IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 1130 of 2009(H) ------------------------------------ PETITIONER(S): ---------------------- 1. ROSMI. P., AGED 29 YEARS, W/O.MR.UMMER.M.T. WORKING NON-VOCATIONAL TEACHER (BOTANY), J.D.T.ISLAM, VOCATIONAL HIGHER SECONDARY SCHOOL CALICUT, (RESIDING AT PARAPPURAM HOUSE, PO. WANDOOR, MALAPPURAM DISTRICT). 2. DR.P.C.ANWAR, MANAGER, J.D.T. ISLAM, VOCATIONAL HIGHER SECONDARY SCHOOL, KOZHIKODE-673 012. BY ADV. MR.TPM.IBRAHIM KHAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM 2. THE DIRECTOR , DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. ASSISTANT DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, MINI CIVIL STATION, VADAKARA, KOZHIKODE DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER MR.K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON 10/07/2009 DELIVERED THE FOLLOWING: WP(C) NO. 1130/2009-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.40858/SC2/2008/GI. EDN. DATED 20/10/2008 ISSUED BY THE FIRST RESPONDENT. EXT.P2: COPY OF THE LETTER NO.E3-16537/06 DATED 11/05/2007 ISSUED BY THE SECOND RESPONDENT. EXT.P3: COPY OF THE NOTIFICATION APPEARED IN CHNDRIKA DAILY DATED 10/06/2007. EXT.P4: COPY OF THE LETTER NO.EL/R1/17639/08 DATED 29/09/2008 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE NOTES RELATING TO THE PROCEEDINGS FOR THE SELECTION OF THE FIRST PETITIONER. EXT.P5: COPY OF THE APPOINTMENT ORDER WITH REF.NO.29/06 DATED 10/08/2007 ISSUED BY THE SECOND PETITIONER. EXT.P6: COPY OF THE JUDGMENT DATED 15/02/2008 OF THIS HONOURABLE COURT IN WRIT PETITION (CIVIL) NO.5453 OF 2008. EXT.P7: COPY OF THE GOVERNMENT ORDER NO.E3/16537/06 DATED 12/03/2008 ISSUED BY THE FIRST RESPONDENT. EXT.P8: COPY OF THE REVIEW PETITION DATED 28/04/2008 SUBMITTED BEFORE THE FIRST RESPONDENT. EXT.P9: COPY OF THE ARGUMENT NOTE DATED 15/09/2008 FILED BY THE FIRST PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P10: COPY OF THE GOVERNMENT ORDER (RT)NO.33/04/98/G.EDN. DATED 21/08/1998 FILED BY THE FIRST RESPONDENT. EXT.P11: COPY OF THE LETTER NO.E3/16537/06 DATED 21/07/2007 ISSUED BY THE 2ND RESPONDENT. EXT.P12: COPY OF THE LETTER NO.B/2330/06 DATED 14/08/2007 ISSUED BY THE ASSISTANT DIRECTOR VHSE REGIONAL OFFICE, VADAKARA. EXT.P13: COPY OF THE LETTER NO.D-2330/06 DATED 31/07/2007 ISSUED BY THE THIRD RESPONDENT TO THE 2ND PETITIONER. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE LETTER NO.67646/SC2/08/G.EDN. DATED 25/04/2009. EXT.R2(a): COPY OF THE NO.E3/16537/06 DATED 27/07/2007. EXT.R2(b): COPY OF THE NO.E3/9566/02, DATED 12/09/2002. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 1130 of 2009-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of July, 2009. JUDGMENT Aggrieved by the rejection of the approval of appointment of the first petitioner as Non Vocational Teacher (Botany) with effect from the date of appointment, the petitioners have filed this writ petition. 2. The second petitioner is the Manager of the school. The first petitioner submitted an application pursuant to the advertisement inviting applications for the post. The first petitioner is having a postgraduate degree in Botany with B.Ed. and also SET. 3. The selection procedure is preceded by permission issued by the second respondent Director of Vocational Higher Secondary Education, as evident from Ext.P2. Ext.P3 is the notification. The interview for the selection was held by the third respondent, viz. the Assistant Director of Vocational Higher Secondary Education, Kozhikode, as authorised by the Director. As the first petitioner was ranked first, she was appointed as per Ext.P5 order dated 10.8.2007. The vacancy arose due to the resignation of one Shri M.P. Hassan Koya who was a Non Vocational Teacher in Botany. 4. Since the appointment was not being approved, the first petitioner wpc 1130/2009 2 approached this court by filing W.P.(C) No.5453/2008 which was disposed of by Ext.P6 judgment directing the first respondent to take a final decision in the matter. The second respondent passed Ext.P7 order rejecting the proposal for approval. Thereafter, the petitioner approached the first respondent by Ext.P8 review petition and accordingly, Ext.P1 order was passed. 5. The main reason for rejecting the approval by the second respondent is that only one teacher in the post of Non Vocational Teacher (Biology) can be allowed in the school and the existing post has to be redesignated as Non Vocational Teacher in Biology. This view was confirmed by the Government in Ext.P1. 6. Learned counsel for the petitioners submitted that the view taken by the Government and the second respondent is totally against Ext.P10 order passed by the Government itself. It is submitted that going by Ext.P10 order passed by the Government, there is sanction for two posts in Botany and Zoology. The protection was obviously for the posts and not to the teachers. The vacancy arose due to resignation of one of the teachers and selection was made to fill up an existing vacancy. The Government cannot therefore insist that only one post is required. 