IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 5391 of 2007(P) ------------------------------------ PETITIONER(S): --------------- 1. THE MANAGER, PMSA L.P.SCHOOL, CHATTIPARAMBA P.O., MALAPPURAM. 2. SWAPNA P., LPSA, PMSA L.P.SCHOOL, CHATTIPARAMBA P.O., MALAPPURAM. BY ADVS. SMT.S.KARTHIKA MR.M.S.UNNIKRISHNAN MR.M.R.ANISON SMT.K.P.GEETHA MANI MR.T.R.RAJESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. THE ASST. EDUCATIONAL OFFICER, MALAPPURAM. BY GOVERNMENT PLEADER SRI. DILIP MOHAN FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5391 of 2007(P) APPENDIX PETITIONERS' EXHIBITS: Ext.P1 - TRUE COPY OF THE ORDER DATED 2.1.2006 ISSUED BY THE 4TH RESPONDENT. Ext.P2 - TRUE COPY OF THE ORDER DATED 28.2.2006 ISSUED BY THE 3RD RESPONDENT. Ext.P3 - TRUE COPY OF THE ORDER DATED 15.6.2006 ISSUED BY THE 2ND RESPONDENT. Ext.P4 - TRUE COPY OF THE ORDER DATED 8.12.2006 ISSUED BY THE 1ST RESPONDENT. Ext.P5 - TRUE COPY OF THE REPRESENTATION DATED 25.9.2006 BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT. Ext.P6 - TRUE COPY OF THE COMMUNICATION DATED 4.10.2006 ISSUED BY THE 3RD RESPONDENT. Ext.P7 - TRUE COPY OF THE JUDGMENT DATED 28.6.2002 IN O.P. NO. 776/1997 ISSUED BY THIS COURT. Ext.P8 - TRUE COPY OF THE G.O. NO. 72889/B1/05/G.EDN. DATED 23.3.2006. Ext.P9 - TRUE COPY OF THE G.O.(Rt) NO. 1907/06/G.EDN. DATED 10.5.2006. Ext.P10 - TRUE COPY OF THE G.O.(Rt) NO. 3104/05/GL. EDN. DATED 21.6.2005. Ext.R3(a) - BOND EXECUTED BY THE MANAGER. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 5391 of 2007 ................................................. Dated this the 26th day of August, 2009 J U D G M E N T s The 1st petitioner is the Manager of an aided LP school and the 2nd petitioner is an LPSA working in the 1st petitioner's school. The 2nd petitioner was appointed as LPSA by the 1st petitioner on 2.1.2006. The appointment order was forwarded to the 4th respondent for approval. The same was rejected by Ext.P1 order on the ground that the 1st petitioner has not appointed a protected teacher as per Government Order dated 28.6.2002. The petitioner filed an appeal before the 3rd respondent. The same was rejected by Ext.P2 order. The petitioner filed a revision to the 2nd respondent which was dismissed by Ext.P3 order. The petitioner filed a further revision under Rule 92 which was also rejected by Ext.P4. The petitioner is challenging Exts.P1 to P4. The petitioner does not dispute the liability of the petitioner to appoint a protected teacher as a condition for approval of further appointments in the petitioner's school. The petitioner's contention is that by Ext.P5 letter dated 25.9.2006, the petitioner had requested the 3rd respondent to give details regarding protected W.P(C) No. 5391 of 2007 -2- teachers available for appointment in the district so that the petitioner can appoint one of them in his school. The petitioner has been favoured with Ext.P6 reply stating the total number of protected teachers in the district, without giving details of any of them, whom the petitioner can appoint. Petitioner submits that in similar circumstances by Ext.P7 judgment in O.P. No.776 of 1997, similar appointment have been directed to be approved. 2. A counter affidavit has been filed by respondents 3 and 4 supporting the impugned orders. According to them, in view of the Government orders on the subject, the petitioner cannot appoint any teacher in the school before appointing a protected teacher. Along with the reply affidavit filed by the petitioner, petitioner has produced Ext.P10 order, whereby in exactly identical circumstances, the Government themselves had directed approval of a similar appointment in relaxation of the earlier Government order, requiring appointment of a protected teacher first. Petitioners submit that since the petitioners are in exactly identical circumstances, they are also entitled to similar orders in view of Ext.P10. By an order dated 1.6.2009, I directed as follows: “Government Pleader shall see that an affidavit is filed by the Secretary to Government, General Education Department as to why the benefits given in Ext.P9 Government Order cannot be given to the petitioners in this writ petition. Post in the daily list on 10.6.2009. W.P(C) No. 5391 of 2007 -3- Handover a copy of this order to the Govt. Pleader” 3. Pursuant thereto, an affidavit dated 10.6.2009 was filed by the 1st respondent which reads thus: “I. Y.Salahudin, S/o. M. Yoosuf Kunju, aged 53 years, residing at Thiruvananthapuram, now at Ernakulam do hereby solemnly affirm and state as follows: 1. I am the Deputy Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram. I know the facts of this case as disclosed from the relevant records. I have been authorised to swear to this affidavit on behalf of the 1st Respondent. 2. This Hon'ble High Court in the interim order in W.P(C) No. 5391/2007 observed how the G.O.(Rt) No. 1907/2006/G.Edn. dated 10.5.2006, G.O.(Rt) No. 3104/05/G.Edn. dated 21.6.2005 and letter No. 72889/05/G.Edn dated 23.3.2006 have been passed in violation of G.O.(P) No. 178/02/G.Edn. dated 28.6.2006 have been passed in violation of G.O.(P) No. 178/02/G.Edn. dated 28.6.2006. The court also asked since the petitioners claimed benefits of these Government Orders mentioned above why such benefit cannot be granted to the 2nd petitioner in W.P(C) No. 5391/2007. 3. It is submitted that in G.O.(Rt) No. 1907/2006/G.Edn dated 10.5.2006, Government have approved the appointment of teachers and non-teaching staff of MMET, Melmur with effect from their date of appointment subject to the condition that the next arising vacancies should be filled up with protected hand. The above G.O.was issued in a situation where practical difficulty was found to redeploy the teacher already working in Government Schools to new Schools as stipulated in G.O.(P) No. 178/02/G.Edn. dated 28.6.2007 as this will cause disruption in the academic functions of the school. The letter No. 72889/B1/05/G.Edn dated 23.3.2006 was issued in the circumstances that two posts of LPSAs were vacant with effect from 20.6.2005 and even after appointing Smt. Lafia one post was kept vacant. As per G.O.(Rt) No. 3104/05/G.Edn. dated 21.6.2005. Government have approved the appointment made in AMHS, Vengoor during 2003 in relaxation of the conditions that the posts are to be filled up with W.P(C) No. 5391 of 2007 -4- protected teachers. 4. Deployment of protected teachers to Government schools on working arrangement is only a temporary measure for utilizing their service till permanent hands are appointed. As such those deployed protected teachers can be recalled and appointed in new aided schools offering their appointment. But the Managers are not willing to do it but are appoint fresh hands in the schools raising argument that list of protected teacher was not made available. The view of the Government is that if there were no protected teacher, whether deployed or un-deployed then only fresh appointments can be made. What was intended by term undeployed protected teachers was that in some cases, by fall in student, strength, when certain teachers are rendered excess and if they are eligible for the benefits of protection, orders are issued either deploying them to aided or Government schools or retaining them in the schools where they were working until orders are passed either deploying them or granting them the benefit of same school retention, they continue as protected undeployed teachers. Even teachers deployed to Government schools are entitled to be redeployed in aided schools in arising vacancies as per the provisions of the Government Orders. 5. It is submitted that the petitioner cannot claim the benefit given in letter No. 72889/B1/05/G.Edn. dated 23.3.2006. G.O.(Rt) No. 1907/06/G.Edn. dated 10.5.2006 and G.O.(Rt) No. 3104/05/G.Edn. dated 21.6.2005 as these orders have no general applicability. The orders were issued exclusively in particular cases, in situation where the relaxation of rules were essential or where circumstances of the case demanded so. All the facts stated above are true to the best of my knowledge, belief and information.” By order dated 22.6.2009, I observed thus: “By order dated 1.6.2009, I directed the learned Government Pleader to file an affidavit by the Secretary to the Government, General Education Department, as to why the benefits given in Ext.P9 Government order to another similarly situated school cannot be given to the petitioners in this writ petition. Today when the matter was taken up, the Government Pleader submits that Ext.P9 order itself is wrong and the petitioners cannot seek the benefits arising from a wrong order. But when W.P(C) No. 5391 of 2007 -5- the Court pointed out to the Government Pleader that if the Government is of opinion that an order passed by them is wrong, they had a duty to correct the same properly, which has not been done, the learned Government Pleader seeks time to get instructions on the same. Post after two weeks.” Again I passed the following order on 27.7.2009. “When the Court pointed out that the explanation given in paragraph 3 of the affidavit dated 10.6.2009 filed by the Government is not satisfactory, in so far as the conditions mentioned therein are equally applicable to the petitioners' school also, the learned Government Pleader seeks further time. Post after a week.” 4. Now another counter affidavit has been filed by the 3rd respondent producing Ext.R3(a) bond executed by the 1st petitioner, wherein he had got an earlier appointment approved on condition that the petitioner is prepared to appoint a protected teacher. The petitioners' answer to the same is that in respect of every appointment a Manager is expected to produce such a bond in accordance with Rule 6 (viii) and that is not peculiar to the petitioners' case of Chapter V of K.E.R. 5. I am thoroughly unhappy with the conduct of the Government in passing Government Orders requiring Managers of new schools to follow certain procedure is appointment of teachers and then exempting certain Managers from the rigour of such W.P(C) No. 5391 of 2007 -6- Government Orders while at the same time denying similar relief to others, which is what has happened in this case. I have no doubt that when the Government orders require appointment of a protected teacher before appointing others, Managers are bound to comply with that order for the purpose of getting approval of other appointments. But when the Government themselves depart from the Government Orders exempting one school to appoint persons of their choice without appointing protected teachers, it would be a denial of justice and violation of Articles 14 and 16 of the Constitution of India to deny similar benefit to others. In fact, the petitioners are on a better footing, insofar as the 1st petitioner had in Ext.P5 requested for details regarding protected teachers which was never given to the petitioners except numbers of protected teachers in the district. The 1st petitioner cannot appoint a member. He can only appoint persons with details of persons to be appointed which were not supplied by the DEO. The 1st petitioner cannot be found fault with for not appointing a protected teacher since he had requested for the details which were not furnished to him. He also cannot be expected to find details of a protected teacher to be appointed. That being so, I am of opinion that the petitioners should also be given the very same benefit as in Ext.P10. The distinction between the two cases attempted to be W.P(C) No. 5391 of 2007 -7- drawn by the Government is clearly illogical. Accordingly Exts.P1 to P4 orders are quashed and the 4th respondent is directed to approve the appointment of the 2nd petitioner, subject to the condition that the 1st petitioner shall not make any further appointments in his school before appointing a protected teacher. As soon as the next vacancy arises, the 1st petitioner shall request the DEO for details for protected teachers to be appointed, the 3rd respondent shall promptly supply the names and addresses of protected teachers who are awaiting such appointment, and the 1st petitioner shall appoint one among them. Hereafter the Government shall either refrain from granting relaxation to some schools in that regard or give such relaxation to all schools. Orders in this regard shall be issued as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE rhs