IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 3144 of 2011(P) ------------------------- PETITIONER(S): --------------- SUNIMOL.M.B., AGED 30 YEARS, W/O.ASHARAF.C.M., CHULLIKADAN HOUSE, KOTHAMANGLAM, AIYARAPURAM. BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF PUBLIC EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 4. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. 5. THE THARBIATH TRUST VOCATIONAL HIGHER SECONDARY SCHOOL, MUVATTUPUZHA, REP.BY ITS MANAGER. 6. THE MANAGER, THE THARBIATH TRUST VOCATIONAL HIGHER SECONDARY SCHOOL, MUVATTUPUZHA. 7. THE HEAD MASTER, THE THARBIATH TRUST VOCATIONAL HIGHER SECONDARY SCHOOL, MUVATTUPUZHA. GOVERNMENT PLEADER SHRI M.A.FAYAZ FOR R-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 3144/2011 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF REJECTION ORDER ISSUED BY 1ST RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER NO.39907/N2/2005/G.EDN., DT.25/07/2005 RESPONDENTS' EXTS: NIL \\True copy// P.A to Judge T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.3144/2011-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 8th day of December, 2011 J U D G M E N T The petitioner herein is challenging non approval of her appointment as Full Time Menial in the school managed by the sixth respondent. 2. The appointment was made in a retirement vacancy on 15/02/2008. Ext.P1 is the order passed by the Government in a revision petition filed by the sixth respondent-Manager. The view taken therein is that since there are protected Full Time Menials waiting for absorption as on the date of appointment of the petitioner, her appointment cannot be approved. The petitioner relies upon Ext.P2, a communication issued by the Government in respect of approval of appointment of Full Time Menial of another school, wherein the direction is to approve the appointment on the reason that G.O.(P).No.178/2002/G.Edn., dated 28/06/2002 is applicable only in the case of teachers. 3. The learned counsel for the petitioner submitted that the stand taken in Ext.P1 and in the W.P.(C). No.3144/2011 -:2:- counter affidavit that there were protected hands waiting for absorption is not correct. 4. The stand taken in para.3 of the counter affidavit filed by the second respondent is that the vacancy which arose in the school, should have been filled up by appointing a protected Full Time Menial. An additional statement has also been filed by the third respondent. In para.4 of the statement, details of three Full Time Menials have been shown. The learned Government Pleader was directed to verify whether there were any protected hands waiting in the Educational District/Sub District. It is submitted that protected hands were available in the Revenue District. 5. The question is whether there is any fault on the part of the Manager in not appointing a protected hand. It is also the contention of the petitioner that no list of protected hands has been communicated to the Manager. There is no averment in the counter affidavit also with regard to the communication of any list of protected hands to the Manager for absorption. The W.P.(C). No.3144/2011 -:3:- legal issue in that regard has been settled by a decision of this Court in Nadeera v. State of Kerala [2011 (3) KLT 790]. Therein this Court has considered various aspects including a question whether the Manager can be found fault with in a case where the list of protected hands was not communicated by the Educational Officers. After a detailed consideration of the issues and relying upon various Judgments of this Court, it was held in paras.19 and 20 thus:- “19. Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of Rule 6 (viii) of Chapter V of KER. There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009 was issued which can only be prospective. Evidently there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be postponed. W.P.(C). No.3144/2011 -:4:- 20. It is in that context that the procedure for communicating the list of protected teachers forwarded 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 W.P.(C). No.3144/2011 -:5:- 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.” Similar is the situation here. Evidently, the list of protected hands was not communicated and there is no concrete evidence to show that any protected hands in the post of Full Time Menial were awaiting in the Educational District/Sub District for absorption. The availability if any of such hands in another Sub District or Revenue District will not be sufficient. The said legal position is clear from the decision of this Court in Moosakutty v. D.E.O., Wandoor [2009 (3) KLT 863]. In that view of the matter, Ext.P1 cannot be supported. Ext.P1 is accordingly quashed. 6. There will be a direction to the fourth respondent to approve the appointment of the petitioner and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this Judgment and the petitioner will be entitled for the grant of monetary benefits in terms of the approval W.P.(C). No.3144/2011 -:6:- granted. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms