W/O. BIJU JAMES, HIGH SCHOOL ASISTANT(PHYSICAL SCIENCE) C.C.P.L.M A.I.H.SCHOOL PERUMBAVOOR, ERNAKULAM 682015. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA REP. 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 CIVIL STATION, KAKKANAD, ERNAKULAM DIST. 4. THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM. 5. THE CORPORATE MANAGER, CENTRAL BOARD OF ANGLO INDIAN EDUCATION PERUMANOOR, ERNAKULAM-682015. BY GOVERNMENT PLEADER SMT. NISHA BOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 24045 of 2009(A) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE ORDER NO.B6/5450/2005/K.DIS.OF THE DISTRICT EDUCATIONAL OFFICER. P2 : COPY OF THE ORDER NO.B2-25347/06/K.DIS. OF THE DEPUTY DIRECTOR OF EDUCATION. P3 : COPY OF THE ORDER NO.EM(4)/17876/08/DPI/D.DIS. OF THE SECOND RESPONDENT. P4 : COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER. P5 : COPY OF THE ORDER NO.29717/A2/2009/G.EDN. OF THE GOVERNMENT. P6 : COPY OF THE G.O.(P)NO.178/2002/G.EDN. OF - DO- P7 : COPY OF THE CIRCULAR NO.74101/J2/2001/G.EDN. OF -DO- P8 : COPY OF THE G.O(Rt.) NO.3776/2006/G.EDN. OF THE GOVERNMENT. P9 : COPY OF THE ORDER NO.EM6/53385/2007/DPI/K.DIS. OF THE 2ND RESPONDENT. P10 : COPY OF THE ORDER NO.EM(6)/109313/04/DPI/K.DIS. OF THE 2ND RESPONDENT. P11 : COPY OF THE ORDER NO.EM6/53315/07/DPI/K.DIS. OF THE 2ND RESPONDENT. P12 : COPY OF THE ORDER NO.EM6/109311/06/DPI/D.DIS. OF THE 2ND RESPONDENT. P13 : COPY OF THE ORDER NO.EM(6)/13136/(8)/08/DPI/K.DIS. OF THE 2ND RESPONDENT. P14 : COPY OF THE G.O.(RT.) NO.3587/2008/G.EDN. OF THE GOVERNMENT. P15 : COPY OF THE ORDER NO.F3/75090/08/K.DIS. OF THE 2ND RESPONDENT. P16 : COPY OF THE ORDER NO.F3/67649/2008/K.DIS. OF -DO- P17 : COPY OF THE G.O.(RT.) NO.3805/06/G.EDN. OF THE GOVERNMENT. P18 : COPY OF THE G.O.(RT.) NO.3155/2007/G.EDN. OF -DO- P19 : COPY OF THE DECISION REPORTED IN 1993 (2) K.L.T. SHORT NOTES PAGE 27C. NO.28. ..2 -2- P20 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT W.P.C. NO.2563/08. P21 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.C. NO.8039/08. P22 : COPY OF THE JUDGMENT IN W.P.C. NO.18986/2009-P. P23 : COPY OF THE JUDGMENT IN W.P.C. NO.8553 OF 2009-L. P24 : COPY OF THE JUDGMENT IN W.P.C. NO.2860 OF 2009-M. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// STU P.A TO JUDGE. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.24045 of 2009-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2011. JUDGMENT The petitioner seeks approval of her appointment from 1.6.2005 as H.S.A. (Physical Science) in the school managed by the fifth respondent. 2. Initially, the view taken by the District Educational Officer is that there is no protected teacher on the rolls of the school, viz. C.C.P.L.M.A.I.H. School, Perumanoor. The appeal filed by the Manager was also rejected. In the meantime, a protected teacher was appointed on 25.6.2008. In the appeal filed before the Director of Public Instruction, by Ext.P3 order a direction was issued to approve the appointment with effect from 25.6.2008 and Ext.P4 is the order granting approval as above. The further revision filed before the Government seeking approval from 1.6.2005, was rejected by Ext.P5. 3. Learned counsel for the petitioner submitted that no list of protected teachers was communicated to the Manager, as provided under G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 and subsequent orders. The said Government Order and a later circular have been produced as Exts.P7 and P8. The petitioner has produced Exts.P9 to P13 which are orders wpc 24045/2009 2 approving the appointment of similar teachers in respect of another school, wherein, according to the petitioner, the appointments have been approved from the dates of appointment itself, after noticing that a protected teacher has been appointed. Certain orders in respect of similar other schools, have been produced as Exts.P14 to P16. Reliance is placed on various judgments of this Court also. 4. In the counter affidavit filed by the first respondent, it is explained that the Manager was bound to appoint a protected hand, as the school is a new one. Reliance is placed on G.O.(P) No.178/2002/G.Edn. dated 28.6.2002. 