IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 35693 of 2007(Y) --------------------------------------- PETITIONER(S): ------------------------ CLERIN ARCH (H.S.A.), HOLY INFANT BOYS HIGH SCHOOL, EDAPPADAM, VARAPPUZHA, ERNAKULAM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ------------------------- 1. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DIST. EDUCATIONAL OFFICE, ALUVA. 2. DY. DIRECTOR (EDUCATION), OFFICE OF THE DY. DIRECTOR (EDUCATION), ERNAKULAM. 3. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. THE MANAGER, CORPORATE EDUCATIONAL AGENCY, ST.PIUS X, MANJUMMAL PROVINCE CARMELITE PROVINCIAL HOUSE, P.B.NO.3032, KOCHI-18, REP. BY ITS MANAGER. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35693/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER OF THE SIT RESPONDENT DT. 13.12.04. P2:- COPY OF THE GOVT. ORDER DT. 15.2.82. P3:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 31.3.05. P4:- COPY OF THE GOVT. ORDER DT. 6.4.06 OF THE 3RD RESPONDENT. P5:- COPY OF THE G.O.(P) 178/02/G.EDN. DT. 15.10.07 OF THE 4TH RESPONDENT. P6:- COPY OF THE G.O.(MS) 347/98/G.EDN. DT. 1.9.98. P7:- COPY OF THE G.O.(RT) 585/99/G.EDN. DT. 4.2.99. P8:- COPY OF THE G.O.(P) 403/02/G.EDN. 4.12.02. /TRUE COPY/ P.S. TO JUDGE tss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 35693 OF 2007 Y = = = = = = = = = = = = = = = Dated this the 23rd day of October 2008 J U D G M E N T The prayer in this writ petition is to quash Exts. P1 to P4 and to declare that the petitioner's appointment as H.S.A. (Maths) from 2.8.2004 to 25.9.2009 is liable to be approved and salary paid. 2. Petitioner was appointed by the 4th respondent in a leave vacancy for the period 2.8.2004 to 25.6.2009. By Ext. P1 approval was rejected by the DEO. Appeals were rejected by the Deputy Director and D.P.I. as per Exts. P3 and P4. The Government by Ext. P5 rejected her revision. It is in this background, the writ petition has been filed. 3. When the writ petition was taken up for hearing counsel for the petitioner relied on Exts. P6 to P8 Govt. Orders, and also the G.O.(P) 178/2002/G.Edn. dated 28.6.2002 and also the Govt. Letter No. 66194/J1/02/Gl.Edn. dated 21.12.2002 to the Advocate General's Office, mentioned in Ext. P8. It is contended that in view W.P.(C) No. 35693 OF 2007 -2- of the above, the Managers are at liberlty to make appointments to leave vacancies from open market. It is the correctness of this contention which arises for consideration. 4. Ext. P6 order dated 1.9.1978 provided that all vacancies arising in the newly opened or upgraded schools, shall be filled up by protected teachers, if there are no Rule 43 and 51A claimants. That order was kept in abeyance by Ext. P7 Govt. Order dated 4.2.1999. While so, the Government issued G.O.(P) 178/2002/G.Edn. dated 28.6.2002 directing that the managers of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. Subsequently, referring to the aforesaid Govt. Order dated 28.6.2002 Ext. P8 Govt. Order was issued, by which only clauses (iv), (v) and (viii) were deleted and therefore objection to appoint protected teachers remained. 5. It was still later that the Government issued letter No. 66194/J1/02/Gl.Edn. dated 21.12.2002, informing that the ratio fixed in Ext. P8 has been deleted and that “at present there is no embargo to fill up leave vacancies more than two months”. It is this W.P.(C) No. 35693 OF 2007 -3- sentence which the learned counsel for the petitioner wants to be understood as giving liberty to the managers to make appointments from open market. 6. Having considered this matter, in the light of the counter affidavit, I am not persuaded to agree with the counsel for the petitioner. The freedom to make appointments to leave vacancies of more than two months duration only means that appointments can be made to such leave vacancies. It does not mean that by this sentence, the obligation to appoint protected teachers has been dispensed with by the Government. In that view of the matter, necessarily, appointments can be made only by protected teachers and the interpretation to the contrary, does not merit acceptance. Therefore, the impugned orders are liable to be sustained and as a necessary consequence, the writ petition is only to be dismissed and I do so. However, it is clarified that this judgment will not stand in the way of the petitioner claiming from the Manager the wages for the period she has worked. ANTONY DOMINIC JUDGE jan/-