IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 WP(C).No. 8553 of 2009(L) -------------------------------------- PETITIONER(S): ------------------------- SARITHA.G, W/O.SOMARAJAN PILLAI, AGED 29 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, M.V.L.P.S., MANTHARA, EDAVA, VARKALA, RESIDING AT PULIYANGAZHIKATHUVEEDU, THOTTAKKAD PO. KALLAMPALAM, THIRUVANANTHAPURAM. BY ADVS. SMT.REKHA VASUDEVAN, SRI.K.R.PAUL. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT.,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL. 5. THE ASSISTANT EDUCATIONAL OFFICER,VARKALA. 6. THE MANAGER, M.V.L.P.S.,MANTHARA, EDAVA, VARKALA. R1 TO R5 BYSR. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R6 BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.8553/2009 L APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER ISSUED BY THE 6TH RESPONDENT. P2: COPY OF THE ORDER NO.D-2000/04/L.DIS. DTD. 22/01/2005 ISSUED BY THE 5TH RESPONDENT. P3: COPY OF THE ORDER NO.B1-749/05/K.DIS. DTD. 20/04/2006 ISSUED BY THE 4TH RESPONDENT. P4: COPY OF THE ORDER NO.D/665/06 DTD. 6/06/2006 ISSUED BY THE 5TH RESPONDENT. P5: COPY OF THE APPEAL DTD. 14/06/2006 SUBMITTED BY THE 6TH RESPONDENT TO THE 2ND RESPONDENT. P6: COPY OF THE ORDER NO.F1/65476/06/DPI/K.DIS. DTD. 17/11/2006 ISSUED FOR THE 2ND RESPONDENT. P7: COPY OF REVISION PETITION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT. P8: COPY OF THE ORDER NO.D/2499/06 DTD. 9/01/2007 ISSUED BY THE 5TH RESPONDENT. P9: COPY OF THE G.O.(RT) NO.39823/07/G.EDN.DTD. 22/08/2007 ISSUED BY THE 1ST RESPONDENT. P10: COPY OF THE G.O.(P) 178/2002/G.EDN.DTD. 28/06/2002 ISSUED BY THE 1ST RESPONDENT. P11: COPY OF THE LETTER NO.39506/H1/08/G.EDN. DTD. 20/09/2008 ISSUED BY THE 1ST RESPONDENT TO THE 6TH RESPONDENT. RESPONDENT'S ANNEXURE: ANNE.R2(A): LIST OF PROTECTED TEACHERS RECEIVED FROM DDE, THIRUVANANTHAPURAM. /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.8553/2009-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of March, 2011 J U D G M E N T Aggrieved by the rejection of the approval of appointment of the petitioner as L.P.S.A, the writ petition is filed. 2. Even though appeals and revisions were filed, the petitioner did not succeed in getting the appointment approved, mainly for the reason that the Manager did not appoint a protected teacher. 3. Ext.P1 is the order of appointment of the petitioner, which was issued on 22/07/2004 against the vacancy of one Shri R.Radhakrishnan who took voluntary retirement on 07/06/2004. According to the petitioner, it was actually against the promotion vacancy of one Smt.K.Indira Bai Amma. The approval was rejected for the reason that the promotion of Smt.K.Indira Bai Amma was not sanctioned and Ext.P2 is the copy of the said order. But, when the revision petition was filed, it ended in favourable order as per Ext.P3 wherein a direction was issued to approve the appointment of the W.P.(C). No.8553/2009 -:2:- petitioner with effect from 22/07/2004 as the promotee's appointment was also approved. Thereafter, the impugned order was passed whereby the approval was refused again. Exts.P4, P6 and P7 are the orders passed in appeal and revision. 4. The learned counsel for the petitioner submitted that herein the Department did not communicate any list of protected teachers, admittedly, during the period of her appointment. It is pointed out that as per the Government Order which was issued in 2002, namely, Ext.P10, [G.O.(P) No.178/2002/G.Edn., dated 28/06/2002], it is specified in paragraph (i) that 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. That was not complied with and, therefore, the said reason cannot be raised against the petitioner. The learned counsel for the petitioner invited my attention to the averment in paragraph (8) of the counter affidavit filed by the second respondent wherein it is stated W.P.(C). No.8553/2009 -:3:- that a list of protected teacher issued from the third respondent had been circulated to the Manager on 09/01/2007 with the direction that one protected teacher should be appointed in the school (Ext.P8). A further contention taken therein is that at the time of appointment of the petitioner, Circular No.74101/J2/04/G.Edn., dated 24/01/2005, directing the Educational Officers to furnish the list of protected teachers to the Manager was not in force. The learned counsel for the petitioner, therefore, contended that the refusal to approve the appointment cannot be justified. Reliance is placed on the decision of the learned Single Judge of this Court in W.P.(C). No.36776/2007 wherein, this Court after considering paragraph (i) of Ext.P10 Government Order, and on an appreciation of the facts of the case, directed that as the list was not furnished to the Manager the appointment is liable to be approved. 5. The learned Government Pleader submitted that for the first time, the obligation of the Department to W.P.(C). No.8553/2009 -:4:- forward the list of protected teachers was specified in Circular dated 24/01/2005. 6. Evidently, in paragraph (i) of Ext.P10, it is stipulated that 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. The learned Single Judge in W.P.(C). No.36776/2007 held as follows:- “Even then the Manager of respective schools may not be in a position to know whether there are protected hands available for appointment. That is the reason why in the order dated 28/06/2002 the Deputy Director of Education concerned is entrusted with the duty to make available district-wise and category wise list of protected teachers to each and every Managers. The order is so clear that there is necessity to appoint protected hands. The Managers are not in a position to appoint protected hands unless and W.P.(C). No.8553/2009 -:5:- until they are made available the category- wise and district-wise list of protected hands.” On finding that the authority did not made available district-wise and category-wise list of protected Full- time Menials, though they were bound to do so, this Court directed that the approval has to be granted. 7. Herein also the position is same. The list was circulated only in 2007. In that view of the matter, it cannot be said that the Manager had failed in his duty to appoint a protected hand. As far as the school is concerned, the Manager had appointed a protected hand in the year 1979 and she continued in service till retirement in 1993. Against the vacancy caused by the retirement of the protected teacher, Manager appointed Smt.Jayasree as L.P.S.A. The said appointment was approved by the Department as evident from paragraph (7) of the counter affidavit filed by the second respondent. In that view of the matter also, the rejection of the approval of the petitioner's appointment cannot be justified. But the Manager has W.P.(C). No.8553/2009 -:6:- an obligation to appoint a protected teacher as the personnel appointed in 1979 retired from service in a future vacancy. 8. In that view of the matter, the writ petition is allowed. The impugned orders Exts.P4, P6, P9 and P11 are quashed and it is declared that petitioner's appointment as per Ext.P1 is liable to be approved. There will be a direction to the fifth respondent to approve the appointment of the petitioner in the light of the findings rendered above and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this Judgment and the consequential benefits will also be released to the petitioner. There will be a further direction to the Manager to appoint a protected hand in the next arising vacancy in the school. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms