IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 16515 of 2010(L) PETITIONER: --------------- DIPINKRISHNA, S/O.UNNIKRISHNAN, PHYSICAL EDUCATION TEACHER, P.V.S.HIGH SCHOOL, ERANHIKKAL, KOZHIKODE DISTRICT. BY ADV. SRI.U.K.DEVIDAS RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEXE), THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 4. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE DISTRICT. 5. THE MANAGER, P.V.S.HIGH SCHOOL, ERANHIKKAL, KOZHIKODE DISTRICT. ADV. SRI.T.G.RAJENDRAN FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 5.6.2006. EXT.P2 TRUE COPY OF THE LEAVE SANCTIONING ORDER OF SRI.ASHOKAN C.K. DATED 28.12.2006. EXT.P3 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 20.6.2008. EXT.P4 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 19.8.2008. EXT.P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 2.6.2008. EXT.P6 TRUE COPY OF THE APPLICATION DATED 7.6.2008 FILED BY THE FIFTH RESPONDENT BEFORE THE THIRD RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER DATED 15.10.2008 PASSED BY THE THIRD RESPONDENT. EXT.P8 TRUE COPY OF THE APPEAL DATED 17.12.2008 FILED BY THE FIFTH RESPONDENT. EXT.P9 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 19.2.2009. EXT.P10 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 19.1.2009 ALONG WITH A COVERING LETTER OF THE CONCERNED M.L.A. DATED 28.2.2009. EXT.P11 TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 7.11.2009. EXT.P12 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT NO.H (1)/76325/08/DPI DATED 15.11.2008. EXT.P13 TRUE COPY OF THE LETTER DATED 25.5.2010 SEND BY THE FIFTH RESPONDENT TO THE THIRD RESPONDENT. EXT.P14 TRUE COPY OF THE ORDER DATED 17.7.2010 ISSUED BY THE THIRD RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 16515 OF 2010 L ------------------------------------------------------ Dated this the 9th day of November, 2010 JUDGMENT The petitioner was appointed as Physical Education Teacher in P.V.S.High School, Eranhikkal under the management of the fifth respondent, in a leave vacancy of one Ashokan.C.K., for the period from 5.6.2006 to 31.3.2007. It is stated that the educational officer rejected the proposal for approval of the appointment. The appeal filed by the Manager was dismissed as per Ext.P3 order dated 20.6.2008, passed by the Director of Public Instruction. Against Ext.P3 order, the petitioner filed Ext.P4 Revision before the Government. It is stated that Ext.P4 Revision is pending disposal. 2. Thereafter, Ashokan.C.K., Physical Education Teacher, retired from service on 31.3.2007. The petitioner was appointed as Physical Education Teacher on 2.6.2008. The proposal for approval of this appointment was also rejected by the Educational Officer, as per Ext.P7 order dated 15.10.2008, on several grounds including the ground that a protected teacher was not appointed, the school of the W.P.(C) NO.16515 OF 2010 L :: 2 :: fifth respondent being a newly opened school. Ext.P7 order was challenged in Ext.P8 appeal before the Deputy Director of Education, who passed Ext.P9 order dated 19.2.2009, confirming the order passed by the Educational Officer. The petitioner filed Ext.P10 Revision before the Government, which was rejected as per Ext.P11 order dated 7.11.2009. In Ext.P11 order, the Government took the view that the Manager should have appointed a protected teacher when a vacancy arose. It is also stated that at that time several protected teachers were available in the District. The further statement in Ext.P11 is that the petitioner was not a Rule 51A claimant and, therefore, he could not claim appointment in preference to a protected teacher. 3. The learned counsel for the petitioner submitted that Ext.P4 Revision is pending. If it is found that no protected teacher was available during that period, the appointment of the petitioner for the period from 5.6.2006 to 31.3.2007 could be approved. If that appointment is approved, the petitioner becomes a claimant under Rule 51A of Chapter XIV A of the Kerala Education Rules and, therefore, notwithstanding the availability of protected teachers, his W.P.(C) NO.16515 OF 2010 L :: 3 :: appointment on 2.6.2008 could be approved. The petitioner has also pointed out that the Manager expressed his willingness, as per Ext.P13 letter dated 25.5.2010, to appoint a protected teacher and as per Ext.P14 order dated 17.7.2010 passed by the Deputy Director of Education, Kozhikode, a protected teacher was deployed in the school managed by the fifth respondent. The counsel for the petitioner pointed out that subsequent events also can be taken note of and the appointment of the petitioner can be approved either from the date of appointment or from the date of deployment of a protected teacher, depending upon the facts and circumstances of the case. According to the petitioner, his appointment for the period from 5.6.2006 to 31.3.2007 is liable to be approved and if so, there was no impediment in approving his appointment on 2.6.2008 as well. These are all matters for consideration by the Government. If Ext.P4 is pending, all these questions can be considered while disposing of Ext.P4 Revision. If it is found that Ext.P4 Revision is not pending, the petitioner can be permitted to make a detailed representation to the Government pointing out all the above facts and making necessary prayers. If such a request is filed or if Ext.P4 Revision is pending, then the Government will consider all the W.P.(C) NO.16515 OF 2010 L :: 4 :: relevant aspects notwithstanding Ext.P11 order dated 7.11.2009. After considering the matters, a final decision shall be taken by the Government within a period of six months. The petitioner shall produce a copy of the Writ Petition, copy of I.A.No.13951 of 2010 and certified copy of the judgment before the first respondent. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/