IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 WP(C).No. 34013 of 2009(V) -------------------------- PETITIONER(S): --------------- SOUMYA.E.K., L.P.S.A., H.M.T.E.S. HIGH SCHOOL, KALAMASSERY. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM SRI.JIJI THOMAS RESPONDENT(S): --------------- 1. THE DISTRICT EDUCATIONAL OFFICER, ALUVA. 2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 4. THE STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 5. THE MANAGER, H.M.T.E.S. HIGH SCHOOL, KALAMASSERY. ADV. SRI.THOMAS GEORGE FOR R5 GOVERNMENT PLEADER FOR R1-4 SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF ORDER DT.20.11.1979 EXT.P2-TRUE COPY OF ORDER DT.31.10.2000 EXT.P3-TRUE COPY OF ORDER OF APPOINTMENT ALONG WITH APPROVAL GRANTED BY THE DEO EXT.P4-TRUE COPY OF LETTER DT.4.12.2004 EXT.P5-TRUE COPY OF ORDER DT.16.8.2005 EXT.P6-TRUE COPY OF ORDER DT.8.6.2005 EXT.P7-TRUE COPY OF COMMUNICATION DT,8.6.2006 EXT.P8-TRUE COPY OF LETTER DT.1.6.2007 EXT,P9-TRUE COPY OF COMMUNICATION DT.8.10.2009 EXT.P10-TRUE COPY OF THE CIRCULAR DT.1.2.2006 EXT.P11-TRUE COPY OF COMMUNICATION DT.26.9.2009 EXT.P12-TRUE COPY OF APPOINTMENT ORDER DT.26.7.2003 EXT.P13-TRUE COPY OF GO DATED 1.9.1998 EXT.P14-TRUE COPY OF APPOINTMENT ORDER DT.2.6.2004 EXT.P15-TRUE COPY OF DO. DATED 2/6/2003 EXT.P16-TRUE COPY OF DO. DATED 2.6.2003 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34013 of 2009-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2011. JUDGMENT The petitioner is working as an L.P.S.A. in H.M.T. E.S.H.S., Kalamassery. Her grievance is regarding the non approval of her appointment and also the cancellation of approval of an earlier appointment already granted. 2. The school in question was established as an unaided one in the year 1976. It appears that the school was upgraded in September, 1979 as a High School. It became an aided school as per order dated 31.10.2000. The petitioner was initially appointed as L.P.S.A. on 21.11.2003, which was granted approval as per Ext.P3 order and she was later appointed in a fresh vacancy on 31.5.2004. The approval of the same was declined by Ext.P4. During this period a proposal was made to cancel the first appointment itself. Ext.P4 was taken up by the Manager in appeal before the Deputy Director of Education who also rejected the same as per Ext.P5 order. Ext.P6 is the order by which the Director of Public Instruction had withdrawn the grant of approval given of the first appointment and the Government also concurred with the same by Ext.P7. The view taken WPC.34013/2009 2 apparently in various orders is that the vacancies will have to be filled up protected teachers. 3. It is pointed out that Exts.P8 and P9 will show that on the basis of the request made by the Manager, a protected hand was appointed in terms of Ext.P10 Government Order. Learned counsel for the petitioner submitted that there was no condition stipulating that the vacancies should be filled up protected hands, when the school was converted as an aided school, by Ext.P2 order. It is also the case of the petitioner that the Manager has not executed any agreement as contemplated under Rule 6 (viii) of Chapter V K.E.R. It is further submitted that Clause 4 of Ext.P2 will show that the existing teachers and non teaching staff of the school can be retained in the school provided they are having the qualifications prescribed under the Kerala Education Rules. 4. The main question, therefore, is whether the action taken to cancel the appointment of the petitioner and to reject the approval of appointment made as per Ext.P14, is justified. Evidently, when Ext.P14 appointment was made, the petitioner was a claimant under Rule 51A of Chapter XIV-A K.E.R. Two questions arise herein for consideration. First is: whether the entire vacancies will have to be filled up by protected hands. Learned counsel for the petitioner, in this context, invited my attention to the WPC.34013/2009 3 approval of appointment of other teachers of the schools as evident from Exts.P12, P15 and P16 orders. The appointees under Exts.P15 and P16 are also claimants under Rule 51A of Chapter XIV-A K.E.R. It is further pointed out that as regards those teachers, no objection has been taken that vacancies will have to be filled up by protected hands. 5. Evidently, the said argument is of much force. When the respondents take a stand as against the petitioner that the vacancy will have to be filled up by a protected teacher, in respect of other teachers such an insistence is not made. There cannot be any discrimination as regards the appointees of the same school who have to be treated similarly. Apart from the same, the Manager has already appointed a protected hand, as evident from Exts.P9 and P10. In Ext.P10, the obligation of the Manager for appointment of a protected hand is at least one. It is not a case where there is any refusal on the part of the Manager to appoint a protected hand. There is no plea that as on the date of appointment of the petitioner initially as per Ext.P3, or when Ext.P14 appointment was made, a list of protected hands was communicated to the Manager of the school. Therefore, in the absence of such a plea, it cannot be said that the Manager has committed any fault in not appointing a protected hand. This legal position is clear from the judgment of this Court in Nadeera T.S. and another v. State of Kerala WPC.34013/2009 4 and others (2011 (3) KLT 790). 6. Herein, the petitioner was a Rule 51A claimant when the appointment as per Ext.P14 was made. Going by the provisions of Rule 51A, the petitioner's preference for appointment will not be lost if a protected hand from the same school is not available. The second proviso therein only confers benefit of preference to a protected hand from the same school. The same is not the case herein and it is not a plea by the respondents that a protected hand from the same school is available. Evidently, the school was taken over by the Government only by Ext.P2. Therefore, the question of availability of any protected hand at that time is also not there. 7. Therefore, the question is whether the cancellation of the approval of appointment for the first time, is justified. Going by the principles stated in Nadeera's case (2011 (3) KLT 790) the approval of appointment for the first time also was perfectly in order. Therefore, the impugned orders cannot survive. Exts.P4 to P7 and P11 are thus quashed. 8. It is declared that the petitioner's appointment as per Ext.P3 and its approval are perfectly valid. Consequently, the proposal made in Ext.P14 for approval of appointment will be granted within a period of six weeks from the date of receipt of a copy of this judgment and the monetary WPC.34013/2009 5 benefits will also be disbursed to the petitioner, expeditiously. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/