IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 22510 of 2009(G) ------------------------------------- PETITIONER(S): ----------------------- SUMITHRA.S. D/O. CHANDRAN PILLAI VISHNU BHAVAN, PAVUMBA, KARUNAGAPPALLY, KOLLAM (LPSA, KIZHAKKEN OTHERA LOWER PRIMARY SCHOOL KIZHAKKEN OTHERA, THIRUVALLA BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): ------------------------- 1. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA. 4. ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, PULLAD, THIRUVALLA. 5. MANAGER,KIZHAMMEN OTHERA LOWER PRIMARY SCHOOL OTHERA.P.O., THIRUVALLA. R1 TO R4 BY GOVT. PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.22510/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER OF APPOINTMENT DTD. 5.6.2008 ISSUED BY RESPONDENT NO.5 AND THE ORDER OF APPROVAL DTD. 10.8.2006 ENDORSED ON THE SAME ISSUED BY RESPONDENT NO.4. P2:- COPY OF THE ORDER DT. 1.4.2007 ISSUED BY RESPONDENT NO.5 AND THE ORDER OF APROVAL OF RESPONDENT NO.4 ENDORSED ON THE SAME. P3:- COPY OF THE GO(MS) NO.275/99/G.EDN. DTD. 9.11.1999. P4:- COPY OF THE ORDER DTD. 1.6.2007 ISSUED BY RESPONDENT NO.5. P5:- COPY OF THE GOVERNMENT CIRCULAR DTD. 18.5.2007 ISSUED BY RESPONDENT NO.1. P6:- COPY OF THE ORDER OF REJECTION OF EXT. P4 APPOINTMENT/REGULARIZATION OF THE PETITIONER. P7:- COPY OF THE APPOINTMENT OF SMT.REJANI P.K. ON A DAILY WAGE BASIS IN THE LONG LEAVE VACANCY OF SMT. PARVATHY G.NARI FROM 25.9.07 ONWARDS. P8:- COPY OF THE ORDER DT. 12.2.2008 PASSED BY RESPONDENT NO.3. P9:- COPY OF THE ORDER DTD. 13.8.2008 PASSED BY RESPONDENT NO.2. P10:- COPY OF THE JUDGMENT DTD. 26.3.2009 PASSED BY THIS HONOURABLE COURT IN WPC. 9858/2009. P11:- COPY OF THE GOVERNMENT ORDER DTD. 24.1.2009 THUS PASSED BY RESPONDENT NO.1. P12:- COPY OF THE GOVERNMENT ORDER DTD. 15.7.2009 PASSED BY RESPONDENT NO.1. P13:- COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, PATHANAMTHITTA DT.D 13.5.2009. P13(a):- COPY OF THE PROCEEDINGS OF THE TAHSILDAR, KOZHENCHERRY DTD 6.11.2010. P13(b):- COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR PATHANAMTHITTA DTD. 7.10.2010. P13(c):- COPY OF THE DUTY CERTIFICATE DTD. 20/7/2010 ISSUED BY TAHSILDAR, THIRUVALLA. tss W.P.(C) NO. 22510/2009 P13(d):- COPY OF THE PROCEEDINGS OF THE TAHSILDAR THIRUVALLA DTD. 29.3.2010. P13(e):- COPY OF THE PROCEEDINGS OF THE TAHSILDAR KOZHENCHERRY DTD. 17.2.2009. P13(f):- COPY OF THE PROCEEDINGS OF THE TAHSILDAR, KOZHENCHERRY DTD 5.11.2008. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 22510 of 2009-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011. JUDGMENT The non approval of appointment of the petitioner in a regular vacancy on the ground that the school is an uneconomic one, is the subject matter of challenge herein. Ext.P12 is the order passed by the Government rejecting her claim. 2. The appointment of the petitioner as LPSA, has been approved as per Ext.P1 order. The petitioner entered service as LPSA on 5.6.2006 in a leave vacancy of one Smt. Parvathy G. Nair, LPSA from 4.9.2003 to 3.9.2008. It is now stated that she has applied for extension of leave from 3.9.2008 to 3.9.2013. 3. The Headmaster of the school, Smt. M. Sreekumari retired from service on 31.3.2007 and in the consequent vacancy Shri K. Suseela, the seniormost LPSA was promoted and appointed as Headmistress with effect from 1.4.2007. The same has been approved by the Asst. Educational Officer as per Ext.P2 order. In the regular vacancy of LPSA, the petitioner was appointed and she was thus shifted as per Ext.P3 order. Even though the order of appointment was forwarded for approval, it stood rejected on wpc 22510/2009 2 the ground that the school is an uneconomic one. The various orders have been produced as Exts.P5 to P12. 4. Heard learned counsel for the petitioner and learned Govt. Pleader. 5. Learned counsel for the petitioner submitted that in similar circumstances the Government itself has allowed the claims of other similarly placed leave substitutes in different schools, as evident from Ext.P11 order, in respect of one Smt. Rini Thomas and Ext.P14 produced along with I.A. No.8476/2011. 6. The right of a leave substitute to get appointment when a permanent vacancy arises, is a recognised one and the Government itself has directed regularisation of such leave substitute by Ext.P3 order dated 9.11.1999. Therein, it is clarified that the services of leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. As far as uneconomic schools are concerned, in Ext.P5 it is stated that in respect of such schools also the appointees prior to 12.10.2006 can continue and in their cases action can be taken for approval. Evidently, in this case the petitioner was appointed prior to the date fixed therein, viz. 12.10.2006. Since learned counsel for the petitioner submitted that Ext.P14 order passed by the Government is exactly similar, a reference can be made of the facts shown therein. wpc 22510/2009 3 Therein, the teacher concerned had approval from 2.6.2004 and the permanent vacancy arose on 1.4.2007. Therefore, the Government directed that in such cases the approval of appointment need not be refused by relying upon G.O.(P) No.259/06/G.Edn. dated 12.10.2006. Evidently, the view taken is that since the appointment is on a date prior to 12.10.2006, the same could be approved. Therefore, the circumstances are similar. 7. Herein, one more aspect is there, in that by Ext.P3 itself the Government clarified that the service of leave substitute will have to be regularised against arising regular vacancies. The right of a leave substitute to get regularisation in the light of the said order, cannot be disputed. This aspect is covered by the decision of a Division Bench of this Court in Geetha S. v. Geo Thomas K. (2009 (4) KHC 296). 8. In that view of the matter, the fact that the school is an uneconomic one, need not stand in the way of approving the appointment of the petitioner. In Ext.P12 the view taken by the Government is that going by G.O.(P) No.259/06/G.Edn. dated 12.10.2006 permanent vacancies are to be filled up by protected hands. Evidently, the petitioner was accommodated in the long leave vacancy of Smt. Parvathy G. Nair, LPSA. Therefore, the said vacancy, after approval of the petitioner herein, can be set apart for appointing a protected teacher. wpc 22510/2009 4 For all these reasons, the writ petition is allowed. Ext.P12 order is quashed and consequently, Exts.P6, P8 and P9 orders are also quashed. There will be a direction to the fourth respondent to approve the appointment of the petitioner. Appropriate orders will be passed and monetary benefits will also be released to the petitioner within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/