IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 8039 of 2008(F) ------------------------------------ PETITIONER(S): --------------------- SRI.V.SURESH, S/O.C.VELUKUTTY, AGED 38 YEARS, H.S.A. (MUSIC), R.P.M.H.S., PANANGATTIRI, PALAKKAD, RESIDING AT PULICKAL HOUSE, KOLLANGODE (VIA), PANANGATTIRI, PALAKKAD. BY ADV. MR.C.UNNIKRISHNAN (KOLLAM) MR.S.HARIKRISHNAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE D.E.O., PALAKKAD. 5. THE MANAGER, R.P.M.H.S., PANANGATTIRI, PALAKKAD. 6. SMT. SHYAMA, H.S.A. (ENGLISH), R.P.M.H.S., PANANGATTIRI, PALAKKAD. 7. SMT. RESHMI, H.S.A. (MALAYALAM), R.P.M.H.S., PANANGATTIRI, PALAKKAD. 8. SMT. INDHU, H.S.A. (SCIENCE), R.P.M.H.S., PANANGATTIRI, PALAKKAD. R1 TO R4 BY GOVERNMENT PLEADER MR.V. TEK CHAND R6 TO R8 BY ADV. MR.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. R5 BY ADV. MR.V.A.MUHAMMED, MR.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 8039/2008-F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 15/07/2004. EXT.P2: COPY OF THE DECLARATION DATED 15/07/2004. EXT.P3: COPY OF THE CHANGE OF STAFF STATEMENT DATED 15/07/2004. EXT.P4: COPY OF THE STAFF LIST DATED 15/07/2004. EXT.P5: COPY OF THE LETTER ISSUED BY THE MANAGER TO THE DEO FOR PERMISSION TO CONVERT DRAWING POST INTO MUSIC. EXT.P6: COPY OF THE REJECTION ORDER NO.L.DIS/B5/5747/04 DATED 13/12/2004 OF THE DEO. EXT.P7: COPY OF THE ORDER NO.B4/29501/04/K.DIS DATED 04/06/2005. EXT.P8: COPY OF THE ORDER NO.K DIS 1470/05/B4 DATED 11/07/2005 ISSUED BY THE DDE. EXT.P9: COPY OF THE CIRCULAR NO.H1/20811/05/DPI DATED 04/05/2005 ISSUED BY THE DPI. EXT.P10: COPY OF THE REPRESENTATION DATED 03/10/2005 SUBMITTED BY THE MANAGER BEFORE THE HONOURABLE MINISTER FOR EDUCATION. EXT.P11: COPY OF THE G.O.(P)NO.46/06/G. EDN. DATED 01/02/2006 ISSUED BY THE GOVT. EXT.P12: COPY OF THE COMMUNICATION NO.11329/J2/06/G.EDN. DATED 23/02/2006 ISSUED BY THE GOVT. TO THE DPI. EXT.P13: COPY OF THE COMMUNICATION NO.H1/54683/04 DATED 01/07/2006 OF THE DPI TO GOVT. EXT.P14: COPY OF THE REPRESENTATION DATED 15/11/2006 SUBMITTED BY THE PETITIONER AND 13 OTHERS BEFORE THE GOVT REQUESTING TO APPROVED THEIR APPOINTMENT. EXT.P15: COPY OF THE JUDGMENT DATED 21/12/2006 IN W.P.(C). NO. 34234/06. EXT.P16: COPY OF THE REJECTION ORDER NO.B5-4219/05 K.DIS DATED 17/01/2007 ISSUED BY THE DEO PALAKKAD. EXT.P17: COPY OF THE PETITION NO.41/06-07 DATED 01/02/2007 PREFERRED BY THE MNAGER BEFORE THE DDE, PALAKKAD AGAINST P16. EXT.P18: COPY OF THE G.O.(RT)NO.219/2007/G.EDN. DATED 21/05/2007. EXT.P19: COPY OF THE REQUEST LETTER DATED 04/07/2008 SUBMITTED BY THE 5TH RESPONDENT, MANAGER BEFORE THE 3RD RESPONDENT, DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. EXT.P20: COPY OF THE LETTER DATED 05/01/2009 SUBMITTED BY THE 5TH RESPONDENT, MANAGER BEFORE THE 3RD RESPONDENT, DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. W.P.(C). NO. 8039/2008-F EXT.P21: COPY OF THE CIRCULAR NO.H(1)76325/08/DPI DATED 15/11/2008 ISSUED BY THE 2ND RESPONDENT, DIRECTOR OF PUBLIC INSTRUCTIONS TO THE 4TH RESPONDENT, D.E.O. PALAKKAD. RESPONDENT'S EXHIBITS: EXT.R8(a): COPY OF THE APPOINTMENT ORDER OF 6TH RESPONDENT DATED 18/06/2003. EXT.R8(b): COPY OF THE APPOINTMENT ORDER OF 7TH RESPONDENT DATED 02/06/2004. EXT.R8(c): COPY OF THE APPOINTEMENT ORDER OF 8TH RESPONDENT DATED 02/06/2005. //TRUE COPY// P.S. TO JUDGE Rs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8039 of 2008-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2009. JUDGMENT The petitioner is aggrieved by Exts.P16 and P18 orders by which the the conversion of post of a Drawing Teacher to that of Music Teacher has been rejected. 2. A vacancy arose in the school due to the retirement of a Drawing Teacher. The Manager sought for conversion of the post of Drawing Teacher into a Music Teacher as per Ext.P5 and appointed the petitioner as Music Teacher. Ext.P5 was rejected by the District Educational Officer without any reason. Consequently, the approval was also rejected. An appeal was filed before the Deputy Director of Education against these orders and Exts.P7 and P8 orders were passed by the Deputy Director of Education. As per Ext.P7, a post of Music Teacher was sanctioned instead of Drawing Teacher. As per Ext.P8, the District Educational Officer was directed to pass fresh orders regarding the approval of appointment in the light of Ext.P7. Again, by Ext.P16 the District Educational Officer refused to approve the appointment on the ground that no protected teachers have been accommodated in the school. wpc 8039/2008 2 3. Respondents 6 to 8 are newly appointed teachers in the very same school whose appointments have been approved without taking any objection regarding the non appointment of protected teachers. Exts.R8(a) to R8(c) are the said orders. 4. Learned counsel for the petitioner submitted that the insistence for appointment of a protected teacher, so as to deny approval of appointment of the petitioner cannot be said to be correct in the light of Exts.P11 and P21 orders passed by the Government as well as the Director of Public Instruction. The scheme of appointment of protected teachers in newly sanctioned and newly upgraded schools after 1979 was formulated by the Government as per Govt. Order dated 28.6.2002 and by Ext.P11, revised orders were passed. The obligation under Ext.P11 will only be that the Manager should appoint at least one teacher from the list of protected teachers. Ext.P21 is the circular issued by the Director of Public Instruction in respect of schools which were started prior to 1990 or upgraded before that date. One vacancy can be earmarked for appointment of protected teachers. There cannot be any objection regarding the approval of appointment of other teachers. 5. Therefore, the obligation of the Manager is mainly to appoint one protected teacher in the school. Going by the circulars issued by the wpc 8039/2008 3 Director of Public Instruction, the Deputy Director of Education has to forward a list of protected teachers to the Manager for making appointment. In this case, learned counsel for the petitioner submits that so far no such list has been forwarded. This is supported by Ext.P19 which is a proposal submitted by the Manager to the Deputy Director of Education. The Manager has requested to supply a list of protected teachers (Social Science) for appointment. Again, by Ext.P20, the details of the vacancy in H.S.A. (Social Science) have also been forwarded. Learned counsel appearing for the Manager submitted that so far no such list has been forwarded by the Deputy Director of Education. A letter dated 14.1.2009 addressed by the District Educational Officer, Palakkad to the Deputy Director of Education, Palakkad was also placed for perusal, wherein, in respect of the request made by the Manager, the D.E.O. has recommended that the request of the Manager to appoint one protected teacher as H.S.A. (Social Science) may be considered and accordingly one teacher may be accommodated. Therefore, the same will satisfy the requirement of the circulars and there cannot be any objection regarding the approval of appointment of the petitioner. Learned counsel for the petitioner relied upon the judgment of this court in Writ Petition No.2563/2008 wherein it was held that if a list of protected hands has not been made available as wpc 8039/2008 4 required, the Manager cannot be faulted for not appointing the protected hands. It was further held that the appointment of the teacher therein ought to have been approved. 6. In the above view of the matter, Ext.P16 is quashed. The order Ext.P18 passed by the Government to the extent it adversely affects the right of the petitioner for getting approval is also set aside. The appointment of the petitioner is liable to be approved. The 4th respondent will take up the matter afresh and pass fresh orders regarding the approval of appointment of the petitioner in accordance with Exts.P7 and P8 bearing in mind the principles stated in Exts.P11 and P21 also. Appropriate orders will be passed within a period of two months and consequential monetary benefits also will be released to the petitioner. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/