IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 18986 of 2009(P) -------------------------- PETITIONER(S): --------------- P.V.GIREESH, PEON, AMH SCHOOL, VENGOOR, MALAPPURAM DISTRICT. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR. 5. THE MANAGER, AMH SCHOOL, VENGOOR, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN FOR R3 & 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.18986/2009 EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 13.6.2005 ISSUED BY THE 5TH RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER DATED 27.3.2006 OF THE 4TH RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER DATED 23.8.2006 OF THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE ORDER DATED 20.6.2008 OF THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE REVISION PETITION DATED 16.7.2008 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P6 TRUE COPY OF THE ORDER DT. 1.9.2008 OF THE 2ND RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER DT. 25.5.2009 OF THE 4TH RESPONDENT. //TRUE COPY// P.A. TO JUDGE P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.18986 of 2009 ------------------------------- Dated this the 9th day of July, 2010 J U D G M E N T The petitioner was appointed as Peon in AMH School, Vengoor, a newly established school in Wandoor Education District, by the fifth respondent Manager, as per Ext.P1 order, dated 13.6.2005. As per the approved staff pattern, two posts of Peons and one post of Clerk were sanctioned in the school. The petitioner was appointed as Peon in the second post. The District Education Officer, Wandoor, declined to approve the petitioner's appointment as Peon by Ext.P2 order, dated 27.3.2006, on the short ground that the manager has not absorbed protected hands. Reliance was placed on G.O.(P) No.178/02 G.Edn. dated 28.6.2002. Though the manager filed an appeal before the Deputy Director of Education, Malappuram, it was dismissed by Ext.P3 order, dated 23.8.2006. The revision petition filed before the Director of Public Instruction was rejected by Ext.P4 order, dated 20.6.2008. Though the manager moved the Government in revision by filing Ext.P5 2 representation, the Government forwarded it to the Director of Public Instruction for disposal. The Director of Public Instructions, thereupon passed Ext.P6 order, dated 1.9.2008, upholding the view taken by the subordinate authorities. Exts.P2 to P4 and P6 are under challenge in this writ petition, wherein the petitioner seeks a direction to the respondents to approve his appointment as Peon. It is contended that G.O.(P) No.178/02 G.Edn. dated 28.6.2002 does not apply to the appointment of non teaching staff and that as a matter of fact no protected hand was available for absorption in the newly sanctioned school. The petitioner also relies on Ext.P7 order passed by the District Education Officer, Wandoor, on 25.5.2009 approving the appointment of Sri.R.Anil Kumar who was appointed as Full Time Menial in the very same school with effect from 1.11.2005 pursuant to the judgment of this Court in W.P. (C) No.36776 of 2007. It is contended that the appointment of Sri.R.Anil Kumar was also rejected stating the very same reasons and this Court has in the aforesaid judgment, held that 3 the order declining approval cannot be sustained for the reason that the list of protected hands had not been furnished to the Manager before the appointment was made. It is contended that a list of protected hands was forwarded to the Manager only as per letter dated 27.1.2007, and therefore, the appointment effected on 13.6.2005 cannot be said to be illegal. 2. The respondents have filed a counter affidavit justifying the impugned order. Relying on G.O.(P) No.178/02 G.Edn. dated 28.6.2002 it is contended that the manager was bound to absorb protected hands. The District Education Officer, Wandoor, has in the counter affidavit stated as follows:- “It is submitted that, the petitioner was appointed as Peon in A.M.High School, Vengoor, with effect from 13.6.2005 onwards against the promotion vacancy of Sri.P.Haneefa, Peon as Lower Division Clerk with effect from 1.6.2005. The appointment and the appeals were rejected for the reason that AMHS, Vengoor is a newly upgraded school and all existing/arising vacancies has to be filled up with protected hands vide G.O.(P) No.178/02/G.Edn. Dated 28.6.2002.” 4 3. I heard Sri.Brijesh Mohan, the learned counsel appearing for the petitioner and Smt.Smitha Sukumaran, the learned Government Pleader appearing for the respondents. I have also considered the pleadings and the materials on record.The school in which the petitioners were appointed is a newly sanctioned school. The fifth respondent had while applying for permission to open the school, executed an agreement as required under rule 6(viii) of Chapter V of the Kerala Education Rules, expressing his willingness to absorb qualified teachers/non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the education district or aided primary schools in the education sub-district in which the school is opened. The fifth respondent's school is situated in Tirur education sub district. It is not in dispute that in Malappuram revenue district, there are two education sub- districts, viz., Wandoor and Tirur. Therefore, on the terms of rule 6 (viii) of Chapter V of Kerala Education Rules, the fifth 5 respondent was bound to appoint qualified teachers/non teaching staff of the education district, who have been given the benefit of protection under the protection orders issued by the Government. 5. In the instant case, the authorities have declined to approve the appointments of the petitioners on the short ground that the Manager has not absorbed protected hands. The first petitioner's appointment as Clerk was declined on the ground that his appointment as Full Time Menial has not been approved. Like wise, the second petitioner's appointment as Full Time Menial in the vacancy that arose on the appointment of the first petitioner as Clerk was not approved on two grounds. The first reason is that the vacancy cannot be said to have arisen as the first petitioner's promotion is not approved and the second reason was that the Manager has not absorbed protected hands. In other words, it is because of the non- absorption of protected hands that the appointments in question have not been approved. The original/ 6 appellate/revisional authorities and the Government have relied on G.O.(P) No.178/02/G.Edn., dated 28.6.2002, to hold that the appointments of the petitioners are not in order. 6. The Government order, G.O.