IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 31165 of 2008(I) PETITIONERS: --------------- 1. JACOB P.ABRAHAM, HSA (HINDI),HS ARKANNOOR KOTTARAKKARA, KOLLAM DISTRICT. 2. RAMESH.G, FT MENIAL, HS ARKANNOOR, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. THE DEO, KOTTARAKKARA. 5. THE MANAGER,HS ARKANNOOR,KOTTARAKKARA, KOLLAM DISTRICT. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER NO.B5/4983/05/K.DIS. DATED 2.11.2005. EXT.P2 TRUE COPY OF THE ORDER NO.B5/5696/05/K.DIS. DATED 2.6.2006. EXT.P3 TRUE COPY OF THE ORDER NO.B4/3068/06/K.DIS. DATED 27.4.2006. EXT.P4 TRUE COPY OF THE ORDER NO.B4/16640/06/K.DIS. DATED 6.11.2006. EXT.P5 TRUE COPY OF THE ORDER NO.ETI/49112/2007/DPI/D.DIS DATED 24.11.2007. EXT.P6 TRUE COPY OF THE COMMUNICATION NO.A2/21582/06 DATED 19.1.2007. EXT.P7 TRUE COPY OF THE COMMUNICATION BNO.AS/21582/06 DATED 19.1.2007. EXT.P8 TRUE COPY OF THE G.O.(Rt)NO.2203/08/G.EDN. DATED 16.5.2008. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 31165 OF 2008 ------------------------------------------------------ Dated this the 30th day of June, 2010 JUDGMENT The first petitioner was appointed as High School Assistant (Hindi) in High School, Arkannoor, Kottarakkara. He joined duty on 30.6.2005. The second petitioner was appointed as Full Time Menial in the same school and he joined duty on 18.7.2005. 2. As per Exts.P1 and P2 proceedings, the District Educational Officer rejected the proposal for approval of the appointments of the petitioners on the ground that the Manager did not appoint a protected teacher in the School as per G.O.(P) No.178/02/G.Edn., dated 28.6.2002. The Deputy Director of Education, Kollam confirmed the order passed by the District Educational Officer, as per Exts.P3 and P4 orders dated 27.4.2006 and 6.11.2006. On revision, the Director of Public Instructions, as per Ext.P5 order dated 24.11.2007, upheld the orders passed by the authorities below. The matter was taken up before Government by the Manager as well as by the petitioners. The Government W.P.(C) NO.31165 OF 2008 :: 2 :: disposed of the matter as per Ext.P8 order dated 16.5.2008. It was held in Ext.P8 order that since the Manager had already taken steps to absorb protected teacher from the list forwarded by the Deputy Director of Education, the Educational Officers were to be directed to approve the appointment of the petitioners with effect from the date of appointment of a protected teacher. Ext.P8, to the extent to which it goes against the petitioners, is under challenge in this Writ Petition. 3. It is stated in paragraph 9 of the counter affidavit thus: “The Manager, High School, Arkannoor has absorbed one protected Physical Education Teacher from High School, Kuzhikkalidavaka (Sri.K.Radhakrishnan Nair, Physical Education Teacher) by late on 13.6.2008 against the V.R.S. vacancy of Sri.P.G.Radhakrishnan Nair, who had retired voluntarily from service on 31.1.2008. Accordingly the appointment of Sri.Jacob P.Abraham as HSA(Hindi) and Sri.G.Ramesh as Full Time Menial were approved by the 4th respondent District Educational Officer, Kottarakkara with effect from 14.6.2008 date of joining duty of protected teacher as directed in G.O.(Rt) No.2203/08/G.Edn., dated 16.5.2008 in obedience of the Honourable Judgment in W.P.(C) No.9090/08 dated W.P.(C) NO.31165 OF 2008 :: 3 :: 18.3.2008, filed by Smt.B.Saraswathy Amma, Manager, High School, Arkannoor.” 4. The contention of the petitioners is that their appointments are liable to be approved from the dates of their appointments. The petitioners rely on Exts.P6 and P7 letters issued by the Assistant Public Information Officer attached to the Office of the Deputy Director of Education, Kollam, to the second petitioner and the Manager respectively. In Ext.P6 letter dated 19.1.2007, it is stated as follows: “There are no undeployed protected Full Time Menials in Kottarakkara Educational District.” In Ext.P7 letter dated 19.1.2007, it is stated as follows: “There are no undeployed protected HSAs in Hindi in Kottarakkara Educational District for the year 2005-07.” Learned counsel for the petitioners submitted that in view of Exts.P6 and P7, there was no justification for denial of approval of appointments of the petitioners from the date of appointment. It is W.P.(C) NO.31165 OF 2008 :: 4 :: also stated that Ext.P8 order does not show that the state of affairs as disclosed in Exts.P6 and P7 are not correct or that protected teachers were available to be appointed in the School at the relevant time. 5. Learned Government Pleader, on the other hand, submitted that in Ext.P5 order passed by the Director of Public Instructions, it is stated thus: “In the particular case the District Educational Officer, Kottarakkara has reported that 4 HSAs (Hindi) under the aided school of that Educational District are now being working under protection in Govt. Schools within the revenue district, Kollam. Sri.Hareendra Babu, FTM TVTMHSS, Veliyam under the District Educational Officer, Kottarakkara was working in Govt. H.S.Pallimon at the time of appointment.” 6. In Ext.P8 order, there is no mention as to whether the above statement in Ext.P5 is correct or not. The above quoted statement in Ext.P5 cannot be true if the state of affairs as mentioned in Exts.P6 and P7 is correct. Or else, it should be shown that the information furnished in Exts.P6 and P7 is incorrect. There W.P.(C) NO.31165 OF 2008 :: 5 :: is no acceptable material to show the actual state of affairs at the relevant time, namely, the date on which the petitioners were appointed. 7. The petitioners have raised a contention that the first petitioner was appointed as HSA (Hindi) as a vacancy of HSA (Hindi) arose in the School on retirement of one Santhamma. There was no protected HSA (Hindi) available in the Educational District at the relevant time. The counsel also submitted that availability of a protected teacher in any other subject is not sufficient to deny approval to the first petitioner who was appointed as HSA (Hindi). This aspect is not considered in any of the orders passed by the educational authorities. 8. The learned Government Pleader submitted that going by G.O.(MS) No.83/88/G.Edn., dated 18.4.1988, the Manager is obliged to appoint a protected teacher from the list of protected teachers obtained from the Educational Officer and that the protected teachers need not necessarily belong to the same Educational Sub District/District. Learned Government Pleader also submitted that as per Rule 9 of Chapter III of the Kerala Education Rules, the Manager W.P.(C) NO.31165 OF 2008 :: 6 :: shall abide by the orders that may be issued from time to time by the Government. In answer, learned counsel for the petitioners submitted that a Government Order cannot run contrary to the statutory provisions. Rule 6(viii) of Chapter V of the Kerala Education Rules specifically provides that the retrenched teachers to be appointed should belong to High Schools in the Educational District or aided primary schools in the Educational Sub district in which the newly opened or upgraded school was proposed to be opened or upgraded. The counsel also relied on the decision in Moosakutty v. DEO, Wandoor (2009 (3) KLT 863), in which, this Court held that an executive order cannot override the express statutory prescriptions and, therefore, the order passed by the educational authorities based on G.O.(P)No.83/88 dated 18.4.1988 was unsustainable. The learned Government Pleader submitted that a Writ Appeal is pending against the judgment in Moosakutty's case. 9. As per G.O.(P)No.46/2006/G.Edn. dated 1.2.2006, appointment of 402 teachers and non-teaching staff were directed to be approved with effect from 1.2.2006, in the facts and circumstances mentioned in the Government Order. Those 402 persons were included in the list as on 31.12.2004. In the facts and W.P.(C) NO.31165 OF 2008 :: 7 :: circumstances of the present case, whether the case of the petitioners also can be considered in similar line as mentioned in G.O.(P)No.46/2006 also requires to be considered by the Government for granting approval to their appointment at least from 1.2.2006. The learned Government Pleader submitted that going by G.O.(P)No.46/2006 dated 1.2.2006, the Manager was bound to appoint at least one protected teacher in the School and until it is done, he could appoint teachers only on daily wages till the date of appointment of a protected teacher. This is also a matter to be considered by the Government while considering the question whether the benefit of the Government Order can be extended in favour of the petitioners. 10. For the reasons mentioned above, I am of the view that the matter requires to be considered by the Government afresh. Ext.P8, limiting the approval of appointments of the petitioners with effect from the date of appointment of a protected teacher, is quashed. In other words, that part of Ext.P8 order granting approval to the appointment of the petitioners shall remain in force. The Government shall consider the matter afresh after affording an opportunity of being heard to the petitioners, the Manager and any W.P.(C) NO.31165 OF 2008 :: 8 :: other affected party. The petitioners shall produce a copy of the Writ Petition, a copy of the counter affidavit (along with exhibits) and a certified copy of the judgment before the first respondent without delay. The Writ Petition is allowed in part as above. (K.T.SANKARAN) Judge ahz/