IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 37399 of 2010(Y) -------------------------- PETITIONER(S): --------------- 1. BINCY JOHNY, H.S.A.(MALAYALAM) ST.JOHN'S HIGH SCHOOL, PULINTHANAM. 2. GIGI PAUL, H.S.A.(ENGLISH) ST.JOHN'S HIGH SCHOOL, PULINTHANAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SMT.DHANYA CHANDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM, KOCHI-6952 030. 4. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA-686 661. 5. THE MANAGER, ST.JOHN'S HIGH SCHOOL, PULINTHANAM-686 671. ADV. SRI.JOHN JOSEPH(ROY) FOR R5 GOVERNMENT PLEADER, SMT.NISHA BOSE FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37399 of 2010 APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 04/06/2007 OF THE PETITIONER ISSUED BY THE 5TH RESPONDENT. EXT.P2 TRUE COPY OF ORDER NO.B3/3570/2007/K.DIS. DATED 29/09/2009 ISSUED BY THE 4TH RESPONDENT. EXT.P3 TRUE COPY OF ORDER NO.B4-24326/07/K.DIS DT.19/05/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE ORDER NO.ET4/44869/08/DPI/D.DIS DT.04/10/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF ORDER NO.13858/E3/10/G.EDN., DT.24/07/2010 ISSUED BY THE 1ST RESPONDENT. EXT.P6 TRUE COPY OF APPOINTMENT ORDER OF THE 2ND PETITIONER DT.01/06/2009 ISSUED BY THE 5TH RESPONDENT. EXT.P7 TRUE COPY OF APPOINTMENT ORDER NO.B3/3362/2009/K.DIS. DT.06/10/2009 ISSUED BY THE 4TH RESPONDENT. RESPONDENTS' EXTS: NIL \\True copy// P.A to Judge T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.37399/2010-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of December, 2011 J U D G M E N T The petitioners herein are aggrieved by the denial of approval from their respective dates of appointments. 2. The first petitioner was appointed as High School Assistant (Malayalam) as per Ext.P1 order dated 04/06/2007. Even though the Departmental Officers rejected the proposal for approval, finally, the Government by Ext.P5 order directed approval of appointment from 10/03/2010, the date on which a protected hand was appointed in the school. 3. As far as the second petitioner is concerned, the appointment is with effect from 01/06/2009. Ext.P6 is the appointment order. The same is rejected as per Ext.P7 pointing out that since the school is a newly opened school, G.O.(P).No.46/06/G.Edn., dated 01/02/2006 obliges the Manager to appoint a protected teacher. W.P.(C). No.37399/2010 -:2:- 4. Therefore, the apparent contention that is advanced by the respondents is that the Manager failed to discharge the obligation of appointing a protected hand and finally, the protected hand was appointed only on 10/03/2010. The Deputy Director of Education has filed a counter affidavit. The stand taken therein is that the Manager of the school did not report the vacancy to the third respondent and appointed the first petitioner. It is explained that there were undeployed protected teachers in the cadre of H.S.A (Malayalam) in Ernakulam Sub District at the time of appointment of the first petitioner and the details of three protected teachers have been mentioned therein. Finally, it is mentioned in para.4 that if the Manager had reported the vacancy to the Deputy Director of Education in time, a protected teacher could have been deployed with effect from 04/06/2007. 5. Regarding the above stand taken by the third respondent, the learned counsel for the petitioners submitted that the Government Orders which were issued and which were in force at the relevant time actually W.P.(C). No.37399/2010 -:3:- obliged the Deputy Director of Education to communicate the list of protected teachers to the Manager for making appointment of any protected hands in the school and in the absence of such a communication i.e., forwarding the list of protected teachers, there cannot be any fault on the part of the Manager. Reliance is placed on a recent decision of this Court in Nadeera v. State of Kerala [2011 (3) KLT 790]. 6. The learned Government Pleader explained that the Manager appointed the protected hand only on 10/03/2010 and therefore, it is a case where protected hands were available as averred in the statement. 7. In fact, this Court on several occasions have considered the very same question and held that unless a list of protected teachers is communicated, the Manager cannot be found fault with for not appointing a protected hand. In several cases, the list of protected teachers may not be available as far as the the relevant subjects are concerned also. In G.O.(P). No.178/2002/G.Edn., dated 28/06/2002 and G.O.(P). No.46/2006/G.Edn., dated 01/02/2006, the duty of the W.P.(C). No.37399/2010 -:4:- Departmental Officers to communicate the list of protected teachers to the Managers has been specified by the Government. Therefore, the stand taken by the Deputy Director of Education in the counter affidavit that the Manager should have first reported the vacancy cannot be accepted. The said legal aspect has also been explained in Nadeera's case [supra] wherein after going through various Judgments rendered by this Court, it was held that unless the list is communicated, the Manager cannot be found fault for not appointing a protected hand. This Court also held therein that there cannot be any postponement of approval of appointment of a qualified teacher till a protected hand becomes available. 8. In this case, as far as the appointment of the first petitioner is concerned, even though it is averred in the counter affidavit that three protected hands were available, there is nothing to show that their details have been furnished to the Manager by communicating the list. Therefore, in the light of the declaration made in Nadeera's case [2011 (3) KLT 790], W.P.(C). No.37399/2010 -:5:- the first petitioner is entitled for approval from the date of appointment itself. 9. As regards the second petitioner, there is no plea in the counter affidavit that a protected H.S.A (English) was available in the District concerned. Therefore, the second petitioner will also be covered by the dictum laid down in Nadeera's case [supra]. 10. For all these reasons, the writ petition is allowed. Ext.P5 to the extent to which the approval is ordered, as far as the first petitioner is concerned, from 10/03/2010 only is quashed. As far as the second petitioner is also concerned, Ext.P7 is quashed. In the light of the fact that the vacancy to which the first petitioner was appointed exceeds one academic year, going by the various decisions of this Court, she is also entitled for approval of appointment on regular basis from 04/06/2007. There will be a direction to District Educational Officer to approve the appointment of the petitioners from their respective dates of appointment and fresh orders will be passed within a period of three months from the date of receipt of a W.P.(C). No.37399/2010 -:6:- copy of this Judgment and consequential benefits will also be disbursed. The approval of appointment of the first petitioner will be subject to the outcome of the Special Leave Petition pending before the Supreme Court against the decision in Unni Narayanan v. State of Kerala [2009 (2) KLT 604] but the monetary benefits will be disbursed. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms