IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 34298 of 2008(G) ----------------------------------------- PETITIONER(S): ------------------------ K.RASAVA MOHAMED, S/O.KHADER MOIDEEN RAWTHER, AGED 80 YEARS, MANAGER, NADUKUNNU HIGH SCHOOL, P.O.PATHANAPURAM, KOLLAM DISTRICT. BY ADVS.MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA REPRESENTED 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, KOLLAM DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR, KOLLAM DISTRICT. 5. SRI.M.FAISON, CLERK, NADUKUNNU HIGH SCHOOL, P.O.PATHANAPURAM, KOLLAM DISTRICT. 6. SMT.P.V.NEETHA, LOWER GRADE HINDI TEACHER (RELIEVED), NADUKUNNU HIGH SCHOOL (RESIDING AT MUKULUVILA HOUSE, P.O.KURUMPAKARA, PATHANAPURAM 689 695. R1 TO R4 BYSR. GOVT. PLEADER SMT.T.B.REMANI R6 BY ADV. MR.P.K.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, ALONG WITH WPC NO. 1695 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34298/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.B4/2219/07 OF THE DIST. EDUCATIONAL OFFICER DTD. 1.10.07. P2:- COPY OF THE ORDER NO.B6-22115/07/K.DIS. OF THE DEPUTY DIRECTOR OF EDUCATION DTD. 12.2.08. P3:- COPY OF THE ORDER NO.ET1/20333/08/DPI/K. DIS. OF THE 2ND RESPONDENT DTD. 15.7.08. P4:- COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DTD. 26.7.08. P5:- COPY OF THE ORDER NO.62799/N2/08/G.EDN. OF THE GOVERNMENT DTD. 25.10.08. P6:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. 27511/07. DTD. 17.9.07. P7:- COPY OF THE DECISION REPORTED IN 2001(2) K.L.T. 273. DTD. 11.4.01. P8:- COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION DTD. 4.3.09. P9:- COPY OF THE ORDER NO.A1/10-78/09 OF THE DISTRICT EDUCATIONAL OFFICER DTD. 23.3.09. P10:- COPY OF THE CIRCULAR NO.74101/J2/04/G.EDN. DTD. 24.1.05. P11:- COPY OF THE JUDGMENT IN WPC. 2563/08 DTD. 24.9.08. P12:- COPY OF THE JUDGMENT IN WPC. 8039/08 DTD. 1.6.09. P13:- COPY OF THE DECISION REPORTED IN 2009 (2) KLJ 402 DTD. 1.4.09. RESPONDENT'S EXHIBITS :- NIL TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 34298 of 2008-G & 1695 of 2009-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2009. JUDGMENT W.P.(C) No.34298/2008 is filed by the manager of the school and the other writ petition is filed by the appointee who is awaiting approval as a clerk in he school. 2. The vacancy in the post of Clerk arose when the permanent clerk of the school expired on 8.1.2006. Since the Full Time Menial Smt. Beegum Jhahannuar reinquished her claim for promotion, the manager appointed the petitioner in W.P.(C) No.1695/2009 as Clerk with effect from 2.4.2007. 3. By Ext.P1, the approval was declined stating that at present there is no protected teacher/employee in the school and the post should be filled up by a protected hand. The petitioner filed an appeal against the same which was disposed of by Ext.P2. The revision petition filed against Ext.P2 was also rejected by Ext.P3 stating that the post should be filled up by a protected teacher. Even though the manager has filed a revision as per Ext.P4, that was also dismissed by Ext.P5. wpc 34298/08 & 1695/2009 2 4. Heard learned counsel for the petitioners, the learned Govt. Pleader, and learned counsel appearing for the other respondents. It is pointed out by the learned counsel appearing for the Manager that the 6th respondent herein was a Lower Grade Hindi Teacher who is a Rule 51A claimant and she cannot claim the post of non-teaching staff. It is further submitted that the said issue is covered in the light of Ext.P6 judgment. The case of the Manager is that at the time when the vacancy was filled up, no list of protected teachers were available in the concerned educational district or no Rule 51-A claimant qualified for the post of Clerk awaiting appointment in the school. It is also contended that the only clerk eligible for protection was absorbed in another school. 5. Learned counsel for the Manager relied upon Ext.P11 judgment in W.P.(C) No.2563/2008 as well as Ext.P12 judgment in W.P.(C) No.8039/2008 and the decision in Anilkumar R. v. State of Kerala (2009 (2) KLJ 402). It is therefore contended that the appointment made by the Manger is liable to be approved. 6. In the counter affidavit filed on behalf of the respondents, in paragraphs 9 and 10, the stand taken is that protected hands are available in the district. wpc 34298/08 & 1695/2009 3 7. Learned counsel for the Manager submitted that there is no protected teacher available in Punalur Education District. Reliance is placed on Ext.P9 communication dated 23.3.2009 from the Public Information Officer of the District Educational Officer, Punalur stating that in Punalur Education District, protected hands are not in existence. 8. Since there arose a dispute regarding the issue, learned Govt. Pleader was directed to get instructions as to whether any protected clerk is available in the district. After getting instructions, learned Govt. Pleader submitted that only a Full Time Menial is available in Punalur Education District. 9. It is pointed out by the learned counsel for the petitioner that the persons whose details are pointed out in the counter affidavit are in Kottarakkara Education District. In the light of the above, the question is whether the appointment is liable to be approved. In Ext.P11 judgment, it was held that if the list of protected hands has not been made available as required, the Manager cannot be faulted for not appointing the protected hands. Accordingly, a direction was issued to approve the appointment. The same position is reiterated in Exts.P12 and P13 judgments also. 10. From the facts of the case, it is evident that no protected clerk wpc 34298/08 & 1695/2009 4 was available in the Punalur Education District at the relevant time. In the light of the above position, the rejection of the application for approval cannot be justified. Therefore, Exts.P1, P2, P3 and P5 in W.P.(C) No.34298/2008 are quashed. There will be a direction to the District Educational Officer, Punalur to grant approval of appointment of the 5th respondent in W.P.(C) No.34298/2008. Appropriate orders shall be passed within a period of one month from the date of receipt of a copy of this judgment. It is submitted by the learned counsel for the Manager that the obligation to appoint a protected hand will be complied with in any future vacancy. The writ petitions are disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/