IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 WP(C).No. 34809 of 2010(A) --------------------------------------- PETITIONER(S): ---------------------- RATHI. P., W/O.UDAYAKUMAR. K., PUTHENVEEDU, MAHADEVIKKADU, KARTHIKAPPILLY. P.O., ALAPPUZHA (FULL TIME MENIAL, SNT HSS, NANGYARKULANGARA) BY ADV. SRI.S.SUBHASH CHAND, SRI.T.NIKLAVU. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION (J), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA, PIN-688 001. 4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, PIN-688 524. 5. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA, PIN-686 001. 6. THE CORPORATE MANAGER, SN TRUSTS SCHOOLS, P.B.NO.63, KOLLAM, PIN-691 001. R1 TO R5 BY GOVT. PLEADER SMT.NISHA BOSE. R6 BY ADV. SRI.A.N.RAJAN BABU, SRI.P.GOPALAKRISHNAN (MVA). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2011, ALONG WITH WP(C) NO. 34948 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 34809 of 2010(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNICATION BEARING NO.SNT/318/05 DATED 05/11/2005 ISSUED BY RESPONDENT NO.6 TO RESPONDENT NO.4. EXT.P1(a): COPY OF THE ORDER BEARING NO.SNT/92/2006 DATED 11/07/2006 ISSUED BY RESPONDENT NO.6. EXT.P2: COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO.178/02/G.EDN. DATED 28/06/2002. EXT.P3: COPY OF THE GOVERNMENT ORDER DATED 09/02/2009 AND THE ANNEXURE LIST APPENDED TO THE SAME. EXT.P4: COPY OF THE COMMUNICATION DATED 06/01/2001 ISSUED BY THE PUBLIC INFORMATION OFFICER, OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA. RESPONDENT'S EXHIBITS: ANNEXURE R6(a): COPY OF THE CERTIFICATE DATED 24/06/2011. //TRUE COPY// P.A. TO JUDGE rs T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.34809/2010-A & 34948/2010-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11 th day of July, 2011 J U D G M E N T These writ petitions are filed at the instance of petitioners who are seeking approval of appointment in the post of Full Time Menial and Lower Division Clerk respectively in the light of the direction issued by the Government as per Ext.P3 in W.P.(C).No.34809/2010 [Ext.P6 produced in W.P.(C).No.34948/2010]. 2. The facts of the respective cases show the following: In W.P.(C).No.34809/2010, the petitioner entered service on 05/11/2005 as Full Time Menial in S.N.T Higher Secondary School, Mararikulam in Cherthala. She was appointed in a promotion vacancy of one Shri Babu Vijayanath who was promoted as Peon in the said schoo1. The appointment order and other documents were presented for approval. During this period she was transferred from S.N.T H.S.S., Mararikulam, Cherthala to S.N.T. H.S.S., Nangyarkulangara and accordingly, she is working in that schoo1 as Full Time Menial. Ext.P1 (a) is the said order issued by the Management. W.P.(C). Nos.34809/2010 & 34948/2010 -:2:- 3. The petitioner in W.P.(C).No.34948/2010 entered service on 12/08/1999 as Full Time Menial in Padmanabhodayam Higher Secondary Schoo1, Mezhuveli. She was later promoted as Lab Assistant in the very same schoo1 by appointment order dated 11/10/2000 and the said appointment was approved by the Director of Higher Secondary Education, Thiruvananthapuram with effect from 28/03/2003 and subsequently she was transferred to S.N.T H.S.S., Mararikulam, Cherthala as per order dated 05/06/2001. These orders are produced as Exts.P1 to P3. During this period, she was promoted and appointed as Lower Division Clerk in the High Schoo1 Section of the said school with effect from 22/02/2005 as per Ext.P4 order. 4. The Government Order, Ext.P3 produced in W.P. (C).No.34809/2010, was issued in the light of various circumstances with regard to the delinking of pre- degree courses from Colleges to introduce Higher Secondary Courses in High Schoo1s and also the scheme to deploy protected teachers. A reading of said order shows that going by the scheme with regard to W.P.(C). Nos.34809/2010 & 34948/2010 -:3:- redeployment of protected teachers, new schoo1s which were established after 1979 or upgraded after that year are to fill up the vacancies only by protected teachers. But the Managements took up the matter before the Government in respect of the schools which have been sanctioned after the delinking of Pre-Degree courses in the year 2000. Accordingly, the matter was examined by the Government in detail and Ext.P3 order was issued. 5. The whole case depends upon the interpretation of Government Order. It is clear from Ext.P3 order that there is a direction to approve the appointment of persons like the petitioners whose schoo1 viz. S.N.T H.S.S, Mararikulam has been included as Serial No.10. The name of the petitioner in W.P.(C).No.34948/2010 is included as Serial No.(4) against item 10 and the petitioner in W.P.(C).No.34809/2010 is included as Sl.No.(5) against the same. They were appointed on 05/11/2005 and 22/02/2005. 6. Learned counsel for the petitioners and the learned counsel appearing for the Management submitted W.P.(C). Nos.34809/2010 & 34948/2010 -:4:- that a reading of Ext.P3 produced in W.P.(C). No.34809/2010 will show that the direction is to approve the appointment from 01/02/2006 and there is no pre-condition that the approval can be granted only after appointing a protected teacher. The learned Government Pleader submitted that the approval of appointment can be made only if the Management appoints a protected teacher. 7. The position as of now appears to be that the District Educational Officer has returned the appointment orders along with other documents as the Management has not appointed protected teachers which according to the District Educational Officer is a pre- condition to implement the Government Order and the said stand is clear from the counter affidavit filed on behalf of the District Educational Officer also. 8. But a reading of Ext.P3 order, produced in W.P.(C).No.34809/2010, shows the other way. The Government has traced out the history with regard to the various Government Orders requiring absorption of protected teachers in all the vacancies as well as new W.P.(C). Nos.34809/2010 & 34948/2010 -:5:- schoo1s which have been established after 1979 or upgraded after that year. But with regard to the schoo1s which have been established after the delinking of Pre-degree in the year 2000, the Government found that they are entitled for relaxation. It was made clear in Ext.P3 that it will be subject to certain conditions including a condition that it will not be treated as a precedent. Accordingly, the Government directed the Educational Officers concerned to approve the appointment of teachers and non teaching staff whose names are given appended in Ext.P3 itself. Condition No.i is that in these schoo1s, from the list of protected teachers at least one teacher should be appointed and even after redeployment of this protected teacher to the parent schoo1 or if a vacancy is created by other means, in the resultant vacancy another protected teacher should be appointed. Condition No.ii is to the effect that for granting approval, it should be verified whether the post has been sanctioned and whether the persons concerned have got the required qualification. Condition No.iii is important as it is W.P.(C). Nos.34809/2010 & 34948/2010 -:6:- specified that the appointment of the persons listed therein have to be approved from 01/02/2006 or from the date of appointment whichever is later. Condition No.iv does not apply as far as these cases are concerned as it prohibits appointments in additional division vacancies only. 9. Therefore, evidently, the appointment of a protected teacher is not a pre-condition for approving the appointment of the respective teachers/non-teaching staff. The said position is clear from Condition No.iii wherein already a direction is there to approve the appointment from 01/02/2006 or from the date of appointment whichever is later. No pre-condition is incorporated, evidently since the approval will have to be granted on the date specified therein. Therefore, the stand taken by the District Educational Officer that for implementing the Government Order the Management will have to appoint a protected teacher first and then move for approval is not correct. Further, going by the counter affidavit filed by the Corporate Manager, it can be seen that the Manager has W.P.(C). Nos.34809/2010 & 34948/2010 -:7:- already fulfilled the obligation by appointing a protected teacher. 10. In the counter affidavit filed by Manager, sixth respondent in W.P.(C).No.34809/2010, in para.5 it is stated that the Management has absorbed one protected teacher, namely Shri Satheesh T. from St.Raphel H.S, Ezhupunna in S.N.T H.S.S., Cherthala as per order No.A4/17829/03 dated 10/12/2003 of the Deputy Director of Education, Alappuzha. Shri Satheesh T. joined duty in the schoo1 on 19/07/2004 and he was absorbed in his parent school with effect from 10/11/2005. The petitioner in W.P.(C).No.34809/2010 was appointed on 05/11/2005 and before that day, the Management has already appointed a protected teacher who was continuing in that schoo1. It is pointed out that another protected, namely, Smt.V.Indu Kumari, H.S.A. (Malayalam) was also deployed in schoo1 and she joined the school on 10/01/2005 and continued there upto 18/05/2005 till she was recalled to her parent school. It is further pointed out that the Management kept one vacancy in H.S.A. (Malayalam) for appointment W.P.(C). Nos.34809/2010 & 34948/2010 -:8:- of a protected teacher. It is also pointed out in para.7 of the counter affidavit that later another protected teacher Smt.Remaniamma from P.U.P.H.S Pallickal was also deployed by the Deputy Director of Education to be absorbed in S.N.T.H.S.S., Mararikulam, Cherthala as per order No.A4/3282/09, dated 22/02/2011 and that she was appointed there and she joined duty in the said school on 23/03/2011 which is evident from Annexure R6(a) certificate. 11. Therefore, in these cases, evidently, the Manager has already complied with the obligation to appoint a protected teacher and thereby two protected teachers were there at the time of appointment of the petitioners and as on the date of appointment of the petitioner in W.P.(C).No.34948/2010 one more appointment of a protected teacher has also been made. Therefore, the direction in Ext.P3 Government Order to absorb one protected teacher has already been fulfilled by the Manager. Apart from that the approval of appointment of the petitioners ought to have been granted and that too without insisting for a pre- W.P.(C). Nos.34809/2010 & 34948/2010 -:9:- condition to absorb a protected teacher. Therefore, the petitioners are entitled to succeed in these writ petitions and the writ petitions are allowed. 12. It is declared that in implementation Ext.P3 Government Order produced in W.P.(C).No.34809/2010 (Ext.P6 produced in W.P.(C).No.34948/2010) the appointment of the petitioners are liable to be approved from 01/02/2006 subject to the proof regarding the qualification, which is not under dispute going by the averments in the counter affidavit. 13. It is submitted by the learned Government Pleader that the Manager will have to resubmit the documents for passing orders on approval. Therefore, on the Manager re-submitting the proposal along with necessary documents, appropriate orders will be passed approving the appointment of the petitioners within two months from the date of receipt of the documents. The petitioners will be granted the consequential monetary benefits also. No costs. (T.R. Ramachandran Nair, Judge.) ms