IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 24919 of 2008(N) -------------------------------- PETITIONER: -------------- C.V.RAMANUNNI, H.S.A (MALAYALAM), PULIYAPARAMBA HIGHER SECONDARY SCHOOL, KODUNTHIRAPPULLY, PALAKKAD-678004. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 5. MANAGER, PULIYAPARAMBA HIGHER SECONDARY SCHOOL, KODUNTHIRAPPULLY, PALAKKAD-678004. BY ADV. SRI.C.X.ANTONY BENEDICT FOR R5. SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.24919/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O. DTD. 16.11.89 ISSUED BY GOVT. EXT. P2 : COPY OF G.O. DTD. 24.9.90 ISSUED BY GOVT. EXT. P3 : COPY OF G.O. DTD. 5.8.91 ISSUED BY GOVT. EXT. P4 : COPY OF G.O. 1.9.98 ISSUED BY GOVT. EXT. P5 : COPY OF G.O. DTD. 1.2.06 ISSUED BY GOVT. EXT. P6 : COPY OF APPOINTMENT ORDER DTD. 10.9.02 OF PETITIONER. EXT. P7 : COPY OF STAFF FIXATION ORDER DTD. 8.8.02 ISSUED BY R4. EXT. P8 : COPY OF ORDER DTD. 26.7.05 ISSUED BY R4. EXT. P9 : COPY OF G.O. DTD. 24.5.05 ISSUED BY GOVT. EXT. P10 : COPY OF ORDER DTD. 27.1.03 ISSUED BY R4. EXT. P11 : COPY OF ORDER DTD.21.11.05 ISSUED BY R3. EXT. P12 : COPY OF ORDER DTD. 28.9.04 ISSUED BY R2. EXT. P13 : COPY OF REVISION PETITION DTD. 26.10.06 FILED BY PETITIONER TO GOVT. EXT. P14 : COPY OF UNDERTAKING DTD. 30.11.06 SUBMITTED BY MANAGER BEFORE GOVT. EXT. P15 : COPY OF UNDERTAKING DTD. 23.5.07 SUBMITTED BY MANAGER BEFORE GOVT. EXT. P16 : COPY OF G.O. DTD. 24.5.08 ISSUED BY GOVT. EXT. P17 : COPY OF COMMUNICATION DTD. 29.4.08 SENT BY R3 TO R2. EXT. P18 : COPY OF APPOINTMENT ORDER DTD.18.10.02 OF SINDHU M.P. WP(C).No.24919/2008 RESPONDENT'S EXHIBITS: EXT. R2(a) : COPY OF LIST OF PROTECTED TEACHERS AS ON 10.09.02. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.24919 OF 2008 --------------------------------------- Dated this the 19th day of November, 2011. J U D G M E N T The issue raised in this writ petition is covered in favour of the petitioner by the judgment of this Court in Nadeera vs. State of Kerala (2011 (3) KLT 790). 2. This is a case where the appointment of the petitioner was objected for non appointment of a protected teacher in the school. The facts necessary for the disposal of the writ petition are the following: 3. The petitioner was appointed in the academic year 2001- 2002 by Ext.P6 order dated 10.09.2002. Initially one Smt.Vani.V was appointed in the school but she left the school after some time. Hence there was a sanctioned post to which the petitioner was appointed. The successive orders of the Department and the Government reiterate the stand that a protected hand had to be appointed in the school. Ext.P16 is the order passed by the Government wherein the view taken is that as per W.P.(C) No.24919/2008 2 G.O.(P)No.46/06/G.Edn dated 01.02.2006, the Government have decided to approve the appointments made in the newly opened/upgraded schools provided that at least one protected teacher should be appointed in the school by the Manager. 4. Learned counsel for the petitioner invited my attention to Ext.P17 communication issued by the Deputy Director of Education, Palakkad to the Director of Public Instruction stating that no names of teachers had been reported for deployment during 2001-02 and 2002-03 from the District Educational Officers of Palakkad and Ottappalam in the cadre of H.S.A (Malayalam). 5. In the counter affidavit filed by the respondents, reliance is placed on Ext.R2(a) which shows that two teachers namely, Smt.K.N. Nirmala Devi, H.S.A (Malayalam) and Smt.D.Savithri Amma, H.S.A (Malayalam) were deployed due to the closure of the schools. The said teachers were working in the Government High Schools. It is therefore pleaded in the counter affidavit that the Manager had to comply with the obligation to appoint a protected hand under G.O.(P)No.178/2002/G.Edn dated W.P.(C) No.24919/2008 3 28.06.2002. 6. Learned counsel for the petitioner Sri.Elvin Peter submitted that Ext.P17 will show that during the relevant academic year, protected H.S.A (Malayalam) was not available in the Palakkad District. It is also pointed out that the teachers who have been retained during 2001-02 and 2002-03 in some posts of H.S.A (Malayalam) were accommodated in the said school as per G.O.(MS) No.317/01/G.Edn dated 14.10.2001 as evident from Ext.P17 itself. Therefore, it cannot be said that they were available for deployment to an aided school. 7. In the light of various principles stated by this Court in certain recent decisions including the decision in Nadeera vs. State of Kerala (2011 (3) KLT 790), it can be seen that the Manager cannot be found fault with for not appointing a protected hand in the absence of communication of a list of protected teachers by the Department. In many cases, protected hands may not be available or even if they are available, they will be continuing as accommodated in Government schools and unless there is a specific direction by the Department deploying W.P.(C) No.24919/2008 4 the protected teacher, the Manager cannot have a role in the matter. 8. In fact, various Government Orders were considered in Nadeera's case (supra). Earlier decisions of this Court, taking the view that the obligation of the Manager under Rule 6(viii) of Chapter V of Kerala Education Rules arise only if a list of protected teachers was communicated, have been discussed in paragraphs 14 and 15 of the judgment and finally, in paragraph 20, it was held thus: “It is in that context that the procedure for communicating the list of protected teachers forwarded under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding W.P.(C) No.24919/2008 5 appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are entitled to succeed in the Writ Petition”. 9. Learned Government Pleader submitted that Ext.R2(a) shows that two teachers were available in the cadre of H.S.A (Malayalam) and they became excess due to the closure of the respective schools and therefore, they had a right under Rule 5A of Chapter XIV-A K.E.R. Firstly, those two teachers have been accommodated in Government Schools as per G.O.(MS) No.317/2001. Therefore, they were not remaining without accommodation. Secondly, even assuming that they had a right to be deployed under Rule 5A, unless and until their services are placed with the Managers of the aided schools by proper orders, it cannot be said that the Manager herein has failed to act in terms of the provisions of the Statute. Of course, the Manager has an obligation under Rule 6(viii) of Chapter V K.E.R to W.P.(C) No.24919/2008 6 accommodate a protected hand and his willingness has already been expressed by Ext.P14, in the new post of Needle work teacher sanctioned in the school. 10. Evidently, in the light of the principles stated by this Court in various decisions noted in Nadeera's case (supra) as well as the stipulations made in various circulars that the educational officers will have to communicate a list of protected teachers, it cannot be said that a person like the petitioner has to suffer for the said reason. 11. This is a case where sanctioned post was there and a qualified person was appointed. The only reason for non approval is non appointment of a protected hand by the Manager. The circumstances discussed above will fit in with the principles stated in Nadeera's case (supra). Therefore, Exts.P10, P11, P12 and P16 are quashed. There will be a direction to the District Educational Officer to grant approval of appointment of the petitioner pursuant to Ext.P6 order of appointment and appropriate orders will be passed within a period of two months from the date of receipt of a copy W.P.(C) No.24919/2008 7 of this judgment and consequential monetary benefits will be sanctioned to the petitioner. The Department will be free to direct the Manager to appoint a protected hand in the school if the Manager has not appointed any protected hand so far. This writ petition is allowed. T.R. RAMACHANDRAN NAIR JUDGE smp