IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 WP(C).No. 21646 of 2010(E) -------------------------------- PETITIONER: -------------- JYOTHY T.S., W/O. RAJAN, AGED 34 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, A.U.P.SCHOOL, THESSERY, KANAKAMALA-680 689, THRISSUR DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR-680 003. 4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT-680 121. 5. THE ASSISTANT EDUCATIONAL OFFICER, CHALAKKUDY, THRISSUR DISTRICT-680 307. 6. THE MANAGER, A.U.P.SCHOOL, THESSERY, KANAKAMALA-680 689, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL FOR R6 SMT. RANI DIOTHIMA, GOVERNMENT PLEADER FOR R1-R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.21646/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.2905/A1/06/G.EDN. OF GOVT. DTD. 10.3.06. EXT. P2 : COPY OF COUNTER AFFIDAVIT FILED IN WP(C) 10621/08 DTD. 18.12.08. EXT. P3 : COPY OF ORDER No.D/3276/05 OF Deputy Director of Education DTD. 23.6.06. EXT. P4 : COPY OF ORDER No.B1-6563/06/L.DIS OF District Educational Officer DTD. 22.3.07. EXT. P5 : COPY OF ORDER No.F2/25330/07/DPI/K.DIS. OF R2 DTD. 19.10.07. EXT. P6 : COPY OF G.O.(Rt) No.3539/08/G.EDN. OF GOVT. DTD. 2.8.08. EXT. P7 : COPY OF ORDER No.62315/B2/08/G.EDN OF GOVT DTD. 27.3.10. EXT. P8 : COPY OF G.O.(Rt) No.3776/06/G.EDN. OF GOVT. DTD. 24.8.06. EXT. P9 : COPY OF CIRCULAR No.74101/J2/2004/G.EDN. OF GOVT. DTD. 24.1.05. EXT. P10 : COPY OF JUDGMENT OF THIS COURT IN WP(C) 2563/08 DTD. 24.9.08. EXT. P11 : COPY OF G.O.(Rt) No.3805/06/G.EDN OF GOVT. DTD. 26.8.06. EXT. P12 : COPY OF DECLARATION/BOND DTD. 14.10.09. EXT. P13 : COPY OF DECISION REPORTED IN 1993(2) KLT S.N. PAGE 27 CASE No.28. DTD. 02.08.93. EXT. P14 : COPY OF JUDGMENT IN WP(C) 18986/09 DTD. 9.7.10. EXT. P15 : COPY OF JUDGMENT IN WP(C) 8553/09-L DTD. 16.3.11. WP(C).No.21646/2010 6TH RESPONDENT'S EXHIBITS: EXT. R6(a) : COPY OF ORDER No.D-4514/02/L.DIS DTD. 1.11.02 ISSUED BY Assistant Educational Officer, CHALAKUDY. EXT. R6(b) : COPY OF ORDER No.D-571/03/L.DIS DTD. 13.2.03 ISSUED BY Assistant Educational Officer, CHALAKUDY. EXT. R6(c) : COPY OF ORDER No.D-1677/03/L.DIS DTD. 7.4.03 OF Assistant Educational Officer, CHALAKUDY. EXT. R6(d) : COPY OF ORDER G.O.(P) No.169/04/G.EDN DTD. 15.6.04 ISSUED BY GOVT. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.21646 OF 2010 --------------------------------------- Dated this the 20th day of August, 2011. J U D G M E N T This writ petition concerns non approval of appointment during different periods as far as the petitioner is concerned. First grievance is regarding non grant of approval to leave vacancies during which the petitioner was appointed as U.P.S.A namely, from 11.09.2002 to 14.01.2003, 15.01.2003 to 13.03.2003 and 14.03.2003 to 28.03.2003. The second grievance is regarding non approval of appointment in a regular vacancy as U.P.S.A from 18.07.2005. 2. Firstly, I will consider the grievance regarding the non approval of appointments in leave vacancies. The ground on which the approval was rejected is the ban imposed by the Government in making appointments. Learned counsel for the petitioner submitted that the ban was lifted as evident from Ext.R6(d) Government Order produced along with the counter affidavit filed by the 6th respondent. W.P.(C) No.21646/2010 2 3. A reading of Ext.R6(d) shows that the ban was imposed as per G.O.(P) No.303/01/G.Edn. dated 05.10.2001. It was specified that all appointments made upto 14.07.2001 will be approved in accordance with the rules. Further condition specified was that in future no new appointments will be made in the schools without prior approval of the Government. This was modified by the Government Order namely, G.O.(P) No.80/2002/G.Edn. dated 27.04.2002. Ext.R6(d) order is dated 15.06.2004 wherein a consolidated order has been passed lifting the ban and directing approval of appointments made against different periods. Clause 3 of paragraph 5 therein reads as follows: “All the appointment made against leave vacancies after 29.10.2001 in Aided school will be approved if otherwise eligible as per the provisions of the KER”. Therefore, the petitioner will be entitled for grant of approval for the period covered by the leave vacancies. 4. Herein, the learned Government Pleader pointed out that the appointment was made without getting prior approval and therefore, the petitioner is not entitled for grant of approval. In W.P.(C) No.21646/2010 3 fact, a reading of clause 3 of paragraph 5 of Ext.R6(d) shows that no such condition has been imposed. Apart from that, prior approval, going by the previous Government Order, was required for appointment in the ban period and once the Government grants prior approval for such an appointment, then automatically it will result in approval. Therefore, the same is not the situation envisaged in Ext.R6(d). After the lifting of the ban, it was made clear therein that all the appointments made against leave vacancies after 29.10.2001 will be approved. It is not a qualified condition at all. The plea otherwise raised by the learned Government Pleader cannot therefore be accepted. Hence, in the light of Ext.R6(d) order passed by the Government, the petitioner will be entitled for grant of approval of appointments in the leave vacancies and it is declared so. 5. The second aspect is regarding the regular appointment as U.P.S.A from 18.07.2005. Herein, Ext.P3 is the communication by which the approval was rejected stating that a protected teacher has to be appointed. The said order has been confirmed in appeal, in revision by the Director of Public W.P.(C) No.21646/2010 4 Instruction as well as by the Government by Ext.P6 order. The Government was of the view that as per G.O.(P) No.178/02/GE dated 28.06.2002, all the existing/arising vacancies in the newly opened/upgraded schools should be filled up by protected teachers. Even though the same was modified later, in the school no protected hand has been appointed. 6. Learned counsel for the petitioner submitted that the list of protected teachers has not been communicated for making appointments. It is pointed out that in the light of the judgment of this Court in W.P.(C) No.2563/2008 (Ext.P10), it can be seen that this Court was of the view that if such a list was not communicated, the Manager cannot be faulted for not appointing the protected hands. Herein, the case of the Manager is that no such list was communicated. 7. Learned Government Pleader by relying upon the averments in paragraph 5 of the counter affidavit filed by the 5th respondent submitted that the Manager has not cared to get the list of protected teachers. The very same question was considered by this Court in Ext.P10 judgment. In paragraph 3 W.P.(C) No.21646/2010 5 therein, it was held as follows: “3. However, it is seen that, it was the specific case of the Manager that, as required under G.O.(MS) No.178/2002 dated 28.06.2002, the Deputy Director should have made available the District wise and the category wise list of protected hands, on the basis of length of service. It has been contended that, because of the failure on the part of the educational authorities in furnishing the list as required above, the Manager could not comply with the obligation. Therefore, the Manager cannot be faulted”. 8. Finally, in paragraph 4, it was held that if the list of protected hands has not been made available as required, the Manager cannot be faulted for not appointing the protected hands. Apart from that, herein the Manager has furnished a declaration/undertaking that he is prepared to appoint a protected hand in the next arising vacancy on 14.10.2009 and the same is admitted in paragraph 5 of the counter affidavit filed by the 5th respondent. 9. I had occasion to consider a similar issue in W.P.(C) No. 28577/2008 wherein in paragraph 20, it was held as follows: “20. It is in that context that the procedure for communicating the list of protected teachers forwarded W.P.(C) No.21646/2010 6 under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are entitled to succeed in the Writ Petition”. 10. Therein reliance was placed on Ext.P10 judgment produced herein and other judgments of this Court stating that the list of protected teachers had to be communicated by the officers concerned. Herein, therefore, the respondents cannot W.P.(C) No.21646/2010 7 deny the right of the petitioner for getting the approval. Evidently, the Manager has given an undertaking also to appoint a protected hand. 11. For all the above reasons, this writ petition is allowed and the impugned orders are quashed to the extent they denied approval from 18.07.2005. There will be a direction as follows: The 5th respondent will pass appropriate orders with regard to the grant of approval in the light of the findings rendered above in respect of the leave vacancies from 11.09.2002 to 14.01.2003, 15.01.2003 to 13.03.2003 and 14.03.2003 to 28.03.2003 as well as regular appointment from 18.07.2005. Appropriate orders will be passed granting approval within a period of six weeks from the date of receipt of a copy of this judgment. A protected hand will be deployed to the vacancy which is now reserved by the Manager for appointment. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp