IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 23381 of 2009(P) --------------------------------------- PETITIONER(S): --------------- 1. MATHEW JOSEPH, H.S.A.(ENGLISH), P.T.CHACKO MEMORIAL HIGH SCHOOL, KUNDUTHODU, KOZHIKODE DISTRICT. 2. PHILOMINA MATHEW, U.P.S.A., ST.JOSEPH'S U.P.SCHOOL, MYLELLAMPARA, THAMARASSERY, KOZHIKODE DISTRICT. 3. CHITHRA PHILIP, U.P.S.A., ST.JOSEPH'S U.P.SCHOOL, MYLELLAMPARA, THAMARASSERY, KOZHIKODE DISTRICT. 4. JISNAMOL JOSE, U.P.S.A., ST.JOSEPH'S U.P.SCHOOL, MYLELLAMPARA, THAMARASSERY, KOZHIKODE DISTRICT. 5. LAISSAMMA K.JOHN, U.P.S.A., ST.MARY'S HIGH SCHOOL, KAKKADMPOIL, KOODARANJI VIA., KOZHIKODE DISTRICT. BY ADV. SRI.P.J.MATHEW SRI.K.B.ARUNKUMAR RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. -2- WP(C)NO.23381/2009 4. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT. 5. ASSISTANT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT. 6. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF THAMARASSERY, KOZHIKODE DISTRICT. R1 TO R5 BY GOVERNMENT PLEADER SMT.NISHA BOSE R6 BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.23381/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPOINTMENT ORDER DATED 28/06/2007. P2 COPY OF THE APPOINTMENT ORDER DATED 27/06/2007. P3 COPY OF THE APPOINTMENT ORDER DATED 09/07/2007. P4 COPY OF THE APPOINTMENT ORDER DATED 11/07/2007. P5 COPY OF THE APPOINTMENT ORDER DATED 27/06/2007. P6 COPY OF THE LETTER TO THE AEO, THAMARASSERY DATED 03/08/2006. P7 COPY OF THE LETTER DATED 16/08/2007. P8 COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 14/11/2007. P9 COPY OF THE LETTER OF THE 3RD RESPONDENTTO THE 5TH RESPONDENT DATED 22/04/2008. P10 COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 22/09/2008. P11 COPY OF THE ORDER DATED 24/09/2008. P12 COPY OF THE ORDER IN APPEAL PASSED BY THE 4TH RESPONDENT IN THE CASE OF THE 3RD RESPONDENT DATED 24/09/2008. P13 COPY OF THE ORDER IN APPEAL PASSED BY THE DEO IN THE CASE OF THE 4TH PETITIONER. P14 COPY OF THE ORDER OF THE 5TH PETITIONER DATED 24/09/2008. P15 COPY OF THE REVISIONAL APPEAL IN THE CASE OF THE 1ST PETITIONER DATED 24/11/2008. P16 COPY OF THE ORDER OF THE ADDITIONAL D.P.I DATED 05/09/2009. P17 COPY OF THE ORDER DATED 05/02/2009 OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION IN RESPECT OF THE 2ND PETITIONER. P18 COPY OF THE ORDER OF THE ADDITIONAL D.P.I. PASSED IN REVISIONAL APPEAL IN RESPECT OF THE 3RD PETITIONER. P19 COPY OF THE ORDER DATED 05/02/2009. 2/- -2- WP(C)NO.23381/2009 P20 COPY OF THE ORDER DATED 05/02/2009. P21 COPY OF THE ORDER PASSEDIN THE REVISION IN THE CASE OF THE 2ND PETITIONER DATED 20/05/2009. P22 COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 06/04/2009 IN THE REVISION PETITION IN RESPECT OF THE 3RD PETITIONER. P23 COPY OF THE 4TH PETITIONER DATED 23/05/2009. P24 COPY OF THE ORDER DATED 06/04/2009 IS PASSED IN THE CASE OF THE 5TH PETITIONER. P25 COPY OF THE GOVERNMENT ORDER. P26 COPY OF THE GOVERNMENT ORDER DATED 24/08/2006. P27 COPY OF THE JUDGMENT DATED 24/09/2008 P28 COPY OF THE JUDGMENT DATED 01/06/2009 IN WP(C)NO.8039 OF 2008-F P29 COPY OF THE LETTER DATED 05/07/2011 ISSUED BY PUBLIC INFORMATION OFFICER OF AEO'S, THAMARASSERY. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.23381/2009-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of July, 2011 J U D G M E N T The petitioners are working in different schools under the sixth respondent-Corporate Manager. All of them entered service as Upper Primary Schoo1 Assistants in St.Joseph's U.P.S., Mylellampara. The first petitioner was appointed on 28/06/2007, the second petitioner on 27/06/2007, the third petitioner on 09/07/2007, the fourth petitioner on 11/07/2007 and the fifth petitioner on 27/06/2007. Subsequently, the first petitioner was promoted as High Schoo1 Assistant and transferred to P.T.Chacko Memorial High Schoo1, Kunduthodu and the fifth petitioner was transferred to St.Mary's High Schoo1, Kakkadampoil. The matter in dispute is in a short compass. All the appointments were approved with effect from 14/11/2007. The petitioners are claiming the approval with effect from the dates of their appointments since all the appointments were made in substantive vacancies. W.P.(C). No.23381/2009 -:2:- 2. The orders issued by the approving authority as well as the appellate and revisional authorities have been produced as Exts.P1 to P5 and P9 to P24 and the relief sought for is to quash the same to the extent to which the approval is denied from the actual dates of appointments. 3. The approval is restricted from 14/11/2007 for the reason that a protected hand was appointed only on that date. The communication regarding the deployment of the protected hand has been produced by the petitioners as per Ext.P6. Ext.P9 order is issued by the Deputy Director of Education to the Assistant Educational Officer. Therein, the direction is to get an undertaking from the Manager to appoint a protected teacher in the post of Lower Grade Sanskrit Teacher and approve the same from 14/11/2007. 4. The learned counsel for the petitioners and the learned counsel for the Manager submitted that there was no justification for denying the approval from the dates of their appointments itself. With regard to the obligation of the Manager to appoint a W.P.(C). No.23381/2009 -:3:- protected hand in the schoo1 which will come within the definition of new schoo1s, it is mentioned in para.11 of the writ petition that based on the agreement executed by the Manager, when the schoo1 was started, a protected hand was appointed in the year 1993 who left the schoo1 when a vacancy arose in the parent school and, thereafter, the vacancy of a Sanskrit Teacher was left unfilled and the same was reported to the Assistant Educational Officer and the Deputy Director of Education, and only on 14/11/2007 a protected hand was deployed by Ext.P8 order. 5. The counter affidavit filed by the Manager throws more light on the above aspect. It is mentioned in para.3 that in terms of Rule 6(viii) of Chapter V Kerala Education Rules and the agreement executed, the Manager appointed a protected teacher Shri V.P.Mohammed from Nediyanad L.P.School on 30/10/1983. He continued there as protected teacher till he returned to his parent schoo1 on 31/08/1984. The Junior Sanskrit Teacher of the schoo1 Shri Chandrasekhara Pillai R. expired on 09/08/2005 and that post was kept open for W.P.(C). No.23381/2009 -:4:- the deployment of another protected teacher. This was intimated in writing to the Assistant Educational Officer, Thamarassery as per Ext.P6 letter dated 03/08/2006. Again by Ext.P7 letter, a request was made to deploy a protected hand to fill up the vacancy in Junior Sanskrit Teacher post. Accordingly, the Manager contends that all the steps were taken to comply with the obligation under Rule 6(viii) of Chapter V K.E.R. It is further pointed out that only on 14/11/2007, one protected teacher was deployed to the schoo1. But the said teacher did not join and, thereafter, the Deputy Director of Education directed approval from 14/11/2007. 6. In the counter affidavit filed on behalf of the second respondent it is mentioned in para.3 that the Manager reported one post of Junior Sanskrit Teacher in the schoo1 with effect from 10/08/2005 for deployment of a protected teacher. But there was no protected teacher in the category of the Junior Sanskrit Teacher during that period. Hence the post was kept vacant by the Manager for appointing a W.P.(C). No.23381/2009 -:5:- protected teacher. The stand taken is that the Manager could have set apart one vacancy in another category also. 7. It is further mentioned in para.5 that the Manager was trying to evade the responsibility of appointing a protected teacher by earmarking the vacancy for Junior Sanskrit Teacher. But it is mentioned in para.5 also that the Manager was filling all the vacancies in the schoo1 by fresh appointment till 8/2005. 8. Therefore, the scenario as above points out to the manner in which the protected hand was deployed in terms of Rule 6(viii) of Chapter V K.E.R. The obligation of the Manager under Rule 6(viii) was initially undertaken by appointing one protected hand who went back to the parent schoo1 when a vacancy arose there. As on the dates of appointments of the petitioners one vacancy of Junior Sanskrit Teacher was set apart for appointing a protected hand. Exts.P6 and P7 will show that the Manager was even requesting the Department to deploy a protected hand. Even though, W.P.(C). No.23381/2009 -:6:- now in the counter affidavit, the stand taken is that the Manager did not set apart any other vacancies, it can be seen that after Exts.P6 and P7 were received and after finding that no protected Junior Sanskrit Teacher was available, no further direction was issued to the Manager to set apart any other vacancies for deploying a protected teacher. No list of protected teachers was also communicated to the Manager for making appointment in other vacancies also. Evidently, the appointments made prior to 2005 have been approved and no other teachers are waiting for approval. Herein, the date 14/11/2007 is chosen as date of approval since as on that date a protected hand was deployed to the schoo1. Therefore, the question is whether, the non availability of protected hand will work against the approval of appointments of the petitioners, with effect from the dates of appointments. It is not a case where the Manager was not acting in tune with the provisions of Rule 6(viii) of Chapter V K.E.R or the Government orders in this regard. W.P.(C). No.23381/2009 -:7:- 9. The learned Government Pleader invited my attention to the stipulations under G.O.(P). No.46/06/G.Edn., dated 01/02/2006 wherein various conditions have been provided for approval of appointments. Condition No.1 is that atleast one protected hand should be appointed in the schoo1s which were termed as newly opened/upgraded. Further it is provided that if the protected hand who is appointed is deployed back to the parent schoo1, then the Manager will have to fill up the residual vacancy or any other vacancy by appointing a protected hand. It is contended that this is a pre-condition for approving the new appointments. Further clarifications have been given in Circular No.38929/J1/2009/G.Edn., dated 19/11/2009 wherein it is mentioned that if for any reason a protected hand is not appointed then in the existing vacancy/first vacancy which arises after the redeployment of the protected teacher to the parent schoo1, the manager should appoint a protected hand from the list of protected teachers. True that the said Circular also provides for appointment of a W.P.(C). No.23381/2009 -:8:- protected hand after the protected hand, who was originally appointed, was redeployed to the parent schoo1. 10. Evidently, herein, as already noticed, after the communications Exts.P6 and P7 were received by the Department no other directions were issued to the Manager to keep any other posts vacant and no nominations of any other protected hands were made to fill up any other vacancy. In that view of the matter, the Manager cannot be find fault with for not earmarking any other vacancy for appointing a protected hand. The proposal made by the Manager to earmark the vacancy of Junior Sanskrit Teacher for appointing the protected hand was never rejected also. 11. As far as the petitioners are concerned, they are entitled for grant of approval with effect from their dates of appointments if all other conditions regarding appointment, namely, existence of vacancies, qualifications and eligibility are satisfied. 12. The learned counsel for the petitioners in this context relied upon the Judgments of this Court W.P.(C). No.23381/2009 -:9:- which have been produced as Exts.P27 and P28. In Ext.P27 Judgment in W.P.(C).No.2563/2008 dated 24/09/2008, this Court was of the view that “if list of protected hands has not been made available as required, the Manager cannot be faulted for not appointing the protected hands”, and this Court finally directed the Educational Officer to accord approval to the appointment of the petitioner therein. In Ext.P28 Judgment in W.P.(C).No.8039/2008 dated 01/06/2009 also, a similar issue was considered. Therein it was held that the obligation of the Manager was to appoint one protected teacher in the schoo1. It was a case where the list of protected teachers was not communicated even though one vacancy was earmarked by the Manager. Herein, the circumstance that the protected hand was not readily available cannot therefore, go against the rights of the parties, especially, the petitioners being new appointees awaiting approval. 13. Therefore, in the peculiar facts of the case, it cannot be said that there is a failure on the part of the Manager to comply with the directions issued by W.P.(C). No.23381/2009 -:10:- the Department. For all these reasons, the petitioners are entitled to succeed in the writ petition. The writ petition is therefore allowed. 14. The impugned orders to the extent to which the appointments are approved only from 14/11/2007 are quashed. It is declared that the petitioners are entitled for approval of appointments with effect from the dates of appointments, namely, the dates on which the vacancies have arisen and appropriate orders will be passed within a period of six weeks from the date of receipt of a copy of this Judgment and the monetary benefits will also be sanctioned and disbursed to them without further delay. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms