IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 194 of 2009(W) ------------------------------------ PETITIONER: ------------------- RESMI SASI, UPSA, PANCHAYAT U.P SCHOOL, VELLARANKALLU, KALLOORKAD, MUVATTUPUZHA. BY ADV. SMT.P.V.ASHA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 3. ASSISTANT EDUCATIONAL OFFICER, KALLOORKAD, MUVATTUPUZHA. 4. SECRETARY, KALLOORKAD GRAMA PANCHAYAT & MANAGER, PANCHAYAT U.P SCHOOL, KALLOORKAD, MUVATTUPUZHA. 5. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, ERNAKULAM. 6. THE KERALA PUBLIC SERVICE COMMISSION, REP; BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SMT. T.B. REMANI, R4 BY ADVS. MR.V.A.MUHAMMED, MR.M.SAJJAD, R5 & R6 BY MR. ALEXANDER THOMAS, SC, KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.194/2009-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. A2/5209/06 DTD. 06/01/07 OF DDE, IDUKKI. EXT.P.2: COPY OF THE RELEVANT PORTION OF RANK LIST DTD. 30/12/2006 FOR APPOINTMENT AS U.P.S.A IN ERNAKULAM DISTRICT. EXT.P.3: COPY OF THE MEMO NO.EII(1)1036/05 DTD. 28/07/08 OF R.5. EXT.P.4: COPY OF THE ORDER NO. C2-168/2008 DTD. 13/08/08 OF R.4. EXT.P.5: COPY OF THE ORDER NO. A2/12030/08/L. DIS. DD. 28/08/08 OF DDE, IDUKKI. EXT.P.6: COPY OF THE LAST PAY CERTIFICATE OF THE PETITIONER. EXT.P.7: COPY OF THE ORDER NO. C-2370/08/K. DIS. DTD. 01/12/2008 OF RESPONDENT. EXT.P.8: COPY OF THE GOVT. ORDER DTD. 12/10/2006. EXT.P.9: COPY OF THE REPRESENTATION DTD. 19/12/2008 OF PETITIONER TO R.2. EXT.P.10: COPY OF THE APPOINTMENT CHART IN RESPECT OF SMT. RANJINI. EXT.P.11: COPY OF THE RELEVANT PORTION OF THE LIST WITH DETAILS OF ADVICE OF CANDIDATES AS U.P.S.A IN ERNAKULAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. ====================================== W.P.(C)No.194 of 2009 ====================================== Dated this the 24th day of February 2009 JUDGMENT Heard both sides. 2. The petitioner is admittedly working as Upper Primary School Assistant in the Upper Primary School, managed by the Kalloorkad Grama Panchayat. She was recruited through the Kerala Public Service Commission, hereinafter referred to as 'Commission' for short and appointed by the Deputy Director of Education, Idukki by Ext.P4 appointment order dated 13.8.2008. By Ext.P7 order passed on 1.12.2008 the Assistant Educational Officer declined to approve her appointment on the ground that the school is an uneconomic school and therefore exemption from minimum strength is required. In Ext.P7, it is also stated with reference to the Government orders that vacancies in uneconomic schools should be filled up by deploying protected teachers. Ext.P7 is under challenge in this Writ Petition. 2. Ext.P7, according to be makes strange reading. In one breath, the Assistant Educational Officer says that the school is an uneconomic school and that vacancies in uneconomic schools should be filled up by appointing protected teachers. Even if a protected teacher is appointed, the Government will have to pay him salary. Further, the petitioner was not appointed by the Manager from the open market. She was recruited and advised by the Commission and appointed by the Manager of the school as per Ext.P4 appointment order dated 13.8.2008. If the school W.P.(C)No.194 of 2009 2 was an uneconomic school, the department ought not have resorted to direct recruitment and ought to have filled up the vacancies by deploying protected teachers. The department itself having chosen to report the vacancies to the Commission and having initiated the process of the recruitment, cannot in my opinion, be heard to say that the school is an uneconomic school and therefore a protected teacher alone can man the vacancy. I am therefore prima facie satisfied that Ext.P7 requires to be quashed. Ext.P7 is accordingly quashed and the Assistant District Educational Officer, Kalloorkad is directed to reconsider the matter, having regard to the fact that the Manager did not appoint the petitioner voluntarily and that she was appointed on advice by the Commission. The Assistant Educational Officer, Kalloorkad shall also bear in mind the fact that even if a protected teacher is deployed in the school run by the Kalloorkad Grama Panchayat, the incumbent will have to be paid salary by the Government. Final orders in the matter shall be passed within one month from the date on which the petitioner produces a certified copy of this judgment. If the petitioner is aggrieved by the order passed by the Assistant Educational Officer, it will be open to her to challenge the same in other appropriate proceedings before the competent authority. If the Assistant Educational Officer finds that the petitioner cannot be accommodated in the school run by the Kalloorkad Grama Panchayat, he shall take necessary steps to shift the petitioner to another school run either by the W.P.(C)No.194 of 2009 3 department themselves or by any other local authority, in Ernakulam District. I also direct that irrespective of the decision taken by the Assistant Educational Officer, the petitioner will be entitled to salary and emoluments for the period during which she has worked in the school run by the Kalloorkad Grama Panchayat, for the reason that she did not intend to work gratuitously and was forced to work in the school only by reason of the advice by the Commission and consequential appointment by the Manager. Arrears of salary and allowances payable to the petitioner shall be computed and disbursed within two months from today. This Writ Petition is disposed of as above. No costs. . P.N.RAVINDRAN, JUDGE css/