7. Ext.P10 order was passed by the Government as a general order in wpc 1130/2009 3 respect of continuance of the post of lecturers in Botany and Zoology in Vocational Higher Secondary Schools. The relevant portion of the same contained in para 2 (i) and (ii) are extracted below: “(i) Only one teacher for Biology will be allowed to those schools where Vocational Higher Secondary Course are allowed after the introduction of NCERT Syllabus, i.e. from the academic year 1994- 95 onwards. (ii) “In schools where Vocational Higher Secondary Courses were allowed before the introduction of NCERT Syllabus, two posts of Lecturers in Botany and Zoology will be allowed in accordance with the work load in the concerned subject.” 8. Going by para (i) of the same, one Teacher in Biology will be allowed in schools where Vocational Higher Secondary Course is allowed after the introduction of NCERT Syllabus from the academic year 1995-96 onwards. The same is not applicable here, as in the case of the second petitioner, Vocational Higher Secondary Course was sanctioned in the year 1991-92. Therefore sub para (ii) will apply in the case of the second petitioner. In cases where the said course was allowed before the introduction of NCERT Syllabus, two posts of Lecturers in Botany and Zoology are allowed. 9. In the light of the above, the reason stated in Exts.P1 and P7 that wpc 1130/2009 4 the existing post of Zoology Teacher should be converted as one post in Biology, cannot be plainly supported. In fact, in para 2 of the counter affidavit itself, it is stated that the Manager was allowed to conduct the selection procedure to appoint a person in the newly arisen vacancy, since the teacher in the post of Botany in the school is a protected one. It is also averred that the Director, the second respondent had authorized the third respondent to conduct the interview. The counter affidavit further shows that in Government schools, the posts of Botany and Zoology have been abolished and the two posts were unified and renamed as Non Vocational Teacher in Biology and therefore the Director sought for a clarification in the matter. In fact, the abolition of the two posts and conversion of the same as one in Biology is only from the academic year 1994-95. 10. Actually, this is the reason pointed out in Exts.P1 and P7 to refuse approval of the appointment. There is no case for the respondents that the unification of both the posts of Zoology and Botany as one in Government schools, have been made applicable by separate orders in the schools like that of the second petitioner. Therefore, plainly, the matter will have to be considered in the light of the stipulations made in Ext.P10, which is still in force. There is no case that the said order was modified. The only condition provided in Ext.P10 is to see whether the two posts were existing wpc 1130/2009 5 prior to the introduction of NCERT Syllabus in the school. The said test is satisfied as far as the second petitioner’s school is concerned. In that view of the matter, the respondents cannot contend for the position that only one post is required. 11. Evidently, prior to the appointment of the first petitioner, there was no direction issued by the Government to redesignate the existing post of Non Vocational Teacher in Botany and Zoology as Non Vocational Teacher in Biology. The process of selection was started after grant of due permission by the second respondent also. The selection was conducted in the office of the third respondent who was practically acting as Chairman of the Selection Committee. As regards the qualification of the petitioner or any other like aspects, there is no dispute also. In that view of the matter, the stand taken that the appointment should have been made only after getting direction from the second respondent, also cannot be sustained. 12. It is clear from the pleadings that the Vocational Higher Secondary Classes were started in the second petitioner’s school from the academic year 1991-92 onwards and from that year onwards two persons were appointed. The vacancy arose only due to resignation. Therefore, the appointment is liable to be approved. Hence, the writ petition is allowed. Exts.P1 and P7 are quashed. wpc 1130/2009 6 There will be a direction to the second respondent to approve the appointment of the first petitioner from the date of appointment itself and steps will be taken to disburse the salary including arrears. The orders regarding approval will be passed within a period of two months from the date of receipt of a copy of this judgment. (T.R. Ramachandran Nair, Judge.) kav/