IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 10621 of 2008(M) ------------------------------------- PETITIONER(S): ------------------------ MAJEED KAKKOOTTATHIL, S/O.ABDULLA, AGED 39 YEARS, PHYSICAL EDUCATION TEACHER, K.P.E.S. HIGH SCHOOL, KAYAKKODI, VADAKARA, KOZHIKODE DISTRICT. BY ADVS.MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT. 4. THE MANAGER, K.P.E.S. HIGH SCHOOL, KAYAKKODI, VADAKARA, KOZHIKODE DISTRICT. BY GOVERNMENT PLEADER SMT.T.T.MUHAMOOD FOR R1-3 BY ADV. MR.P.S.SIDHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON 02/06/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.10621/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER IN CMP. 8939/96 IN OP. 5139/96. ST. 22.3.96. P2:- COPY OF THE APPOINTMENT ORDER DT. 4.7.94. P3:- COPY OF THE GO(RT) NO.4670/05/G.EDN. OF THE GOVERNMENT DT. 4.10.05. P4:- COPY OF THE REVIEW PETITION FILED BEFORE THE GOVERNMENT DT. 3.12.05. P5:- COPY OF THE GO(RT) NO.3803/06/G.EDN. OF THE GOVERNMENT DT. 26.8.06. P6:- COPY OF THE LETTER NO.390/K3/07/G.EDN OF THE GOVERNMENT DT. 22.1.07. P7:- COPY OF THE APPOINTMENT ORDER OF SMT.SOUDHA DT. 19.2.04. P8:- COPY OF THE GO(RT) 3776/06/G. EDN. OF THE GOVERNMENT 24.8.06. P9:- COPY OF THE LETTER NO.390/K2/07/G. EDN. OF THE GOVERNMENT 6.3.08. P10:- COPY OF THE JUDGMENT IN OP. NO.5258/04 DT. 10.11.06. RESPONDENT'S EXHIBITS NIL. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.10621 of 2008-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2009. JUDGMENT The petitioner is aggrieved by the order, Ext.P3 by which the request of the petitioner to regularise his appointment has been refused. The petitioner was appointed as a Physical Education Teacher with effect from 4.7.1994 in the vacancy of Shri K.A. Abdul Salam who resigned from the school on 30.3.1994. The approval of appointment was rejected on the ground that being a newly opened school, the vacancy should be filled up by protected teachers. This was challenged in O.P.No.5139/1996, wherein as per Ext.P1 interim order, the respondents were directed to approve the appointment of the petitioner and pay the salary until further orders. Accordingly, approval was granted as per Ext.P2. Finally, as per judgment dated 21.3.2001 the writ petition was disposed of in the light of the principles stated by this court in the judgment in O.P.No.7312/1991 and connected cases. 2. It is the case of the petitioner that without hearing the petitioner and without following the principles stated in the above judgment, Ext.P3 order happened to be issued. This was sought to be reviewed by the wpc 10621/2008 2 petitioner by Ext.P4 review petition. In fact, the Government had approved the appointment of another teacher, viz. Shri A.K.Suresh who was also a party to the interim order, Ext.P1. The order passed by the Government in respect of the said teacher is produced as Ext.P5. Therein, the Government was pleased to direct regularisation of appointment subject to the condition that the Manager of the school shall execute an agreement in stamp paper to the effect that the next arising vacancy would be filled up only by appointing a protected teacher. Ext.P7 is the order granting approval of appointment in respect of another High School Assistant (Arabic), with the same condition. 3. The petitioner has produced Exts.P8 and P9 Government Orders, whereby the government has relaxed the conditions stipulated as far as the absorption of protected teachers are concerned. In the light of these Government Orders, learned counsel for the petitioner submitted that the petitioner's appointment is liable to be regularised. The petitioner is also relying upon the decision of this court in Sivankutty Nair v. Secretary to Government and another (ILR 2005 (3) Ker. 118) and the judgment in O.P.No.5258/2003, produced as Ext.P10. 4. Heard learned counsel for the petitioner and the learned Govt. Pleader. 5. A resume of facts will show that in the judgment in O.P. No. wpc 10621/2008 3 5139/1996, there was a direction to dispose of the matter in the light of the judgment in O.P.No.7132/1991. Therein, this court directed the Government to take a decision in the light of the present situation and also in the light of the subsequent rules and orders. In fact, the said judgment is seen relied upon in the case of Shri A.K. Suresh, whose appointment has been directed to be regularised as per Ext.P5 by the Government itself. The only condition imposed therein is that the manager of the school shall execute an agreement in stamp paper to the effect that the next arising vacancy would be filled up only by appointing a protected teacher. The petitioner was appointed earlier than Shri A.K. Suresh, in the school. The petitioner is also entitled for a similar treatment. Ext.P7 is the order passed in respect of another High School Assistant, wherein also the same conditions have been imposed. The reasons shown to single out the petitioner are not sustainable. 6. Ext.P8 is the order passed by the Government regarding the appointment of protected teachers. Going by sub para (ii) of para 3.2, the stipulation provided is that “the Educational Officers will include the names of protected teachers to be approved by the managers in arising vacancies in the staff fixation order itself.” 7. In the light of the above and in the light of the fact that it is the obligation of the manager to appoint a protected teacher in the arising wpc 10621/2008 4 vacancies, the regularisation of the appointment of the petitioner cannot be denied. The learned counsel for the Manager submitted that such a course can be adopted. Therefore, the writ petition is allowed. Ext.P3 and P9 are quashed. There will be a direction to regularise the service of the petitioner subject to the condition that the manager of the school shall execute an agreement in stamp paper to the effect that the the next arising vacancy will be filled up only by appointing a protected teacher, which course has been agreed to by the learned counsel for the manager before this court. There will be a further direction to release the admissible salary and the other benefits due to the petitioner from December 2005 onwards, within a period of two months from the date of receipt of a copy of this judgment. The third respondent will pass appropriate orders within the above period regularising the appointment of the petitioner. (T.R. Ramachandran Nair, Judge.) kav/