(P) No. 178/02/G.Edn., dated 28.6.2002, reads as follows:- ORDER As per the Government Order read as 1st paper above additional economy measures had been imposed, to overcome the precarious financial condition of the State. As part of these measures, in the G.O. read as 2nd paper above it has been interalia ordered that Government will take all possible steps to redeploy the maximum number of protected teachers by 30.6.2002 and that orders on the modalities and procedures for deployment of protected teachers will be issued seperately. Accordingly Government are now pleased to issue the following guidelines for the redeployment of protected teachers. (i) The management of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. The Deputy Director of Educations concerned shall make available district- wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. 7 (ii) The schools under Corporate Managements shall be treated as a single unit and the protected teachers under them shall be appointed in the existing/arising vacancies in those schools. (iii) Protected teachers under various managements shall be appointed in the schools under the respective managements, against the existing/arising vacancies in the categories of has/UPSA/LPSA/Language teacher by protecting their salary in the original posts. They shall be absorbed in their original post as and then vacancies arise in those categories. Minimum subject requirement should be ensured while accomodating protected teachers in High Schools. (iv) In respect of schools where there are protected teachers, all of them should be absorbed in the existing/arising vacancies as provided in (iii) above. The remaining vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs. In schools where there are no protected teachers, the existing/arising vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs first priority being given to appointment of protected teachers. (v) The Protected teachers shall be deployed against the vacancies, if any, under, Sarva Siksha Abhiyan/DPEP/IT @ school/State Literacy Mission, subject to the specific condition that such appointment does not 8 involve the creation of any additional post. (vi) Protected teachers shall be deployed in vacancies in schools under local self Government institutions. (vii) The existing language/specialist teachers who become protected shall be appointed by creation of posts on clubbing arrangement of nearby schools, subject to the specific condition that such posts shall be abolished as and when they retire from service. (viii) Teachers retained under 1:40 ratio shall also be considered as protected and deployed as per these guidelines. (ix) The protected teachers who are to retire from service on or before 31.5.2003 shall be excepted from redeployment and allowed to continue in their parent schools till their retirement. (x) Protected Physical Education teachers in the High School/U.P.Section shall be appointed in the regular vacancies, if any, arising in H.S./U.P. Section, since the qualification of both U.P./H.S. Physical Education teachers are the same. (xi) Full time language teachers having minimum 8 periods and 5 years service need not be treated as protected. However, their service can be utilised by other schools also on clubbing basis. (xii) Language teachers working in Full Time Posts by virtue of 'Group C' diversion need not be treated as protected. (xiii) The excess protected teachers who could not be deployed by the above means shall be retrenched from their parent schools 9 with effect from 1.7.2002 and they shall be paid 50% Salary. (xiv) The protected teachers shall be willing to undertake any duty/responsibility as may be entrusted. Unwillingness to undertake the work assigned to them as per redeployment, will render them ineligible for the benefit of protection and eligibility for salary. 7. On the terms of the above Government order, it is evident that it applies only to the appointment of teachers. Even in that Government order, in clause (1) it is stipulated that the Deputy Director of Education concerned shall make available district-wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. Hence, on the terms of the Government order, dated 28.6.2002, the said Government order can have no application to the case on hand. The Manager of an aided school in a district (Malappuram District) cannot have personal knowledge of all protected hands in that district or education sub districts who are required to be absorbed in terms of rule 6(viii) of Chapter V of the Kerala Education Rules. Necessarily therefore such 10 information should be made available to the Managers of newly opened schools by the concerned District Education Officers. In the instant case, though the Government have stated in Ext.P11 order that two protected hands are available in Malappuram District for absorption, the Government have not disclosed the names of the two protected hands or the point of time at which they became protected hands. The official respondents have also not chosen to file a counter affidavit explaining the availability of such protected hands in the education district, at the point of time, when Exts.P1, P2 and P3 orders were issued. In such circumstances, I am of the considered opinion that the Manager cannot be found fault with for having appointed persons from the open market. The District Education Officer, Tirur and the Deputy Director of Education, Malappuram, should be deemed to be aware of the fact that fifth respondent has been permitted to open a new school in Tirur education sub district. If that be so, it was their duty to supply information regarding protected non-teaching staff in the education district to the 11 Manager. That having admittedly not been done, I am of the considered opinion that the reasons given by the original/appellate/revisional authorities and the Government for declining to approve the appointments of the petitioners cannot be sustained. In the result, I allow the writ petition, quash Exts.P4 to P11 orders, and direct the fourth respondent to approve the appointment of the first petitioner as Full Time Menial with effect from 8.12.2005, if his appointment is otherwise in order and as Clerk with effect from 13.3.2006, if a vacancy of Clerk was in existence on that date. The appointment of the second petitioner as Full Time Menial shall be approved subject to the rider that such approval shall be for the period during which the first petitioner continues to work as Clerk in the school in the leave vacancy of Sri.P.V.Sherafudheen. Final orders in the matter shall be passed within six weeks from the date on which the petitioners produce a certified copy of this judgment before the fourth respondent. Needless to say, the fourth respondent 12 shall also take steps to draw and disburse arrears of salary and allowances to the petitioners within one month from the date of grant of such approval. P.N.RAVINDRAN, Judge. nj.