IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 19TH DAY OF NOVEMBER 2011/28TH KARTHIKA 1933 WP(C).No. 9195 of 2009 (T) --------------------------- PETITIONERS: ------------ 1. V.T.ABDUL RAHMAN, S/O. KUNHI POKKER, AGED 39 YEARS HIGH SCHOOL ASSISTANT (HINDI), MARKAZ HIGHER SECONDARY SCHOOL FOR BOYS, KARANTHUR KOZHIKODE DISTRICT - 673 571. * 2. K.ABDUL RAHMAN, HIGH SCHOOL ASSISTANT (ARABIC), MARKAZ HIGHER SECONDARY SCHOOL FOR BOYS, KARANTHUR KOZHIKODE DISTRICT - 673 571. IS CORRECTED AS *P2: K.ABDUL KALAM, HIGH SCHOOL ASSISTANT (ARABIC), MARKAZ HIGHER SECONDARY SCHOOL FOR BOYS, KARANTHUR KOZHIKODE DISTRICT - 673 571. BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM - 14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 5. THE MANAGER, MARKAZ HIGHER SECONDARY SCHOOL, KARANTHUR KOZHIKODE DISTRICT - 673 571. BY GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)No.9195 of 2009 -------------------------------------------------- DATED THIS THE 19th DAY OF NOVEMBER, 2011 JUDGMENT Both the petitioners are before this Court seeking for issuance of a writ of certiorari to quash the orders refusing approval of their appointments to the limited extent to which their approval is declined from the respective dates of appointment. The approval orders have been issued with effect from 5.7.2007. 2. The first petitioner was appointed as High School Assistant(Hindi) with effect from 23.10.2002 against an additional division vacancy sanctioned in the academic year 2001-02, as per Exhibit P1 order. The second petitioner was appointed as High School Assistant (Arabic) with effect from 1.9.2004 against a voluntary retirement vacancy, as per Exhibit P1(a) order. 3. The orders refusing approval as confirmed in appeals as well as in revision petitions have been produced as as Exhibits P2 to P8. Exhibit P11 shows that a direction has been issued to W.P.(C)No.9195/09 -2- approve the appointment of the petitioners from 5.7.2007, the date of appointment of the protected hand. 4. The learned counsel for the petitioners submitted that the legal question herein is covered in favour of the petitioner in the light of the decision of this Court in Nadeera v. State of Kerala (2011(3) KLT 790) and therefore the approval has to be granted from the respective dates of appointment itself. 5. The learned Government Pleader invited my attention to the fact that the school is a newly sanctioned one and as on the date of appointment of the first petitioner a ban order was in force in the new post of High School Assistant and as per G.O.(P) No.169/04 dt.15.6.2004, the ban order was lifted partially. It is also submitted that a protected High School Assistant(Hindi), namely, Smt.Jyothilakshmi was available for absorption. 6. Evidently, the sanction of the post held by the first petitioner is from 15.6.2004. The learned counsel for the petitioners relied upon various Government Orders to point out that in the light of the sanction ordered by the Government, the appointment of the first petitioner has to be approved from the date of appointment itself. In Nadeera's case(supra), this Court W.P.(C)No.9195/09 -3- was of the view that when the post is sanctioned and when a qualified person has been appointed, merely because the protected hand is appointed only at a later point of time, the approval cannot be refused for the earlier period, i.e., from the date of appointment of the teacher upto the date of appointment of the protected teacher in the school. Another question considered in the said judgment was with regard to the obligation of the Department to communicate the list of protected teachers to the Manager concerned. It was held that unless the list of protected hands is communicated, the Manager cannot be found fault with in not appointing a protected hand. 7. In the light of the above judgment, two aspects will converge in favour of the petitioners. One is that even though it is contended that Smt.Jyothilakshmi, a protected teacher was available, there is no plea that her name was furnished to the Manager for absorption. Therefore, the mere availability of the person concerned may not affect the right of the petitioner for getting approval. Secondly, the Manager has already appointed a protected hand from 5.7.2007. Therefore, the principles stated in Nadeera's case will come to the help of the petitioners. W.P.(C)No.9195/09 -4- 8. But the learned Government Pleader submitted that as far as the first petitioner is concerned, the ban order was lifted and the post was sanctioned only by Government Order dated 15.6.2004 and therefore the Department cannot be found fault with for not forwarding the name of the protected hand on any day prior to 15.6.2004. The said argument is well founded. Therefore, the first petitioner will be entitled for approval with effect from 15.6.2004, even though he was appointed from 23.10.2002. 9. As far as the second petitioner is concerned, there is no plea that any protected hand was available in the said subject (Arabic) and therefore on the same principle stated in Nadeera's case, the second petitioner will be entitled for approval from the date of appointment itself. In that view of the matter, the Writ Petition is allowed. The impugned orders namely, Exhibits P2,P2(a), P4, P4(a), P6, P6(a), P8, P8, P11 and P11(a) are quashed to the extent to which the approval is refused as far as the petitioners are concerned from earlier dates. There will be a direction to the District Educational Officer to approve the appointment of the first petitioner from W.P.(C)No.9195/09 -5- 15.6.2004 and that of the second petitioner from 01.9.2004. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. Consequential monetary benefits also will be sanctioned to the petitioners. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn