IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 19979 of 2008(C) -------------------------- PETITIONER(S): --------------- 1. SREEKALADAS, UPSA, T.K. MADHAVAN MEMORIAL U.P. SCHOOL, VAIKOM. 2. K.P. JAYALAKSHMI, UPSA, T.K. MADHAVAN MEMORIAL U.P. SCHOOL, VAIKOM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAM PRASANTH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY. 3. THE ASSISTANT EDUCATIONAL OFFICER, VAIKOM. 4. THE MANAGER, T.K. MADHAVAN MEMORIAL U.P. SCHOOL, VAIKOM. R1 TO R3 BY GOVT PLEADER SMT.SMITHA SUKUMAR R4 BY ADV. SRI.T.R.SADEESAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.19979/08 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.05 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P2: TRUE COPY OF THE APPOINTMENT ORDER DATED 2.6.05 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER. EXT.P3: TRUE COPY OF THE ORDER NO.C 1971/05/L.DIS DATED 30.9.05 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER NO.C.1972/05/L.DIS DATRED 24.10.05 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P5: TRUE COPY OF the GOVERNMENT ORDER NO.C.U.P.NO.46/2006 / PO.V DATED 1.2.06 ISSUED BY THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF THE LETTER DATED 5.4.06 ISSUED BY THE 1ST RESPONDENT TO THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. EXT.P7: TRUE COPY OF THE REVISION PETITION FILED BY THE 2ND PETITIONER BEFORE the 1ST RESPONDENT DATED 1.9.06. EXT.P8: TRUE COPY OF THE GOVERNMENT ORDER NO.G.O(RT). 3687/07/G.EDN DATED 8.8.07 BY THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF THE ORDER NO.B1/7400/05/K.DIS DATED 2.11.06 OF THE 2ND RESPONDENT. EXT.P10: TRUE COPY OF THE REVISION PETITION FILED BY THE 1ST PETITIONER BEFORE THE GOVERNMENT DATED 1.12.2006. EXT.P11: TRUE COPY OF THE ORDER NO.8378/H3/08/GEDN DATED 27.3.08 FROM THE 1ST RESPONDENT TO THE DIRECTOR OF PUBLIC INSTRUCTION. EXT.P12: COPY OF THE ORDER NO.G.O(RT) NO.1413/G.EDN DATED 28.3.07 BY 1ST RESPONDENT. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.19979 OF 2008 ------------------------------------------- Dated this the 17th day of August, 2010 JUDGMENT 1.Petitioners were appointed as UPSAs in an aided school of which the 4th respondent is the Manager. It is a school which had an obligation to appoint a protected teacher, i.e., to say, a teacher who had been retrenched from another school on account of division fall and who was allotted by the statutory authorities to the 4th respondent school for appointment as protected teacher. Such appointments of protected hands are governed by executive orders. When the question of approval of the appointments of the petitioners went up to the statutory authority, they took the stand that the Manager having appointed a protected teacher only after the appointment of the petitioners, approval of the appointment of the petitioners would be granted only with effect from the date on which the protected teacher was appointed. This issue has to be answered by considering the nature and effect of the executive WPC.19979/08 2 decision of the Government requiring the appointment of protected hands vis.a.vis. the statutory entitlement of the Manager to make appointments subject to approval, as also the manner in which the Government have applied the executive decision regarding protection as has been noticed in a different case also. 2.Power to make appointment is with the Manager. Vacancy has to be identified. In the case in hand, the fact that there were two vacancies and the appointments of the petitioners were made as against existing vacancies is not disputed. So much so, within the framework of the Kerala Education Act and Rules, there is no room to refuse the approval of the appointment of the petitioners who were admittedly qualified. As against those statutory provisions, the executive decision of the Government stood requiring the Managers to appoint a protected teacher. But that cannot have an overriding effect to take away the entitlement of a teacher appointed under a WPC.19979/08 3 statutory proceedings to have approval from the date of issuance of the appointment order by the Manger who is the competent authority. Approval has a strong nexus to the entitlement of the teacher to draw emoluments etc. and therefore, in my view, that would visit the teacher with adverse civil consequences. So much so, the statutory rule will have to be preferred over the executive decision of the Government and the executive order requiring the Manager to make appointment of the protected teacher, particularly when the Government have also essentially toned this line in Ext.P12. This fact and the conduct of Government has also been noticed by this Court in the judgment dated 5.8.2010 in W.P(C).No.24599/07 and connected cases. 3.For the aforesaid reasons, the impugned orders are quashed and it is declared that the petitioners are entitled for approval of their appointments under the 4th respondent as per Exts.P1 and P2 with effect from 1.6.2005 and 2.6.2005 respectively. WPC.19979/08 4 They are also entitled to all consequential benefits on account of such approval. The writ petition is allowed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.18/08.