IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 WP(C).No. 10037 of 2011(D) -------------------------- PETITIONER(S): --------------- SADIQALI MADATHIL KUNNETH S/O.HYDER, AGED 34 YEARS, HIGH SCHOOL ASSISTANT (URDU), NAROKAVU HIGH SCHOOL, NAROKAVU, POST KUNNUMMEL POTTY, MALAPPURAM. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMNT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM-695 014. 3. THE DEPUTY DIRECTOR OF EDUCATION, DOWN HILL, POST MALAPPURAM-676 519. 4. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM-679 328. 5. THE MANAGER, NARAKAVU HIGH SCHOOL, NAROKAVU, POST KUNNUMMEL POTTY, MALAPPURAM DISTRICT-679 331. ADV. SRI.V.K.GOPALAKRISHNAN FOR R5 GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10037 of 2011 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER. EXT.P2 TRUE COPY OF THE ORDER NO.K.DIS A4/3680/09 OF THE DISTRICT EDUCATIONAL OFFICER EXT.P3 TRUE COPY OF ORDER NO.K.DIS B2/33667/09 OF THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF GO MS NO.371/2000/G.EDN. OF THE GOVERNMENT. EXT.P5 TRUE COPY OF THE INFORMATION NO.A5/5735/10 OF THE DEO EXT.P5(a)TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC 19979/2008 EXT.P6 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT BY THE MANAGER. EXT.P7 TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC 30403/2010 EXT.P8 TRUE COPY OF THE HEARING NOTE OF THE PETITIONER. EXT.P9 TRUE COPY OF GO RT NO.715/11/G.EDN. OF THE GOVERNMENT. EXT.P10 TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC 2563/2008 EXTS. OF RESPONDENTS NIL \\TRUE COPY// P.A.to Judge T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.10037/2011-D ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of October, 2011 J U D G M E N T The petitioner's appointment as High Schoo1 Assistant (Urdu) in the schoo1 managed by the fifth respondent has not been approved so far. Initially, the objection taken as per Ext.P2 order is that the post sanctioned in the staff fixation order for 2009-10 is part-time H.S.A (Urdu). The petitioner was appointed in a retirement vacancy which occurred on 31/03/2009 and the appointment is effective from 01/06/2009 as evident from Ext.P1 order. In the appeal filed by the Manager, the Deputy Director of Education was of the view that a protected teacher ought to have been appointed against the vacancy as the schoo1 belongs to the category of newly opened schoo1s. Thereafter, the petitioner filed a revision petition before the Government. Finally, by Ext.P9 order, the revision petition has been disposed of. What is ordered in Ext.P9 is that the H.S.A (Urdu) (Full-time) is restored in the schoo1 by diverting 3 periods of W.P.(C). No.10037/2011 -:2:- Group 'C' subjects, if sufficient periods are available for diversion. But the request for approval of appointment has been rejected stating that no protected teacher has been appointed in the schoo1. The petitioner mainly contends that in the category of H.S.A (Urdu) no protected teacher is available in the Educational District and in that context Ext.P5, which is the reply given under the Right to Information Act, has been produced. In answer to the question whether any H.S.A (Urdu) protected teachers are available it is answered that nobody is available in that category. It is further submitted that the Manager has earmarked a post of H.S.A (Sanskrit) for appointment of a protected teacher and as no protected hand is available, the appointment could not be made. Therefore, what is contended is that the Manager cannot be faulted for not appointing a protected teacher. 2. The third respondent has filed a counter affidavit wherein in para.5 it is mentioned that the Manager has reserved a post of H.S.A (Sanskrit) for appointing a protected teacher. As there is no W.P.(C). No.10037/2011 -:3:- protected teachers available in the category of H.S.A (Sanskrit) in Malappuram District, no protected teacher has joined the schoo1 till date. It is further averred that it being a newly opened schoo1, the Manager will have to appoint a protected teacher in the schoo1. 3. Evidently, therefore, the position that emerges is that no protected H.S.A (Urdu) is available in the entire district for deployment, at the time of appointment of the petitioner or thereafter. 4. In the above context, the learned Government Pleader also produced before me for perusal a fax message from the office of the Deputy Director of Education dated 04/07/2011 wherein the details of protected teachers as on 01/06/2009 have been forwarded to the office of the Advocate General. The names of six teachers under different categories as H.S.A (S.S), H.S.A (S.S), H.S.A (Mal), H.S.A (Mal), H.S.A (S.S) and H.S.A (Sanskrit) have been mentioned and all of them have been deployed to various schools and obviously therefore, there is no H.S.A (Urdu) or H.S.A (Sanskrit) for deployment to the schoo1 herein. Even though the W.P.(C). No.10037/2011 -:4:- third respondent has relied upon Circular No.38929/J1/2009/G.Edn., dated 19/11/2009 specifying that approval can be made only from the date of appointment of a protected hand, herein the appointment is prior to it i.e. on 01/06/2009. Hence, the said objection cannot survive. 5. In that view of the matter, the approval of appointment of the petitioner could not have been rejected for non appointment of a protected hand, as it is not a case of inaction on the part of the Manager or refusal on his part to appoint a protected hand. 6. Therefore, the writ petition is allowed. The impugned orders Exts.P2, P3 and P9 are quashed to the extent to which there is a refusal to approve the appointment of the petitioner. Since by Ext.P9 the Government has restored the full-time post, all the aspects will be considered by the fourth respondent and appropriate orders will be passed granting approval of appointment to the petitioner within a period of two months from the date of receipt of a copy of this Judgment. It is made clear that the petitioner is W.P.(C). No.10037/2011 -:5:- entitled for consequential monetary benefits also. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms