IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 WP(C).No. 15898 of 2009(F) -------------------------------------- PETITIONER: ------------------- JAMES JOSEPH, S/O.C.O.JOSEPH, AGED 31 YEARS, CHAKKALAYIL HOUSE, CHIRAKKADAVU, KANJIRAPPILLY- 686 520, KOTTAYAM DISTRICT. BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. RESPONDENTS: ------------------------ 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, KOTTAYAM. 4. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPILLY, KOTTAYAM DISTRICT. 5. THE MANAGER ST.EPHREM'S HIGH SCHOOL, CHIRAKKADAVU, KANJIRAPPILLY, KOTTAYAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. SUDHA DEVI, R5 BY ADV. SRI.GEORGE SEBASTIAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15898/2009-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. B4/4974/03/K.DIS. OF THE DISTRICT EDUCATIONAL OFFICER DTD. 17/02/2004. EXT.P.1.A: COPY OF THE ORDER NO.B4/9830/03/K. IDS. OF THE DIST. EDUCATIONAL OFFICER DTD. 13/02/2004. EXT.P.2: COPY OF THE ORDER NO.B5/11086/04/K. DIS. OF THE DEPUTY DIRECTOR OF EDUCATION DTD. 11/02/2005. EXT.P.2.A: COPY OF THE ORDER NO. B5/11084/04/K. DIS. OF THE DEPUTY DIRECTOR DTD. 17/02/2005. EXT.P.3: COPY OF THE ORDER NO. ET3/2601/05/DPI/K. DIS. OF THE DIRECTOR DTD. 28/06/2006. EXT.P.4: COPY OF THE G.O.(RT).NO.3857/07/G. EDN. OF THE GOVERNMENT DTD. 18/08/2007. EXT.P.5: COPY OF THE LETTER NO.51146/A1/07/G. EDN. OF THE GOVERNMENT DTD. 10/03/2008. EXT.P.6: COPY OF THE ORDER NO. 17000/A1/2008/G. EDN. OF THE GOVERNMENT DTD. 22/07/2008. EXT.P.7: COPY OF THE LETTER NO.71962/A1/2008/G. EDN. OF THE GOVERNMENT DTD. 02/03/2009. EXT.P.8: COPY OF THE ORDER OF APPOINTMENT OF CINOBY JOSE DTD. 10/06/2003. EXT.P.8.A: COPY OF THE ORDER OF APPOINTMENT OF -DO- DTD. 14/10/2003. EXT.P.9: COPY OF THE LETTER NO. B4/10568/08 OF THE DISTRICT EDUCATIONAL OFFICER DTD. 13/03/2009. EXT.P.10: COPY OF THE COUNTER AFFIDAVIT IN W.P.(C).10621/2008-M DTD. 18/12/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15898/2009-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22nd day of September, 2010 J U D G M E N T The writ petition concerns the question regarding approval of appointment of the petitioner for two different periods in the school managed by the fifth respondent in leave vacancies. 2. Initially, the petitioner was appointed in the maternity leave vacancy of one Smt.Jiji Mathew from 10/06/2003 to 22/10/2003 and, in continuation thereof, he was again appointed with effect from 23/10/2003 to 11/12/2003 as H.S.A, Social Studies. The District Educational Officer by Ext.P1 order rejected the application for approval of appointment for the first spell, i.e. from 10/06/2003 to 22/10/2003. The request for approval of appointment of the second spell was rejected by Ext.P1(a) order, for want of sanctioned copy of approval of appointment related to the appointee from 10/06/2003 to 22/10/2003. The Manager filed an appeal against Ext.P1 order which was rejected by the Deputy Director of Education by Ext.P2. With regard to Ext.P1(a) also there was an appeal which was rejected by Ext.P2(a) by the Deputy Director of Education. Ext.P3 is the order passed by the W.P.(C). No.15898/2009 -:2:- Director of Public Instruction wherein the revision petition filed by the petitioner was rejected. Thereafter, the Government by Ext.P4 directed approval of appointment of the petitioner for the period from 10/06/2003 to 04/09/2003. The proceedings of the Director of Public Instruction and the District Educational Officer were set aside by the Government therein. 3. But, with regard to the remaining spell of appointment i.e., from 04/09/2003 to 11/12/2003 even though representations were filed before the Government by the local M.L.A, the Government as per Exts.P5 and P6 was of the view that the same cannot be considered. Further representations were also rejected by the Government. It is in these circumstances the writ petition has been filed. 4. Heard the learned counsel for the petitioner, learned Government Pleader appearing for the official respondents and the learned counsel appearing for the Manager. 5. Apart from the appointment in the leave vacancy of Smt.Jiji Mathew, the Management had also appointment one Cinoby Jose in the leave vacancy of Smt.K.U.Annakutty. The said appointment has been duly approved going by Exts.P8 and P8(a) orders. The petitioner seeks for a similar W.P.(C). No.15898/2009 -:3:- treatment as far as appointments for the entire periods are concerned. 6. The District Educational Officer, after the receipt of Ext.P4 Government Order, sought for a clarification by Ext.P9 letter on the plea that the Director of Public Instruction has objected a number of appointment to new schools which were approved by his office. According to the learned counsel for the petitioner, there is no justification for the District Educational Officer to seek a clarification as the Government has considered the entire case while passing Ext.P4 order. 7. The learned counsel for the Manager submitted that a fresh proposal was submitted to the District Educational Officer after receipt of the Government Order and an objection has been taken now that protected teachers have not been appointed by the school and, therefore, the entire matter may be directed to be considered by the Government afresh. 8. The stand taken by the first respondent in the counter affidavit is evident from paragraph (5). It is pointed out therein that there was an audit in the office of the fourth respondent wherein objections were taken W.P.(C). No.15898/2009 -:4:- against number of appointments made by Managers of new schools in the light of G.O.(P).No.178/2002/G.Edn., dated 28/06/2002 directing that all the existing/arising vacancies should be filled up by appointing protected teachers. It is pointed out that even though the said Government Order was modified as per G.O.(P). No.46/2006/G.Edn., dated 01/02/2006 directing that one protected teacher should be appointed in such aided schools, the Manager has not appointed at least one protected teacher in the school in question. Therefore, the objection now raised is that the appointment of the petitioner cannot be be approved for want of compliance of the conditions in G.O. dated 01/02/2006 by the Manager. 9. The petitioner has filed a reply affidavit wherein it is pointed out that as far as short term vacancies are concerned, that cannot be used for absorption of protected teachers. It is further pointed out in paragraph (4) of the reply affidavit that till 10/06/2003 more than 35 appointments were effected in the school and which are approved without any objection on the ground of non appointment of protected teachers and the petitioner cannot be discriminated. It is also pointed out that the appointment of Shri Cinoby Joseph from 01/06/2003 to W.P.(C). No.15898/2009 -:5:- 04/09/2003 and 14/10/2003 to 02/12/2003 against the leave vacancy was approved. 10. There cannot be any dispute that going by Ext.P4 order which has become final, the period of first spell of appointment of the petitioner i.e. from 10/06/2003 to 04/09/2003 has been directed to be approved by the Government. This order is passed in a revision petition filed before the Government. The authorities below can only implement the said order in the light of the fact that the Government upheld the eligibility for approval of appointment of the petitioner by the said order. Therefore, the clarification as sought for by the District Educational Officer (Ext.P9) pointing out that a number of appointments have been objected to by the Director of Public Instruction cannot be supported. The District Educational Officer has to implement the said order and, evidently, the Manager has submitted fresh proposal going by the averments of the counter affidavit also. In fact, as rightly pointed out by the learned counsel for the petitioner, the objection that a protected teacher was not appointed by the school was not at all raised by the District Educational Officer at any point of time and, after the Government has directed approval of appointment, W.P.(C). No.15898/2009 -:6:- merely based on an audit objection, the District Educational Officer cannot now take such a stand also. 11. Therefore, with regard to his first spell of appointment from 10/06/2003 to 04/09/2003, there will be a direction to the District Educational Officer to approve the appointment and pass appropriate orders in the matter, at any rate, within one month from the date of receipt of a copy of this Judgment. 12. With regard to the second spell, evidently, the Government has answered only the representation by the M.L.A of Vazhoor Constituency going by Exts.P5 and P6 letters. In fact, in Ext.P5, it is mentioned that the appointment of the petitioner was directed to be approved in the leave vacancy of Smt.K.U.Annakutty, which is not correct. The District Educational Officer in Ext.P1(a) sought to reject the application for approval on the plea that the order relating to approval of appointment with regard to the first spell has not been produced. Now, the said objection cannot be taken in the light of Ext.P4 order passed by the Government in the revision petition and in the light of the findings rendered above. In that view of the matter, Ext.P1(a) order is quashed apart from Exts.P5 and P6. There will be a direction to the District W.P.(C). No.15898/2009 -:7:- Educational Officer to consider the question of approval of appointment of the petitioner from 05/09/2003 to 11/12/2003, after the approval of appointment with regard to the first spell is ordered, and appropriate orders shall be passed within a further period of two months thereafter. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms