IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 WP(C).No. 30613 of 2008(T) -------------------------------------- PETITIONER: ------------------- RANJINI.P., HSA (HINDI),N A M H S S, PERINGATHUR, THALASSERY, KANNUR DISTRICT:RESIDING AT PANICHINGANDAVIDA HOUSE, ANIYARAM.P.O, VIA. CHOKLI, KANNUR DISTRICT,PIN:670 672. BY ADV. SMT.JAYASREE MANOJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA-REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. DISTRICT EDUCATION OFFICER, THALASSERY. 5. THE MANAGER, NAMHSS, PERINGATHUR, THALASSERY, KANNUR DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SRI. T.T. MUHAMOOD, R5 BY ADVS. SRI.K.V.SOHAN, SMT.SREEJA SOHAN.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30613/2008-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 07/01/2005. EXT.P.2: COPY OF THE APPEAL DTD. 17/01/2005 FILED BEFORE THE R.3. EXT.P.3: COPY OF THE ORDER DTD. 09/04/2005 OF THE R.3. EXT.P.4: COPY OF THE REVISION DTD. 26/04/2005 FILED BEFORE THE R.2. EXT.P.5: COPY OF THE ORDER DTD. 16/07/2005 OF THE R.2. EXT.P.6: COPY OF THE REVISION DTD. 13/08/05 FILED BEFORE THE R.1. EXT.P.7: COPY OF THE ORDER DTD. 09/01/2006. EXT.P.8: COPY OF THE APPEAL DTD. 30/01/2006 FILED BEFORE THE R.3. EXT.P.9: COPY OF THE ORDER DTD. 05/04/2006 OF THE R.3. EXT.P.10: COPY OF THE REVISION DTD. 01/05/2006 FILED BEFORE THE R.2. EXT.P.11: COPY OF THE ORDER DTD. 12/10/2006 OF THE R.2. EXT.P.12: COPY OF THE REVISION DTD. 03/11/2006 FILED BEFORE THE R.1. EXT.P.13: COPY OF THE ORDER DTD. 18/03/2008 OF THE R.1. EXT.P.14: COPY OF THE LETTER DTD. 22/03/2006 OF THE R.1. EXT.P.15: COPY OF THE REPRESENTATION DTD. 18/09/2006 SUBMITTED BEFORE THE HONOURABLE MINISTER FOR EDUCATION. EXT.P.16: COPY OF THE ORDER DTD. 03/07/2004 OF THE R.1. APPROVING THE APPOINTMENT OF SMT. M. SHAHEENA AS HSA (HINDI). EXT.P.17: COPY OF THE CIRCULAR DTD. 24/01/2005. EXT.P.18: COPY OF THE LETTER DTD. 18/09/2009. EXT.P.19: COPY OF THE JUDGMENT DTD. 24/09/2008 IN W.P.(C).NOS.2563/2008. EXT.P.20: COPY OF THE JUDGMENT DTD. 15/06/2009 IN W.P.(C).NOS.8039/2009. EXT.P.21: COPY OF THE LIST OF APPROVED TEACHERS. RESPONDENTS' EXHIBIT: EXT.R5.A: COPY OF THE ORDER ISSUED BY THE R.1. DT. 09/02/2009. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30613 of 2008-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2011. JUDGMENT Aggrieved by the rejection of the approval of appointment of the petitioner, this writ petition has been filed. Necessary facts for the disposal of the writ petition are the following: 2. The petitioner is working as High School Assistant (Hindi) in the school managed by the fifth respondent. The school was established in the year 1995. During staff fixation 2004-2005 one more vacancy of H.S.A. (Hindi) arose in the school in which the petitioner was appointed on 13.8.2004. 3. The consistent view taken by the District Educational Officer upto the Government level is that the vacancy has to be filled up by protected teacher. The respective orders are Ext.P1 issued by the District Educational Officer, Ext.P3 issued by the Deputy Director of Education and Ext.P5 issued by the Director of Public Instruction. 4. According to the petitioner, in terms of the agreement executed by the Manager, one Shri Radhakrishnan, a protected teacher was appointed and when he was sent back to the parent school, another protected teacher wpc 30613/2008 2 Shri Subash was appointed in the school who is continuing and therefore the Manager has discharged his statutory obligation under Rule Rule 6(viii) of Chapter V K.E.R. 5. After the reopening of the school, the petitioner was again appointed from 1.6.2005. The said appointment was also sought to be approved and the authorities rejected the proposal reiterating the same stand, as per Exts.P7, P9 and P11 orders. Finally, the Government also rejected the request as per Ext.P13, wherein the view taken is that the school is a newly opened one and all the vacancies should be filled up by protected teachers as per G.O.(P) No.178/02/G.Edn. dated 28.6.2002. The petitioner points out that the Manager has satisfied his obligation to appoint a protected teacher. The school was sanctioned during 1995-96. G.O.(P) No.178/02/G.Edn. dated 28.6.2002 is at a later point of time and the prescriptions therein will not apply. Ext.P14 is the letter from the Government to the Director of Public Instruction in connection with the hearing of the revision petition relating to her appointment, wherein the Government wanted to get information as to whether at the time of appointment of the petitioner any protected teacher was remaining in the entire Education district. It is also mentioned therein that in the additional division vacancies of the years 2004-2005 and 2005-2006 as per G.O.(P) wpc 30613/2008 3 No.317/05/G.Edn. dated 17.8.005 approval of appointments have been ordered. Ext.P16 is an order passed in favour of Smt. M. Shareena, H.S.A. (Hindi) working in C.H.M.H.S., Kavumpady, Thalassery, wherein the Government directed to approve her appointment, if there were no undeployed protected hands available in the District during the period. It is contended that at the time of appointment of the petitioner, no undeployed H.S.A. (Hindi) was available. 6. The Manager has filed a counter affidavit and an additional counter affidavit. It is stated that the Management complied its undertaking by way of bond and had actually absorbed one Radhakrishnan, H.S.A. (Social Science). Respondents 1 and 4 have also filed separate counter affidavits and the petitioner has filed a reply affidavit and also filed an interlocutory application producing certain documents. 7. In the counter affidavit filed by the first respondent, in para 6 it is stated that the appointment of the petitioner was during 2004-2005 and no documentary evidence was produced by her that there was no protected hands available during that period. With regard to the approval granted to Smt. Shareena M. as evident from Ext.P16 communication, it is contended that the same will not apply to the case of the petitioner. It is pointed out that during the period of the said appointment there was no protected wpc 30613/2008 4 teachers in that category available in the District. She was also appointed as H.S.A. (Hindi). In the counter affidavit filed by the fourth respondent, it is stated in para 10 that at the time of appointment of the petitioner, one Smt. M.K. Prasanna, H.S.A. (Hindi), a protected teacher was available in Thalassery Educational District for absorption. The approval granted to Smt. M. Sahreena is justified by stating that during that period there were no protected teachers in the category available in the District. 8. The petitioner produced along with the reply affidavit Ext.P18 which is a reply obtained under the Right to Information Act. In the reply affidavit, it is stated that Smt. N.K Prasanna was working as a protected teacher from 15.7.2001 till 2.12.2007 in Cheruvanchery P.G.M. Panchayat High School and she was later appointed and redeployed in Vengad E.K.N. H.S.S. from 3.12.2007 till 6.2.2009 and was again appointed in her parent school from 6.2.2009. It is pointed out by the petitioner that therefore she was not remaining as an unabsorbed protected hand during the period of appointment of the petitioner. These details have been mentioned in Ext.P18. 9. Learned counsel for the petitioner therefore submitted that the true question is whether at the time of appointment of the petitioner, a protected H.S.A. (Hindi0 was available in the District and whether the Manager has wpc 30613/2008 5 satisfied the obligation under Rule 6(viii) of Chapter V K.E.R. It is pointed out that Smt. M.K. Prasanna was not available as she was working in Chervanchery P.G.M. Panchayat High School from 15.7.2001 till 2.12.2007 and thereafter she was deployed to the other school. 10. The petitioner also relies upon the circular issued by the Government as per Ext.P17 dated 24.1.2005 and the judgments of this Court, viz. Exts.P19 and P20. In Ext.P17 circular the Government has insisted that the list of protected teachers should be sent by the Deputy Director of Education to the concerned Managers by registered post for enabling the Managers to make appointments and herein no such list was forwarded by the Deputy Director of Education. It is therefore pointed out that this Court in Exts.P19 and P20 judgments took the view that in the absence of a communication regarding the list of protected teachers, the Manager cannot be faulted for not making an appointment. 11. The appointment of the petitioner initially was on 13.8.2004 and later on 1.6.2005. That the Manager had appointed one protected H.S.A. (SS), Shri N. Radhakrishnan of KRHS, Pathiriyad , is not disputed. After he was sent back to the parent school, the Manager again appointed one Shri Subash M., protected H.S.A. (SS) of VHSS, Kadavathur. The obligation of the Manager under Rule 6(viii) of Chapter V K.E.R., as per the agreement is wpc 30613/2008 6 to absorb one protected teacher. Therefore, there cannot be any doubt that the Manager had satisfied his obligation. The view taken is that under G.O. (P) No.178/02/G.Edn. dated 28.6.2002 the Manager will have to fill up the vacancy by a protected teacher. Evidently, no list of protected teachers were communicated to the Manager for king an appointment. In Exts.P19 and P20 judgments the very same question was considered. In para 4 of Ext.P19 judgment, this Court held thus: “If list of protected hands has not been made available as required, the Manager cannot be faulted for not appointing the protected hands. Going by para 7 of the counter affidavit two protected hands mentioned in that paragraph have since been absorbed. In view of both these reasons, I see no justification in declining the approval of the petitioner.” In Ext.P20 judgment also, it was held thus in para 5: “Therefore, the obligation of the Manager is mainly to appoint one protected teacher in the school. Going by the circulars issued by the Director of Public Instruction, the Deputy Director of Education has to forward a list of protected teachers to the Manager for making appointment.” On facts, it was found that no such list was forwarded and hence the appointment is liable to be approved. The fact that the Manager had absorbed one protected teacher in the school, is admitted in para 2 of the wpc 30613/2008 7 counter affidavit also. The assertion that one protected teacher was available as H.S.A., is belied by Ext.P18 which shows that Smt. N.K. Prasanna was working at the relevant time in Cheruvanchery P.G.M. Panchayat High School from 15.7.2001 till 2.12.2007. Apart from that, the Manager has not received any list of protected teachers from the Deputy Director of Education during the relevant period which is clear from the affidavits filed by the Manager also. 12. In Moosakutty v. D.E.O., Wandoor (2009 (3) KLT 863, this Court considered an identical issue with regard to the interpretation of Rule 6 (viii) of Chapter V read with Rule 9 of Chapter III K.E.R. One of the contentions raised herein is also that the Manager is bound to fill up all the vacancies by protected hands. It was held by this Court that the statutory obligation of the Manager is under Rule 6(viii) of Chapter V K.E.R. and the executive orders cannot go against the express provisions of the statute. It was held thus in paragraphs 6, 8 and 9: xxx It is evident from the above judgment also that once the Manager has fulfilled the statutory obligation under Rule 6(viii) of Chapter V K.E.R., the approval cannot be rejected. 13. In the light of these facts, the petitioner is entitled to succeed in wpc 30613/2008 8 the writ petition. Therefore, the impugned orders Exts.P1, P3, P5, P7, P9, P11 and p13 are quashed. It is declared that the petitioner is entitled to get approval of her appointment as H.S.A. (Hindi) in respect of the appointments made from 13.8.2004 and from 1.6.2005. Appropriate orders will be passed granting approval of her appointment within a period of two months from the date of receipt of a copy of this judgment and the salary and other benefits along with arrears, will be disbursed accordingly. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/