IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 WP(C).No. 1075 of 2011(H) ------------------------------- PETITIONER: -------------- MUHAMMED MUSTHAFA.C.A, AGED 25 YEARS, S/O.ABDUL LATHEEF, CLERK, VAVAR MEMORIAL HIGH SCHOOL, ERUMELI, RESIDING AT CHACKALACKAL HOUSE, ERUMELI P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.K.ABDUL JAWAD SMT.S.GIFFARA RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 4. DISTRICT EDUCATION OFFICER, KANJIRAPPALLY, KOTTAYAM DISTRICT. 5. MANAGER, VAVAR MEMORIAL HIGH SCHOOL, ERUMELI, KOTTAYAM DISTRICT. BY ADVS. SRI.P.A.MOHAMMED SHAH FOR R5 SRI. V. VIJULAL, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1075/2011 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER DTD. 2.6.08. EXT. P2 : COPY OF G.O.(P) No.46/06/G.EDN. DTD. 1.2.06. EXT. P3 : COPY OF LETTER ISSUED BY R5 TO R3. EXT. P4 : COPY OF LETTER ISSUED BY R3 TO R5 DTD. 14.7.09. EXT. P5 : COPY OF COMMUNICATION BY R3 DTD. 30.7.10. EXT. P6 : COPY OF LETTER ADDRESSED TO R5 BY SMT.SHILAJA.A DTD. 19.10.10. EXT. P7 : COPY OF LETTER ADDRESSED TO R3 BY R5. EXT. P8 : COPY OF LETTER ISSUED BY R3 TO R5 DTD. 13.11.08. EXT. P9 : COPY OF ORDER DTD. 31.03.2009 PASSED BY R4. EXT. P10 : COPY OF ORDER DTD. 16.6.09 ISSUED BY R3. EXT. P11 : COPY OF ORDER DTD. 23.6.10 ISSUED BY R2. EXT. P12 : COPY OF REPRESENTATION BEFORE GOVT. ON 5.7.10 BY R5. EXT. P13 : COPY OF CIRCULAR DTD. 19.11.09 ISSUED BY R2. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.1075 OF 2011 --------------------------------------- Dated this the 6th day of July, 2011. J U D G M E N T This writ petition is filed by the petitioner who has been denied approval of appointment in the post of Clerk in the school managed by the 5th respondent. The consistent objection taken by the Department is that the Management has not appointed a protected teacher and therefore, only after the said appointment is made, the appointment of the petitioner could be approved. 2. It is submitted by the learned counsel for the petitioner that for non appointment of a protected teacher, the approval of appointment of Clerk in the school need not be withheld. Apart from it, it is pointed out that herein the Manager had on several occasions pointed out his willingness to appoint a protected teacher but so far the Department could not deploy a proper W.P.(C) No.1075/2011 2 person for appointment as protected teacher. It is, therefore, submitted that the postponement of approval indefinitely as far as the petitioner is concerned cannot be legally justified. The bare facts necessary for the disposal of the writ petition are the following. 3. Ext.P1 is the copy of the appointment order of the petitioner which is dated 02.06.2008. The appointment was made in a permanent vacancy which arose due to the retirement of one Sri.K.S.Abdul Khabeer as Lower Division Clerk. Ext.P9 is the order passed by the 4th respondent District Educational Officer rejecting the approval and the reason shown therein is that the vacancy set apart for protected teacher has not been filled up by the Manager till date. This was challenged before the Deputy Director of Education in appeal which was also rejected as per Ext.P10. Ext.P11 is the order passed by the Director of Public Instruction in a revision petition filed by the Manager. Finally, the matter was taken up before the Government by the Manager as per Ext.P12 in a further revision which is said to be W.P.(C) No.1075/2011 3 still pending. 4. As already noticed, the plea raised by the petitioner is that the approval cannot be withheld for non appointment of a protected teacher. With regard to the same, the petitioner has pointed out in paragraph 3 of the writ petition that by Ext.P3 the Manager had informed the Deputy Director of Education that one post of H.S.A (Malayalam) is kept vacant for providing a protected teacher that too in a retirement vacancy which arose from 31.03.2007 of one Smt.Mary Abraham, H.S.A (Malayalam). 5. It appears that one Sri.P.J.John, H.S.A (Malayalam) was deputed by the Deputy Director of Education but he did not join the school even though the Manager was willing to appoint him and by Ext.P4 the Deputy Director of Education informed the Manager that the said person has availed Leave Without Allowance upto 31.10.2010 and hence he is not available. The proposal thereafter made was to deploy one Smt.C.D.Rosamma, H.S.A (Malayalam) of A.S.H.S Puthayam in Kollam District. But therein also difficulty arose as the said teacher was W.P.(C) No.1075/2011 4 accommodated in the parent school itself as evident from Ext.P5 communication dated 30.07.2010 issued by the Deputy Director of Education, Kollam to the Deputy Director of Education, Kottayam. Later one Smt.Shilaja.A, H.S.A (Malayalam) in the Government High School, Vazhamuttom was appointed who also did not join and she requested the Manager to withdraw the order of appointment for various reasons pointed out therein. She was working in Thiruvananthapuram District. 6. The Manager thereafter, by Ext.P7, informed the Deputy Director of Education, Kottayam that the post of H.S.A (Malayalam) has been kept vacant for providing a protected teacher and he is willing to appoint a protected teacher and since the protected teacher from the list provided by him was on leave upto 31.10.2010, he requested the Deputy Director of Education to grant No Objection Certificate to approve the appointment of the Lower Division Clerk. This was refused as per Ext.P8 by pointing out that in the vacancy earmarked for the protected teacher, an appointment on daily wage basis can be made. W.P.(C) No.1075/2011 5 7. One of the points raised by the petitioner is that on a reading of Ext.P13 circular issued by the Government, it can be seen that the prohibition if any for approval of appointment is only in respect of a teaching post and not in respect of approval of appointment of a non teaching staff. 8. As directed by this Court, a statement has been filed by the 3rd respondent. The statement filed by the 3rd respondent also confirms the facts pleaded in the writ petition with regard to the earmarking of the vacancy of H.S.A (Malayalam) for appointing a protected teacher. It is evident from paragraph 4 of the statement that Sri.P.J.John, protected H.S.A could not join duty since he has been granted Leave Without Allowance from 01.11.2005 to 31.10.2010. Again it is reiterated that the 5th respondent appointed one Smt.C.D.Rosamma, H.S.A (Malayalam) but she had been retained in a regular vacancy in the post of H.S.A (Malayalam) in the parent school. 9. Lastly, it is mentioned that even though one Smt.A.Shailaja, protected H.S.A (Malayalam), Government H.S., W.P.(C) No.1075/2011 6 Vazhamattom was deployed, she did not join duty and instead she filed a representation before the Director of Public Instruction, Thiruvananthapuram and the Director of Public Instruction allowed her to continue in the Government H.S, Vazhamattom and further directed the office of the Deputy Director of Education to deploy Sri.P.J.John who was on Leave Without Allowance upto 31.10.2010. It appears that the said teacher has applied for extension of Leave Without Allowance from 01.11.2010 to 31.10.2015 and the said application is still pending and he has not rejoined duty. 10. It is evident from paragraph 9 of the statement that there were no protected clerks waiting for deployment in the list of protected hands prepared by the 3rd respondent for the years from 2007-2008 to 2009-2010. There is nobody under this category awaiting deployment in the list prepared for the year 2010-2011 also. 11. Therefore, as on today, the factual scenario shows that even though the Manager has earmarked the vacancy of H.S.A W.P.(C) No.1075/2011 7 (Malayalam) for absorption of a protected teacher, because of various reasons pointed out above, the protected hand could not be deployed. Hence the Manager cannot be found fault with for the non-availability of a protected teacher. 12. Evidently, going by the averments in the statement filed on behalf of respondents, no protected Clerk is available for deployment from the year 2007-2008 onwards. The petitioner was appointed against the vacancy which arose on 31.12.2007. Therefore, as on the date of appointment of the petitioner, no protected Clerk is available for deployment. Whether the appointment and the consequent approval of non teaching staff can be kept in abeyance till the Manager complies with the obligation to accommodate a protected hand is the point argued by the learned counsel for the petitioner. Herein, the said issue need not deter the authorities from approving the appointment of the petitioner since evidently no protected Clerk is available and secondly it is not a case where the Manager is unwilling to appoint a protected teacher. It is only because of the non W.P.(C) No.1075/2011 8 availability of a suitable hand for deployment as H.S.A (Malayalam) that the Manager is unable to comply with the obligation. Therefore, the present situation has arisen not due to any inaction on the part of the Manager. 13. The petitioner is appointed in a retirement vacancy. There is no dispute about his qualification as well as the eligibility. In that view of the matter, the petitioner is entitled for approval of appointment. Evidently, the post of H.S.A (Malayalam) which is vacant from 31.03.2007 has been earmarked for appointment of a protected teacher and that will be filled up by the Manager only by appointing a protected hand deployed by the Deputy Director of Education. For all the above reasons, the petitioner is entitled to succeed in the writ petition. The impugned orders Exts.P9 to P11 are quashed. It is declared that the petitioner is entitled for grant of approval of appointment, in the retirement vacancy which arose on 31.12.2007. There will be a direction to the 4th respondent to approve the appointment of the petitioner in terms W.P.(C) No.1075/2011 9 of the appointment order issued and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. In the light of the above direction, it is not necessary to pass orders on the revision petition filed by the Manager before the Government as per Ext.P12. On grant of approval, consequential monetary benefits will be disbursed to the petitioner within a further period of two months. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp