IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 36868 of 2007(L) -------------------------- PETITIONERS: --------------- 1. T.S.SINDHU, W/O. C.R.SATHEESH CHANDRAN, RADHALAYAM, PALIYEKKARA, THIRUVALLA, (LOWER PRIMARY SCHOOL ASSISTANT, KADALIMANGALAM DEVASWOM LOWER PRIMARY SCHOOL, VENPALA, THIRUVALLA). 2. MANAGER, KADALIMANGALAM DEVASWOM LOWER PRIMARY SCHOOL, VENPALA, THIRUVALLA. BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED 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. DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA DISTRICT. 4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. 5. ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, THIRUVALLA. R1 TO R5 BY GOVERNMENT PLEADER SRI SHYSON P. MANGUZGHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.36868/2007 I.A.NO.15340/2008 IN W.P.(C).No.36868/2007 ----------- DISMISSED 10/2/2009 Sd/- Harun-Ul-Rashid, Judge. APPENDIX PETITIONERS' EXTS: EXT.P1TRUE COPY OF THE PARTIION DEED DTD. 19/7/1968. EXT.P2 TRUE COPY OF THE DEATH CETIFICATE DTD. 198/10/1985 SHOWING THE DATE OF DEATH OF THE PETITIONER'S HUSBAND. EXT.P3 TRUE COPY OF THE PETITION DTD. 30/5/1993 SUBMITTED BY THE PETITIONER BEFORE THE TALUK LAND BOARD. EXT.P4 TRUE COPY OF THE REPRESENTATION DTD. 6/6/2003 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.5 TRUE COPY OF THE REMINDER DTD.M 3/12/2004 SUBMITTED BY THE PETITIONER. EXT.P6 TRUE COPY OF THE REMINDER DTD. 1/5/2006 SUBMITTED BY THE PETITIONER. EXT.P7 TRUE COPY OF THE CERTIFICATE DTD. 28/8/2006. EXT.P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE LAND BOARD DTD. 25/11/1981. EXT.P9 TRUE COPY OF THE JUDGMENT DTD. 15/2/2006 IN CRP.NO.808/2000. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.36868 OF 2007 ---------------------------- DATED THIS THE 10TH DAY OF FEBRUARY, 2009 JUDGMENT The lst petitioner was appointed as Lower Primary School Assistant in the leave vacancy for the period from 2/6/2003 to 31/3/2004. The said appointment was not approved. Subsequently, when the leave vacancy arose on 31/3/2004 consequent on the retirement of one Kumari Prameela, the first petitioner was again appointed in that vacancy from 2/6/2004. The said appointment was also rejected for non-absorption of a protected teacher. The leave of Smt. Sudha Bai was extended from 13/7/2004 to 12/7/2009. Another incumbent was appointed in that leave vacancy. Smt.Sindhu. S. has resigned from the school, as her appointment was not yet approved. As of now the vacancy is available in the School, i.e. the vacancy which had arisen subsequent to the initial appointment of the lst petitioner in the leave vacancy from 13/7/2004 to 12/7/2009. -2- W.P.(C)No.36868/2007 2. The 5th respondent in the counter submitted that the appointment to the above vacancy can be considered for approval only if the Manager absorbs a protected teacher in the school in the vacancy for which the lst petitioner was appointed from 2/6/2003 to 2/6/2004. It is submitted by the learned counsel for the petitioners that the Manager is willing to appoint a protected hand in the vacancy. 3. The Kadalimangalam Devaswom Lower Primary School, Venpala was opened in the year 1983. In Ext.P12 Government Order dated 1-2-2006, it was ordered that there was no justification for treating the school opened during the period between 1979 and 1990 still as a newly opened. It is further stated that instead of fully removing the restriction imposed upon those schools, certain exemptions were granted. It was ordered that one of the vacancies shall be given for the purpose of absorbing protected teachers and all other vacancies can be filled up by fresh appointment. If no protected teacher is available, -3- W.P.(C)No.36868/2007 then the said post shall also be filled up by a teacher on daily wage basis. Educational Officers were directed to re-consider all orders in respect of approval of appointment made in aided schools and the same was directed to be done without waiting for further appellate/revisional orders. The order refers to the approval of appointment rejected on the ground of non- absorption of protected teachers upto 31/12/2004. Learned counsel for the petitioners submitted that in view of the provisions contained in Ext.P12 G.O., the lst petitioner is entitled to continue in employment as an approved teacher and her appointment should have been approved in case, the Manager complies with the terms stipulated in Ext.P12. According to them, there were altogether two vacancies available in the school, namely, retirement vacancy and long leave vacancy. It is contended that going by the terms of Ext.P12 G.O. the appointment of the lst petitioner should have been approved, as one LPSA vacancy has been kept unfilled by the 2nd petitioner- -4- W.P.(C)No.36868/2007 Manager. It is further submitted that in fact by a mistake the lst petitioner's name was omitted from the list of 402 teachers, whose appointments were rejected on identical grounds. The lst petitioner being worked as a teacher during the relevant period, is also entitled to get the benefit conferred by Ext.P12 G.O. By Ext.P16 G.O. the request of the lst petitioner to approve her appointment from 2/6/2003 to 31/3/2004 is rejected holding that she is not entitled to get any of the relief as prayed for. Since the Manager expressed his willingness to appoint a protected teacher in one of the vacancies now available, the claim of the petitioner on the basis of Ext.P12 G.O. shall be re-considered by the Government. The 2nd petitioner-Manager undertakes to absorb a protected teacher in the school to be deployed by the 3rd respondent. For the said reason Ext.P16 is quashed. 4. In the light of the subsequent development, the Government shall re-consider the matter and pass appropriate orders, after affording an opportunity of being heard to both -5- W.P.(C)No.36868/2007 sides, within a period of three months from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.