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. 23202 of 2009(U) ----------------------- PETITIONER(S): --------------- SHAJI JOSEPH, PAZHAYIDATHU HOUSE, MUTHOLAPURAM P.O., MUTHOLAPURAM, ERNAKULAM DISTRICT. BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (H) DEPARTMENT SECRETARIAT ANNEXE, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER THODUPUZHA. 4. THE ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA. R1 TO R4 BY SMT. RANI DIOTHIMA, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23202 of 2009(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE APPOINTMENT ORDER DATED 06-06-2007 ISSUED BY MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM. EXT.P2 : TRUE COPY OF THE ORDER DATED 24-10-2007 PASSED BY THE 4TH RESPONDENT. EXT.P3 : TRUE COPY OF THE APPEAL DATED 13-12-2007 FILED BY THE MANAGER BEFORE THE 3RD RESPONDENT. EXT.P4 : TRUE COPY OF THE ORDER DATED 18-03-2008 PASSED BY THE 3RD RESPONDENT. EXT.P5 : TRUE COPY OF THE REVISION PETITION DATED 15-04-2008 FILED BY THE MANAGER BEFORE THE 2ND RESPONDENT. EXT.P6 : TRUE COPY OF THE ORDER DATED 10-11-2008 PASSED BY THE 2ND RESPONDENT. EXT.P7 : TRUE COPY OF THE REVISION PETITION DATED 23-12-2008 FILED BY THE MANAGER BEFORE THE 1ST RESPONDENT. EXT.P8 : TRUE COPY OF THE ORDER DATED 18-06-2009 PASSED BY THE 1ST RESPONDENT. EXT.P9 : TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH THE ORDER OF APPROVAL DATED 14-05-2008 PASSED BY THE 4TH RESPONDENT. EXT.P10 : TRUE COPY OF THE ORDER DATED 12-102-006 ISSUED BY THE 1ST RESPONDENT. EXT.P11 : TRUE COPY OF CIRCULAR DATED 18-05-2007 ISSUED BY THE 1ST RESPONDENT. EXT.P12 TRUE COPY OF THE REPLY DATED 12-03-2010 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE AMG T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.23202/2009-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of October, 2011 J U D G M E N T The approval of appointment of the petitioner as Upper Primary School Assistant having being rejected by various authorities and finally by the Government, this writ petition has been filed. 2. The petitioner was initially appointed by the Corporate Manager, Diocese of Kothamangalam in a leave vacancy for the period from 19/01/1998 to 18/03/1998 which was approved. Later, in another leave vacancy from 06/01/2000 to 06/03/2000 the petitioner was appointed and the same was also approved. 3. The petitioner's appointment under Ext.P1 was in a vacancy which arose on 06/06/2007 consequent on the promotion of one Shri Wilson Mathew as Headmaster to STLPS, Kolady. The appointment of the petitioner was made in St.Mary's U.P School, Nediyasala. The view taken in Ext.P2 by the Assistant Educational Officer for rejection of approval of appointment of the petitioner is that the vacancy in uneconomic schools W.P.(C). No.23202/2009 -:2:- can be filled up by appointing protected teachers alone and hence, there is no vacancy to provide the petitioner. In Ext.P4, the same view has been reiterated. Ext.P6 is the order passed by the Additional Director (Academic) of Public Instructions wherein the view is that the STLPS, Kolady is a newly opened and an uneconomic school. The Government finally rejected the revision petition by Ext.P8 order relying upon the Government Orders viz. G.O.(P). 178/02/G.Edn., dated 28/06/2002 and G.O.(P) 259/06/G.Edn., dated 12/10/2006. Therein, the direction is to the effect that in uneconomic schoo1s, the vacancies are to be filled up only by protected teachers. The same has been reiterated in Ext.P11 Circular also. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The learned counsel for the petitioner submitted that the schoo1 wherein the petitioner has been appointed is not an uneconomic schoo1 and, therefore, Ext.P10 Government Order and Ext.P11 W.P.(C). No.23202/2009 -:3:- Circular will not apply. It is pointed out that the appointment of the Headmaster has been approved and there is no reason to reject the approval of appointment of the petitioner. In ground 'E' of the writ petition, it is mentioned that the Manager as per letters dated 19/07/2008, 16/09/2008, 15/12/2008, 06/01/2009 and 07/02/2009 had requested the Deputy Director of Education, Thodupuzha to furnish the list of protected teachers in Idukki District but no such list has been furnished. It is also averred that there are no protected teachers in Idukki District. 6. It is therefore, contended by the learned counsel for the petitioner that as the list of protected teachers has not been communicated, the same cannot be taken as a ground to reject the approval of appointment of the petitioner. 7. In the counter affidavit filed by the first respondent what is mentioned is that the approval of appointment of Headmaster has been approved in STLPS, Kolady from 04/05/2005 onwards subject to the condition that the resultant vacancy due to the promotion of W.P.(C). No.23202/2009 -:4:- Headmaster should be filled up by appointing a protected teacher but the Manager has not implemented the same. In para.7, it is further mentioned that the Deputy Director of Education, Idukki has directed the Manager, Diocese of Kothamangalam to reserve one post to accommodate a protected teacher. 8. The fourth respondent has filed a counter affidavit wherein in para.9 it is mentioned that in reply to ground 'E' of the writ petition vide letter No.B5/10488 dated 10/02/2009 the Manager, Diocese of Kothamangalam was directed to reserve one post in each school to provide a protected teacher. The names of three protected teachers have been mentioned in the said paragraph. It is further averred that Shri Jose Paul placed at serial No.1 was available at the time of appointment of the petitioner. 9. Ext.P12, produced by the petitioner is a reply given under the Right to Information Act by the Deputy Director of Education, Thodupuzha which shows that the protected teachers who were available have been deployed to other schoo1s. W.P.(C). No.23202/2009 -:5:- 10. The learned counsel for the petitioner submitted that the reason stated, that the Government Order Ext.P10 and the Circular Ext.P11 will stand in the way of the approval, is not correct. It is contended that the schoo1 to which the petitioner has been appointed is not an uneconomic one and that position is not disputed in the counter affidavit. 11. True that, while approving the appointment of the Headmaster by Ext.P9 order, a condition has been specified that the vacancy due to promotion will be filled up by the Manager by a protected teacher as per G.O.(P).No.259/06/G.Edn., dated 12/10/2006. But herein, it can be seen that the petitioner is appointed in St.Mary's U.P.S, Nediasala. The obligation of the Manager to appoint protected hands arises only if the Department Officials communicates the list of protected teachers with specific directions in that regard. There is nothing to show that list of protected teachers was communicated to the Manager at any time prior to 10/02/2009. It is evident from para.9 of the counter affidavit filed by the fourth respondent that W.P.(C). No.23202/2009 -:6:- the direction issued to the Manager is as per letter No.B5/10488 dated 10/02/2009. The averments in para.9 of the counter affidavit is in answer to the contentions raised in ground 'E' of the writ petition. 12. This Court has repeatedly taken the view that unless the list of protected teachers has been communicated to the Manager, the Manager cannot be faulted for not appointing a protected hand. In ground No.'E' it has been averred that various letters dated 19/07/2008, 16/09/2008, 15/12/2008, 06/01/2009 and 07/02/2009 have been addressed by the Manager to the Deputy Director of Education, Thodupuzha to furnish the list of protected teachers in Idukki District and, the same has not been denied in the counter affidavit filed by the respondents. As is clear from para.9 of the counter affidavit of the fourth respondent, a communication was issued only on 10/02/2009. In that view of the matter, the Manager cannot be faulted for not appointing a protected hand. 13. In Nadeera v. State of Kerala [2011 (3) KLT 790], this Court has considered the obligation of the Manager in W.P.(C). No.23202/2009 -:7:- similar circumstances. In para.10 onwards various Government Orders have been discussed and in para.15 it has been held thus:- “15. I find nothing therein which prevents approval of appointment or which postpones the approval till a protected hand is appointed by the Manager. The said Government Order restate the obligation of the Manager to appoint a protected hand. But the time factor is not mentioned therein. In many cases, availability of protected hands may be delayed and non-availability of protected hands in certain posts may be there. Therefore, to compel a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by the staff fixation order will go against the scheme of the Act and Rules itself. When the staff fixation order permits appointment of required number of staff, the Manager will have to make the appointment in existing vacancies and exercise of the power W.P.(C). No.23202/2009 -:8:- of the Manager in such cases cannot be said to be against the scheme of the Act. In fact the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Manager, M.M.H.S. V Deputy Director(1994(1) KLT 321) taking the view that actually it is the duty of the Manager to fill up all the posts in accordance with the orders of the educational authorities fixing the staff strength. Various Judgments of this Court, taking the view that the list of protected teachers has to be communicated, have been discussed in the said Judgment. 14. In the Judgment in W.P.(C).No.8039/2008 also a similar question was considered and in para.5, after noticing that the list of protected teachers has not been communicated, this Court has directed the approval of appointment of the petitioner therein. Similar is the position herein also. But still in the light of the communication dated 10/02/2009, the Manager will W.P.(C). No.23202/2009 -:9:- have to appoint a protected teacher in any of the vacancies arising thereafter. 15. Therefore, the writ petition is allowed. The impugned orders Ext.P2 as confirmed by Exts.P4, P6 and P8 are quashed. There will be a direction to the fourth respondent to approve the appointment of the petitioner as Upper Primary Schoo1 Assistant in terms of Ext.P1 order of appointment. He will be granted the monetary benefits also. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms