IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 29151 of 2009(L) -------------------------- PETITIONER(S): --------------- SALEENA KAKKATTUCHALI, PUTHUVEETTILKANDAY HOUSE, OZHUKUR P.O., MALAPPURAM DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA REP.BY SECRETARY TO GENERAL EDUCATION DEPARTMENT TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, TIRUR. 4. THE ASSISTANT EDUCATIONAL OFFICER, VENGARA. 5. THE MANAGER, MISM UP SCHOOL, PENGADKANDILPARAMBA, KANNAMANGALAM WEST P.O., VENGARA, MALAPPURAM DISTRICT. ADV. SRI.V.A.MUHAMMED FOR R5 SRI.K.E.HAMZA FOR R5 GOVERNMENT PLEADER FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29151/2009 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE APPOINTMENT ORDER AND APPROVAL GRANTED TO T.K.MUJEEB RAHMAN. EXT.P2: COPY OF THE APPOINTMENT ORDER DATED 28.7.2003. EXT.P3: COPY OF THE ORDER DATED 5.1.2004 OF THE 4TH RESPONDENT. EXT.P4: COPY OF THE ORDER DATED 22.6.2004 OF THE THIRD RESPONDENT. EXT.P5: COPY OF THE ORDER DATED 12.1.2005 OF THE SECOND RESPONDENT. EXT.P6: COPY OF THE REPLY RECEIVED FROM DEPUTY DIRECTOR OF EDUCATION DATED 5.10.09. EXT.P7: COPY OF THE G.O.(P) NO.46/2006/G.EDN. DATED 1.2.2006. EXT.P8: COPY OF THE ORDER DATED 21.4.05 OF THE FOURTH RESPONDENT. EXT.P9: COPY OF THE REVISION DATED 24.7.06 BEFORE THE FIRST RESPONDENT. EXT.P10: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 13.12.2006. EXT.P11: COPY OF THE MERCY PETITION DATED 27.1.2007. RESPONDENT'S EXHIBITS : EXT.R5(a) : COPY OF THE ORDER NO.B3/23234/2006(1) OF THE DEPUTY DIRECTOR OF EDN. EXT.R5(b) : COPY OF THE JOINING CERTIFICATE. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.29151 of 2009 --------------------------------------------- Dated this the 4th day of June, 2010 JUDGMENT The petitioner is aggrieved by the denial of approval of her appointment as FT Arabic (UPS) teacher for the period from 28.7.2003 to 4.11.2007 in the school of the fifth respondent. 2. One K.V.Subaida was working as FT Arabic (UPS) in MISM UP school, Pengadkundilparamba, Kannamangalam West P.O., Vengara, Malappuram District. Subaida died on 17.12.2001. The Manager of the school appointed Sri.T.K.Mujeeb Rahman from 8.6.2002 onwards in the vacancy caused due to the death of Subaida. The Assistant Educational Officer rejected the proposal for approval of appointment of Mujeeb Rahman on the ground that no protected teacher was appointed in the school in terms of G.O.(P)No.178/02/G.Edn. dated 28.6.2002. It is stated in the Writ Petition that the appeal and revision filed against that order were dismissed. However, the first respondent, on a revision filed by the Manager, directed approval of appointment WPC 29151/2009 2 of Mujeeb Rahman for the period from 8.6.2002 to 5.11.2002. It is stated that Mujeeb Rahman left the school after applying for leave without allowance for going abroad. Since the approval of appointment of Mujeeb Rahman was sanctioned up to 5.11.2002 and since he ceased to be a teacher, the Manager appointed Faizal Mon C.H. in the vacancy of Mujeeb Rahman. Later, a regular vacancy of UPSA arose in the school and the Manager appointed Faizal Mon as UPSA. Consequently, the vacancy of FT Arabic Teacher arose in the school. The Manager appointed the petitioner as per Ext.P2 appointment order dated 28.7.2003 for the period from 28.7.2003 to 4.11.2007. It is stated that the period was so restricted in view of the fact that a leave application was submitted by Mujeeb Rahman for a period of five years. 3. The Assistant Educational Officer, Vengara rejected proposal for approval of appointment of the petitioner as per Ext.P3 dated 5.1.2004 on two grounds, namely, (1) the appointment of Mujeeb Rahman was not approved and therefore, there is no established vacancy (2) As per G.O.