5. Herein, it can be seen that there is no plea by the respondents that as on the date of appointment of the petitioner, a protected hand was available and the list of protected teachers was communicated to the Manager for approval. Therefore, the question is whether there is any failure on the part of the Manager to comply with the obligation. Ext.P22 is a judgment wherein this Court, after referring to G.O.(P) No.178/2002/G.Edn. dated 28.6.2002, found that as the list of protected teachers has not been communicated, it cannot be said that there is any failure on the part of the Manager to appoint a protected hand. Accordingly, a direction was issued to approve the appointment from the date of wpc 24045/2009 3 appointment itself. Exts.P23 and P24 judgments also concern a similar issue. Apart from the same, a recent judgment of this Court in Nadeera T.S. and another v. State of Kerala and others (2011 (3) KHC 650) elaborately considered various aspects including the question whether the approval could be postponed till a protected hand becomes available and is appointed by the Manager, after the date of appointment of the teacher concerned. Therein also, initially the approval of appointment was not granted and finally it was approved with effect from 1.6.2010, the date of appointment of the protected teacher. This Court considered the various Government Orders and the relevant provisions under the Kerala Education Rules. The various judgments of this Court laying down that the obligation of the department to communicate the list of protected teachers, has got a bearing in the matter, were also considered. The Government Orders, viz. G.O.(P) Nos.178/2002/G/Edn. dated 28.6.2002 and G.O.(P) No.46/06/G.Edn. dated 1.2.2006 and the provisions therein were examined from para 8 onwards. Finally, it was held in paragraphs 14 to 17 as follows: “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 wpc 24045/2009 4 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-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. wpc 24045/2009 5 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. 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 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 wpc 24045/2009 6 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.” 6. This court has noticed therein a later Government Order, viz. G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarified the G.O.(P) No.46/2006/G.Edn. dated 1.2.2006. Only by the said Government Order alone a restriction was made with regard to the approval of appointment till the protected teacher was appointed. Thus, it was held that the Manager cannot be compelled to postpone the appointment of qualified teachers even after the post is sanctioned by the staff fixation order, till a protected hand is made available. It was noticed that even though the Manager has got an obligation to appoint a protected teacher, the time factor has not been mentioned in any of the Government Orders and in many cases the availability of protected hands may be delayed and the deployment also may take much time. It was therefore held that the postponement of approval of qualified teachers in such cases, will be against the scheme of the Act and the Rules. It was then noticed in para 19 of the judgment that the Manager has already appointed a protected hand in terms of Rule 6(viii) of Chapter V of K.E.R. and finally it was held as follows: wpc 24045/2009 7 “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.” These principles squarely applies herein on the facts of this case. For all these reasons, the petitioner is entitled to succeed in this writ petition. Therefore, the writ petition is allowed. It is declared that the petitioner is entitled to be granted approval from 1.6.2005. The impugned orders, viz. Exts.P1 to P5 to the extent they deny approval of appointment from 1.6.2005, are quashed. There will be a direction to the respondents to pass appropriate orders granting approval from 1.6.2005, within a period of two months from the date of receipt of a copy of this judgment. The consequential monetary benefits also will be disbursed to the petitioner. No costs. (T.R. Ramachandran Nair, Judge.) kav/