IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 21842 of 2008(A) --------------------------------------- PETITIONER: ------------------- SHANTHINI.B.,ASSISTANT TEACHER, N.T.U.P.SCHOOL, NURNI, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH (SR.), SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU. RESPONDENTS: ------------------------ 1. THE ADDITIONAL DIRECTOR (ACADEMIC), DIRECTOR OF PUBLIC INSTRUCTION OFFICE, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 3. THE ASSISTANT EDUCATIONAL OFFICER, PALAKKAD. 4. THE MANAGER ,N.T.U.P. SCHOOL, NURNI,PALAKKAD. 5. N.SIVARAMAKRISHNAN, SCOUT MSTER (UNDER PROTECTION) N.T.U.P.SCHOL, NURNI, PALAKKAD. 6. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVT. PLEADER SMT. T.B. REMANI FOR R1 TO R3 & R6, ADV. SRI.U.BALAGANGADHARAN FOR R5. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.21842/2008 ----------------------------------------------------------- Dated this the 7th day of October, 2008 JUDGMENT Petitioner claims to be the senior most Assistant Teacher in NTUP School, Nurni. Her claim in this writ petition is for appointment as Headmistress. A vacancy of Headmaster arose on 1.4.2007 and thereupon the petitioner staked her claim by Ext.P1. However, the Manager appointed the 5th respondent. As per Ext.P2 staff fixation order for the year 2007-08, the 5th respondent is a protected teacher. For that reason, holding that a protected teacher has no claim for promotion, the AEO rejected the approval by Ext.P3. 2. Again the petitioner staked her claim for promotion by Ext.P4 and that was directed to be considered by Ext.P5 judgment of this court. Though the claim of the petitioner WP(c).No.21842/2008 2 was considered by the AEO by Ext.P6 order, AEO stated that he is not in a position to take an appropriate decision in the matter, in view of an appeal filed by the Manager against Ext.P3 order of the AEO declining approval of the promotion of the 5th respondent. Petitioner submits that by Ext.P7 order passed by the first respondent, the appeal against Ext.P3 has been rejected. In view of this, petitioner submits that she is the rightful claimant to be appointed as Headmistress to the vacancy in the school. On this basis, a direction to appoint her is sought for. 3. The 5th respondent on the other hand submits that, the Manager has filed Ext.R5(7) appeal against Ext.P7 before the 6th respondent and that therefore at this stage, the claim of the petitioner is premature. However, the fact remains that on merits, the issue is concluded in favour of the petitioner. It has been held by the learned single Judge of this court in the decision reported in Manager, Marsleeha U.P School V. State of Kerala(1990(1)KLT 626), that a protected teacher, WP(c).No.21842/2008 3 cannot put forward a claim to the post of Headmaster. The relevant portion in para 8 of the judgment reads as follows; “The appointment of Headmasters in upper primary schools is covered by Rule 45 and 45A of Chapter XIV-A KER. It states that the post of Headmaster should be filled up from among qualified teachers of the staff of the school. A protected teacher, being not a member of the staff of the school, is not entitled to be considered for the post. Being a protected teacher deployed to a Government School, the 5th respondent cannot put forward any claim to the post of Headmaster in his parent school. The contrary view taken by the Deputy Director is against the statutory provisions contained in the Kerala Education Rules. So, the direction given to the Manager to appoint the 5th respondent as Headmaster of the school cannot be sustained.” WP(c).No.21842/2008 4 4. The correctness of this judgment has been expressly affirmed by a Division Bench of this court in Leela Bai V. Anandavally(2002(3) KLT 942), where a request for its reconsideration was rejected, as is seen from para 7 thereof. Yet another Division Bench judgment in Prasad V. Philipose Mar Dilshus U.P. School(2005(3) KLT 487) has also followed the judgment in 1990(1)KLT 626, vide para 4 there of. If that be so, the protected teacher cannot claim for promotion. 5. The fact that the 5th respondent is retained in the School giving him the benefit of the Government Order dated 4.12.2002 does not alter this position. If that be so, Ext.P3 order passed by the AEO and Ext.P7 order passed by the first respondent are consistent with the law laid down by this court in the aforesaid judgments. The fact that Ext.R5(7) appeal is pending before the 6th respondent is immaterial. It is impermissible for the 6th respondent to take a view different from Ext.P3 or P7. In view of the above, the helplessness expressed by the AEO in Ext.P6, it cannot be accepted. For WP(c).No.21842/2008 5 that reason, Ext.P6 is quashed. 6. The AEO shall reconsider the claim put forward in Ext.P4 and orders shall be passed as expeditiously as possible and at any rate within 4 weeks from the date of receipt of a copy of the judgment. Writ Petition is allowed as above. ANTONY DOMINIC JUDGE vi. WP(c).No.21842/2008 6