(P) No.178/02/G. WPC 29151/2009 3 Edn. dated 28.6.2002, the Manager was bound to appoint protected teachers. Ext.P3 was taken up in appeal before the District Educational Officer who confirmed the order of Assistant Educational Officer as per Ext.P4 order dated 22.6.2004. The revision filed by the Manager before the Director of Public Instructions was dismissed as per Ext.P5 order dated 12.1.2005. The petitioner is mainly aggrieved by Exts.P3 to P5 orders. 4. The learned counsel for the petitioner submitted that subsequent to Exts.P3 to P5 orders, the appointment of Mujeeb Rahman was approved and therefore, one of the reasons stated for rejection of approval of appointment of the petitioner has vanished. It is also submitted that G.O.(P) No.178/02/G.Edn. was relaxed as per G.O.(P) No.46/2006/G.Edn. dated 1.2.2006 and benefit of the same was availed by more than 400 teachers. In view of G.O.(P) No.46/2006/G.Edn., the Manager submitted a revised proposal before the Assistant Educational Officer for approval of appointment of the petitioner. The Assistant Educational Officer rejected that proposal as per Ext.P8 order dated 21.4.2005. A revision was filed against that order before WPC 29151/2009 4 the Government. However, the revision petition was forwarded to the Director of Public Instructions who disposed of the same as per Ext.P10 order dated 13.12.2006 confirming the order passed by the Assistant Educational Officer. In Ext.P10 order, the following reasons are stated by the Director of Public Instructions : “(i) The school is a newly opened one. Hence, the vacancy should have been filled with a protected teacher, as per G.O.(P) No.178/02/G.Edn. dated 28.6.2002. (ii) The LWA for 6.11.2002 to 5.11.2007, in respect of Sri.Mujeeb Rehman.T.K., F.T.Arabic Teacher, stand yet to be sanctioned by the Government.” 5. Challenging Ext.P10 order, the petitioner has filed Ext.P11 representation before the Government. It is stated that Ext.P11 was not disposed of. 6. The learned counsel for the petitioner submitted that Ext.P6 communication dated 5.10.2009 issued by the Deputy WPC 29151/2009 5 Director of Education, Malappuram on an application submitted by the petitioner under the Right to Information Act, shows the list of protected Full Time Arabic Teachers of U.P. school to be deployed for the year 2003-2004. It is submitted that all those protected teachers belong to schools outside Vengara Sub District. The counsel also relied on Rule 6(viii) of Chapter V of the Kerala Education Rules and submitted that the Manager was bound only to appoint protected teachers available in the Sub District concerned. Reliance was also placed on the decision reported in Moosakutty vs. D.E.O., Wandoor (2009(3)KLT 863) wherein it was held that a Government Order which runs contrary to Rule 6(viii) of Chapter V of Kerala Education Rules would not stand since an executive order cannot go against the express statutory provisions. In the light of the dictum laid down in Moosakutty vs. D.E.O.,Wandoor, Exts.P3 to P5 orders and also Exts.P8 and P10 orders are liable to be quashed. 7. Accordingly, I quash Exts.P3 to P5 and Exts.P8 and P10 orders. The Assistant Educational Officer shall consider the matter afresh in the light of the admitted facts of the case and WPC 29151/2009 6 also the information furnished in Ext.P6 dated 5.10.2009. In the light of the principles laid down in Moosakutty vs. D.E.O.Wandoor, the Assistant Educational Officer shall dispose of the case within a period of two months from the date of receipt of a copy of this judgment. All the contentions of the parties are left open. The Writ Petition is disposed of as above. It is made clear that in spite of Ext.P6 communication issued by the Deputy Director of Education, Malappuram, the Assistant Educational Officer would be entitled to verify the list of protected teachers available in the Sub District for the relevant period for the purpose of a complete and proper adjudication of the disputes involved in the case. K.T.SANKARAN, JUDGE csl