IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 37294 of 2008(M) --------------------------------- PETITIONER: -------------- P.S.MANOJKUMAR, S/O.P.N.SIVANKUTTY, AGED 40 YEARS, H.S.A.(MALAYALAM), M.P.V.H.S. KUMBAZHA, PATHANAMTHITTA, RESIDING AT PLAVAVUNILKKUNNATHIL, PALAMAROOR, KUMBAZHA P.O., PATHANAMTHITTA – 689 653. BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU) RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA. 4. THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 5. THE MANAGER, MPVHS, KUMBAZHA. BY SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.37294/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF REVISION FILED BY MANAGER BEFORE THE Director of Public Instruction. EXT. P2 : COPY OF ORDER No.ET(3)/10705/08/DPI/K.DIS. DTD. 26.3.08 WHICH IS PASSED BY R2. EXT. P3 : COPY OF PROCEEDING DTD. 31.7.06. EXT. P4 : COPY OF PROCEEDING DTD. 31.7.06 AND 28.7.08 WITH REGARD TO STAFF FIXATION WHICH IS ISSUED BY District Educational Officer. EXT. P5 : COPY OF LETTER DTD. 14.10.08 ISSUED BY R3. EXT.P6 : COPY OF APPOINTMENT ORDER No.357/08 DTD. 18.10.08. EXT. P7 : COPY OF ORDER DTD.31.10.08 ISSUED BY R3. EXT. P8 : COPY OF LAST PAY CERTIFICATE OF PROTECTED HAND DTD. 26.11.08. EXT.P9 : COPY OF ORDER No.ET3-24002/2009/DPI/K.DIS. DTD. 9.6.09. EXT. P10 : COPY OF AN APPEAL DTD.27.7.09 SUBMITTED BY PETITIONER BEFORE R1. EXT. P11 : COPY OF ORDER No.G.O.(Rt) No.940/2010/G.EDN. DTD. 4.3.10. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.37294 OF 2008 --------------------------------------- Dated this the 27th day of May, 2011. J U D G M E N T This writ petition is filed by the petitioner who is working as High School Assistant (Malayalam) aggrieved by Exts.P9 and P11 orders passed by the Director of Public Instruction and by the Government. 2. The petitioner commenced service in the 5th respondent school as UPSA on 10.11.1993 in a leave vacancy and on 11.01.1994 he was promoted as HSA (Malayalam) in a permanent post. He suffered a reversion on 01.04.1997 due to the reduction of the post of HSA (Malayalam) during the staff fixation. Later he was promoted as HSA (Malayalam) with effect from 05.06.2006 in the retirement vacancy of one Smt.P.G.Mariamma, HSA (Malayalam) by accepting his claim under Rule 43 of Chapter XIV A of Kerala Education Rules. 3. The approval of the appointment was rejected by the District Educational Officer stating that the school is a W.P.(C) No.37294/2008 2 newly/upgraded one during the year 1982-83 and therefore, all the arising vacancies are to be filled up by appointing protected teachers. Even though an appeal was filed, that was rejected. 4. In the revision petition filed by the Manager, the Director of Public Instruction directed approval of appointment of the petitioner by accepting his claim under Rule 43 and by providing a condition that the resultant vacancy should be filled up by a protected hand only. A copy of the said order has been produced as Ext.P2. It appears that the matter was again prolonged and in the meanwhile, the 3rd respondent Deputy Director of Education by Ext.P5 letter directed the Manager to appoint a protected hand in the school and the Manager, by Ext.P6, appointed one Ajith.S as Physical Education Teacher. It appears that the protected teacher has already obtained the approval and he is getting salary also. 5. This writ petition was filed by the petitioner initially seeking for a direction to approve his appointment in the light of Ext.P2. This Court, by interim order dated 20.03.2009, directed the Director of Public Instruction to consider whether the W.P.(C) No.37294/2008 3 stipulation in Ext.P2 that the petitioner's appointment as HSA (Malayalam) can be approved only on condition that the Manager appoints a protected hand, stands fulfilled in view of Ext.P6 order dated 18.10.2008 passed by the Manager appointing a protected teacher as Physical Education Teacher in the school. The order was directed to be passed within two months. Later, by Ext.P9 order, the appointment of the petitioner is approved from 01.11.2008 and thereafter, the petitioner challenged the said order before the Government by Ext.P10 revision petition. 6. This Court, by interim order dated 04.08.2009, directed the Government to take a decision on Ext.P10 after hearing the parties within two months and now Ext.P11 order has been passed by the Government. Therein also the view taken is that the appointment is eligible to be approved from 01.11.2008. 7. Learned counsel for the petitioner contends that being a claimant under Rule 43 of Chapter XIV A KER, the petitioner is entitled for approval from the date of appointment itself in the regular vacancy. My attention was invited to various provisions of Chapter XIV A KER also. It is also submitted that by a recent W.P.(C) No.37294/2008 4 Government Order, the Government has recognised the rights of claimants like the petitioner under Rule 43 and has clarified that they are entitled for preference over protected hands. A copy of the same has also been made available for perusal. The said order namely, G.O.(P) No.52/11/Gen.Edn. dated 26.02.2011 states that the only schools which have been established after 1979 or upgraded after 1979 and the said upgraded portion of the school alone are known as new schools to which Rule 6(viii) of Chapter V will apply. It is clarified further that Rule 43 claimants could be appointed in preference to protected teachers. 8. Since the Government Order has come into force only after the impugned order was passed, it is only proper that the Government reconsiders the matter in the light of the same and as it is submitted that the petitioner's case will be covered by the said Government Order. In that view of the matter, Ext.P11 order is quashed to the extent to which the petitioner is denied approval from 05.06.2006. The matter will be reconsidered in the light of G.O.(P) No.52/11/Gen.Edn. dated 26.02.2011. Appropriate W.P.(C) No.37294/2008 5 orders will be passed, after hearing the petitioner and the Manager, within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the approval of appointment from 01.11.2008 has not been interfered with. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp