IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 WP(C).No. 25836 of 2010(D) ---------------------------------- PETITIONER(S): ------------------- SUBINA.A, HIYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, AMBALAPPUZHA EDUCATIONAL SUB DISTRICT, ALAPPUZHA DISTRICT. (AMPERETHU, KANNIMEL, VALLIKUNNAM P.O., ALAPPUZHA) BY ADVS. SRI.K.SASIKUMAR SRI.S.ARAVIND RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (S) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (ACADEMIC), THIRUVANANTHAPURAM - 695 001. 3. ASSISTANT EDUCATIONAL OFFICER, AMBALAPPUZHA - 688 561. 4. HEAD MASTER, HIYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, VANDANAM P.O., ALAPPUZHA DISTRICT - 688 560. 5. MANAGER, HIYATHUL ISLAM L.P.SCHOOL, NEERKUNNAM, VANDANAM P.O., ALAPPUZHA DISTRICT - 688 560. R1-3 BY GOVT. PLEADER SMT. RANI DIOTHIMA R-5 BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 25836/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DATED 02/06/2008 ISSUED BY THE 5TH RESPONDENT. P2: COPY OF THE ORDER DATED 14/07/2008 ISSUED BY THE 3RD RESPONDENT. P3: COPY OF THE INFORMATION SUPPLIED BY THE 3RD RESPONDENT ON 16/02/2010. P4: COPY OF THE ORDER DATED 20/11/2008 ISSUE DBY THE 3RD RESPONDENT. P5: COPY OF THE LETTER DATED 20/02/2009 FORWARDED BY THE 5T RESPONDENT TO THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA P6: COPY OF THE ORDER DATED 27/06/2009 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. P7: COPY OF THE ORDER DATED 02/01/2010 ISSUED BY THE 2ND RESPONDENT. P8: COPY OF THE PETITION DATED 28/01/2010 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P9: COPY OF THE FORWARDING LETTER DTED 15/02/2010 SENT BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT. P10: COPY OF THE ORDER DATED 16/07/2010 ISSUED BY THE 1ST RESPONDENT. P11: COPY OF THE GOVERNMENT ORDER DATED 28/06/2002. RESPONDENT'S EXHIBITS: R5(a):COPY OF THE ORDER NO.A/2501/2010 OF THE ASSISTANT EDUCATIONAL OFFICER, AMBALAPPUZHA. R5(b):COPY OF THE JDUGMENT OF THIS HONOURABLE COURT IN O.P.NO.7847/1983-A. R5(c):COPY OF THE -DO- IN W.A. NO.770/1987. R5(d):COPY OF THE -DO- IN W.A. NO.183/2010. R5 (e):COPY OF THE -DO- IN WPC. NO.29151/2009-L /TRUE COPY/ P.A. TO JUDGE. svs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25836 of 2010-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of August, 2011. JUDGMENT The petitioner’s appointment as L.P.S.A. ( Arabic F.T.) has been approved from 1.6.2010 on scale of pay. The denial of approval from 2.6.2008, viz. the date of appointment is under challenge in this writ petition. A retirement vacancy arose in the on 31.3.2008 in the post of L.P.S.A. (Arabic F.T.) and the petitioner was appointed by Ext.P1 appointment order. Ext.P2 is the staff fixation order for the year 2008-2009 which shows that there is a sanctioned post of Arabic Teacher (FT). 2. The objection raised against the approval at the relevant time was that a protected teacher was not absorbed in the in the rolls of the school (Ext.P4). The petitioner has produced Ext.P3 obtained under the Right to Information Act to show that there was no undeployed protected junior language teacher FT (Arabic) as on 2.6.2008 in the academic year 2008- 2009 in the Ambalapuzha Education Sub District. Therefore, it is contended that the objection cannot be sustained. It is further pleaded that as provided under Rule 6(viii) of Chapter V K.E.R., the manager had appointed a protected teacher as LPSA from 4.10.1980 and the said teacher retired from wpc 25836/2010 2 service on 31.3.1996. 3. After the retirement of the Headmaster on 31.3.2000, a vacancy of LPSA arose in the school and the Manager has accommodated a protected hand pursuant to the letter Ext.P5 forwarded to the Deputy Director of Education and Smt. V.B. Vidya has joined as protected hand on 1.7.2009. Even though the petitioner has filed appeals against the objection, finally the Government rejected it as per Ext.P10. 4. Learned counsel for the petitioner submitted that the approval of appointment only from the date of appointment of the protected teacher, cannot be justified. As on the date of appointment of the petitioner, no protected teacher in the said category was remaining in the Education Sub District for deployment. Therefore, it is pointed out that in the light of the dictum laid down by this Court in Moosakutty v.D.E.O., Wandoor (2009 (3) KLT 863), the petitioner is entitled for grant of approval from 2.6.2008 itself. 5. In the counter affidavit filed on behalf of respondents 4 and 5, Ext.R5(a) communication dated 29.10.2010 has been produced showing that as on 2.6.2008 in Ambalappuzha Education Sub District, there was no protected Arabic teacher for deployment. Reliance is placed on various judgments of this Court to show that the manager cannot be found fault in wpc 25836/2010 3 the matter. 6. In the counter affidavit filed by the third respondent, it is averred in para 2 that during the year 2008-2009 there were no undeployed protected Junior Arabic Teachers in the Sub District. Therefore, the stand taken is that for approval, at least one protected teacher should have been there. Para 3 shows that the appointment of the other teachers who were appointed by the manager, has been approved. 7. Learned counsel for the petitioner relied upon the judgment of this Court in W.P.(C) No.23557/2008 in respect of another teacher, wherein a similar issue was considered. This Court relied upon the dictum laid down in Moosakutty's case (2009 (3) KLT 863). Therein also, the contention was that as on the date of appointment of the petitioner, there was no protected hand, available for deployment. 8. In Moosakutty's case (2009 (3) KLT 863), this Court in paragraphs 6, 8 and 9 held thus: “Going by R.6 (viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-District in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the wpc 25836/2010 4 obligation as such is confined to the prescriptions of the said paragraph. Under R.9 of Chap.III the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “in conformity with the provisions of the Act and the Rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the Aided Primary School in Wandoor Educational Sub-District. This is in terms of sub-r.(viii) of R.6 of Chap. V, K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.III, K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P).No.83/88/G.Edn., dated 18.04.1988. An executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced.” The above judgment has become final, as the writ appeal was dismissed and the Special Leave Petition filed before the Apex Court, has also been dismissed. 9. Evidently, therefore, going by the facts of this Court, no protected Arabic teacher was available for deployment from Ambalappuzha Education Sub District. The question is whether the approval of appointment of the petitioner could be postponed till a protected teacher is wpc 25836/2010 5 deployed in the school. Actually, the same cannot be put against the petitioner in the light of the decision of this Court in Moosakutty's case (2009 (3) KLT 863) which was followed in W.P.(C) No.23557/2008. 10. For all these reasons, the petitioner is entitled to succeed in this writ petition. It is declared that the petitioner is entitled for approval of appointment from 2.6.2008. Exts.P7 and P10 to the extent to which the appointment was approved only from 1.7.2009 on daily wages and from 1.6.2010, on scale of pay are quashed. There will be a direction to the respondents to approve the appointment of the petitioner from 2.6.2008 and the consequential monetary benefits also will be sanctioned to the petitioner. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/