IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 WP(C).No. 19179 of 2009(N) -------------------------------- PETITIONER: -------------- P.P.JAYASREE,HINDI TEACHER (LS), KMA UP SCHOOL,KARATHALA,P.O.THOLAVANUR, MALAPPURAM-676557. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: ------------------ 1. STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT OF KERALA,GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT,TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, KUTTIPURAM. 5. THE MANAGER,KMA UP SCHOOL,KARTHALA, P.O.THOLAVANUR,MALAPPURAM. BY SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.19179/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER DTD. 14.1.05 ISSUED BY R4. EXT. P2 : COPY OF ORDER DTD. 26.8.02 ISSUED BY R4. EXT. P3 : COPY OF ORDER DTD. 22.12.05 ISSUED BY R4. EXT. P4 : COPY OF APPOINTMENT ORDER DTD. 5.6.06 ISSUED BY R5 TO PETITIONER. EXT. P5 : COPY OF PROCEEDINGS DTD. 24.11.05 OF R2. EXT. P6 : COPY OF PROCEEDINGS DTD. 7.12.07 ISSUED BY R3. EXT. P7 : COPY OF RECOMMENDATION DTD. 31.1.08 ISSUED BY R4. EXT. P8 : COPY OF PROCEEDINGS DTD. 12.5.08 ISSUED BY R2 TO PETITIONER. EXT. P9 : COPY OF ORDER DTD. 18.5.09 ISSUED BY R1 TO PETITIONER. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.19179 OF 2009 --------------------------------------- Dated this the 28th day of June, 2011. J U D G M E N T The petitioner who was appointed as a Hindi Teacher in the school managed by the 5th respondent is aggrieved by the rejection of approval of her appointment on the reason that a protected hand ought to have been appointed. Apart from that, the petitioner also claims appointment on regular basis for two spells which preceded her regular appointment. It is contended that no protected hand was available in the revenue district as evident from the statement filed by the respondents itself. 2. The petitioner was appointed as a leave substitute Hindi teacher between 04.02.2003 to 07.04.2003, 15.06.2004 to 14.08.2004 and 01.12.2005 to 11.02.2006. Exts.P1 to P3 are the orders rejecting approval of appointment. 3. When a retirement vacancy arose on 05.06.2006, the petitioner was appointed. The approval is granted from W.P.(C) No.19179/2009 2 19.12.2007 as evident from Ext.P4. The 2nd respondent also confirmed the said approval as per Ext.P5. The petitioner later approached the Government and the Government also rejected the claim as evident from Ext.P9. 4. Learned counsel for the petitioner submitted that no protected Hindi teacher was available for appointment and therefore, in the light of the decision of this Court in Moosakutty vs. D.E.O, Wandoor (2009(3) KLT 863) and other decisions of this Court, the petitioner is entitled to succeed in the writ petition. 5. The 1st respondent has filed a counter affidavit and the 3rd respondent has filed a statement. In the statement filed by the 3rd respondent, in paragraph 3, it is averred as follows: “It is submitted that there were no protected teachers in the category of F.T. Hindi Teacher who is available at the time of appointment of the petitioner. But at the same time, the Manager has executed agreement under Rule 6(viii) Chapter V KER at the time of opening of the school to the effect that he is ready to absorb protected teacher. The Manager cannot evade from the liability of appointing protected teacher only on the ground that the protected teacher was not available in the educational district/sub district...... W.P.(C) No.19179/2009 3 6. Subsequent Government Orders are also relied upon in that context. This aspect is covered in favour of the petitioner in the light of the decision in Moosakutty's case (supra). The obligation of the Manager is only under Rule 6(viii) of Chapter V KER and as it stood at the relevant time. Being a U.P school, there should have been a protected teacher available in the sub district. 7. Therefore, the contention that the Manager ought to have appointed a protected teacher from the revenue district and in terms of the Government circulars cannot be sustained. Therefore, the petitioner is entitled to succeed in the writ petition with regard to the claim for approval from 05.06.2006 onwards in the place of 19.12.2007. 8. The next issue is with regard to the approval on daily wage basis for the period from 04.02.2003 to 07.04.2003 and from 15.06.2004 to 14.08.2004. Evidently, Rule 7A(3) was introduced in the Statute by G.O.(P) No.121/05 GE dated 16.04.2005. 9. Learned counsel for the petitioner relied upon the W.P.(C) No.19179/2009 4 decision of a Division Bench of this Court in Abdurahiman vs. Government of Kerala (2009 (2) KLT 105) to contend for the position that any appointment prior to an amendment cannot affect the rights of persons who are appointed to short term duration of vacancies exceeding two months. Therein, the proviso I to Rule 51A of Chapter XIV-A KER had came up for interpretation. The same principle can be applied herein also because the amendment in Rule 7A(3) is introduced only from 27.04.2005. 10. Evidently, the period from 04.02.2003 to 07.04.2003 and from 15.06.2004 to 14.08.2004 will not be covered by the embargo in Rule 7A(3). But the learned Government Pleader submitted that approval on daily wage basis was justified in the light of G.O.(P)No.169/04/G.Edn. dated 15.06.2004 and G.O.(P)No.104/2008/G.Edn. dated 10.06.2008. Evidently, the said issue was considered by this Court in Unni Narayanan vs. State of Kerala (2009 (2) KLT 604) and it was held that the teachers are entitled for salary on regular basis. It is submitted that Special Leave Petitions are pending before the Supreme W.P.(C) No.19179/2009 5 Court. Therefore, in the event of the said judgment being upheld alone, the petitioner will be getting the benefit of full salary for the two spells namely, from 04.02.2003 to 07.04.2003 and from 15.06.2004 to 14.08.2004. Therefore, the petitioner is given liberty to move the Department once Special Leave Petitions are disposed of. 11. In that view of the matter, this writ petition is allowed. Ext.P4 to the extent to which approval is granted from 19.12.2007 and the orders passed in appeal and revision are quashed to that extent. It is declared that the petitioner is entitled for approval from 05.06.2006. It is then pointed out by the learned counsel for the petitioner that in the light of the judgment in Abdurahiman vs. Government of Kerala (2009 (2) KLT 105), the petitioner is entitled for payment of salary for the periods from 04.02.2003 to 07.04.2003 and from 15.06.2004 to 14.08.2004. This aspect will be examined by the appropriate authority while approving the appointment from 05.06.2006 and appropriate orders will be passed within a period of three months from the date of receipt W.P.(C) No.19179/2009 6 of a copy of this judgment and the petitioner will also be entitled for consequential benefits on getting approval of appointment from 05.06.2006. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp