IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 WP(C).No. 3991 of 2010(Y) ------------------------------------ PETITIONER: ------------------- MENCY ELDHO,AGED 29 YEARS,S/O.ELDHO, LOWER PRIMARY SCHOOL ASSISTANT,SREEDEVI.L.P.SCHOOL, MANKADAVU,POST KOOMPANPARA,ADIMALY-685 561, IDUKKI DISTRICT. BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT,TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCTION, IDUKKI AT THODUPUZHA. 4. THE ASSISTANT EDUCATIONAL OFFICER, ADIMALY,IDUKKI DISTRICT. 5. THE MANAGER,SREEDEVI.L.P.SCHOOL, MANKADAVU,POST KOOMPANPARA,ADIMALY-685 561, IDUKKI DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. NISHA BOSE, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3991/2010-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. 9969/H3/07/G. EDN. OF THE GOVERNMENT DTD. 03/03/2008. EXT.P.2: COPY OF THE ORDER OF APPOINTMENT DTD. 15/07/2005. EXT.P.3: COPY OF THE CERTIFICATE REGARDING PROTECTED TEACHER ISSUED BY THE A.E.O. DTD. 24/12/2007. EXT.P.4: COPY OF THE CIRCULAR NO.74101/J2/2004/G. EDN. OF THE GOVERNMENT DTD. 24/01/2005. EXT.P.5: COPY OF THE LETTER NO. 55933/H3/08/G. EDN. OF THE GOVERNMENT DTD. 11/11/2008. EXT.P.6: COPY OF THE G.O.(RT).NO.3587/08/G. EDN. OF THE GOVERNMENT DTD.05/08/2008. EXT.P.7: COPY OF THE ORDER NO. F3/75090/08/K. DIS. OF THE R.2. DTD. 24/01/2009. EXT.P.8: COPY OF THE ORDER NO.F3/67649/2008/K. DIS. OF THE R.2. DTD. 11/02/2009. EXT.P.9: COPY OF THE DECISION REPORTED IN K.L.T. 1993(2) K.L.T. S.N. CASE NO. 28 DTD. 02/08/1993. EXT.P.10: COPY OF THE LETTER NO.A-5103/10/L. DIS. OF THE ASSISTANT EDUCATIONAL OFFICER DTD. 14/10/2010. EXT.P.11: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO.7847/1983-A DTD. 07/11/1986. EXT.P.12: COPY OF THE -DO- IN W.A. NO.770/1987 DTD. 24/10/1987. EXT.P.13: COPY OF THE -DO- IN W.A. NO. 183/2010 DTD. 21/07/2010. EXT.P.14: COPY OF THE -DO- IN W.P.(C).NO.29151/2009-L DTD. 04/06/2010. EXT.P.15: COPY OF THE JUDGMENT OF THE HON'BLE APEX COURT IN S.L.P. NO. 36558/2010 DTD. 10/01/2011. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.3991/2010-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20th day of July, 2011 J U D G M E N T The short question is with regard to the petitioner's claim for approval of appointment from 04/07/2005 in terms of the appointment order. The appointment was as Lower Primary School Assistant from the said date, in a Lower Primary Schoo1, against a permanent vacancy. The approval of appointment was kept pending for a long time and finally, the Government by Ext.P1 order directed to approve the appointment from 01/02/2006 in the light of G.O.(P).No.46/06/G.Edn., dated 01/02/2006. Accordingly, the appointment was approved as per Ext.P2 from 01/02/2006. 2. The petitioner thereafter, filed another representation seeking for modification of the date of approval in the light of the fact that the condition regarding appointment of protected teacher has been complied with by the Manager of the schoo1 and also the fact that as on the date of appointment, no protected teachers were available in the concerned Educational Sub District. With regard to the appointment of protected teachers in the school, it is averred in the writ petition that one protected teacher Shri K.N. Bhaskaran who was appointed initially, retired from W.P.(C). No.3991/2010 -:2:- service on 17/09/1999 and in that vacancy one T.D.Baby was appointed and he was transferred to another schoo1 as per the order of the Deputy Director of Education on 30/09/1994. The Manager requested the Deputy Director of Education to appoint a protected teacher by letter dated 25/05/2005 but no other teacher was appointed till 14/05/2007. Then one Shri Jose Paul a protected teacher was appointed as evident from Ext.P3 letter. Thereafter, he was transferred to another schoo1 in the academic year 2008-09 and it is pointed out that the Manager has kept the said post vacant for accommodating a protected teacher. 3. It is submitted by the learned counsel for the petitioner that even in respect of a person appointed in terms of the appointment granted under G.O.(P).No.46/2006/G.Edn., dated 01/02/2006, the Government by Ext.P6 has allowed approval of appointment with effect from the date of appointment itself in the case of one Shri Muhammed Ashraf as L.P.S.A in A.S.M.L.P.S., Purakkad. Exts.P7 and P8 are the orders passed by the Additional Director of Public Instruction in respect of similarly placed teachers. A reading of the said orders will also show that after considering W.P.(C). No.3991/2010 -:3:- the fact that protected teachers were there in the schoo1 approval has been granted from the earlier dates. 4. With regard to the availability of any protected teacher in the Educational Sub District, it is clear from the averments in para.11 of the counter affidavit filed by the third respondent that no protected teacher under the category of L.P.S.A was available as on 04/07/2005 in the Adimali Educational Sub District. But in Arakulam Educational Sub District one protected teacher was available. The schoo1 herein is within Adimaly Sub District. The extent of the obligation of the Manager to absorb a protected teacher under Rule 6(viii) of Chapter V Kerala Education Rules has been laid down by this Court in Moosakutty v. D.E.O, Wandoor [2009 (3) KLT 863] wherein it was held that the obligation is only to appoint a protected teacher available in the Sub District concerned. The writ appeal filed against the said Judgment stands dismissed as per Ext.P13 Judgment and the Special Leave Petition filed against the same has also been dismissed. Learned counsel for the petitioner further invited my attention to Ext.P14 Judgment wherein the Judgment in Moosakutty's case [2009 (3) KLT 863] was followed. W.P.(C). No.3991/2010 -:4:- 5. The learned Government Pleader submitted that the benefit granted under Ext.P1 is based under G.O.(P).No.46/2006/G.Edn., dated 01/02/2006, as a one time measure and, therefore, the petitioner is not entitled for approval from any date prior to 01/02/2006. 6. But, going by the terms of the said Government Order, what is insisted by the Government is appointment of a protected teacher. Herein, even earlier to the said Government Order, the Manager had fulfilled the obligation. As on the date of appointment of the petitioner, no protected teacher was available also. Therefore, at any rate the provisions of G.O.(P). No.178/02/G.Edn., dated 28/06/2002 which stands modified by later Government Orders also could not have been implemented even at the time of appointment of the petitioner. 7. In the light of the same, it can be seen that the Manager cannot be faulted for not appointing a protected teacher. Evidently, the Manager had appointed a protected teacher prior to the appointment of the petitioner and one vacancy has been set apart for appointment of a protected teacher. In that view of the matter, the denial of appointment of the petitioner from 04/07/2005 cannot be justified and hence, the view taken in Ext.P5 cannot W.P.(C). No.3991/2010 -:5:- be supported. Therefore, the same is quashed. It is declared that the petitioner is entitled for approval from 04/07/2005. There will be a direction to the respondents to approve the appointment of the petitioner from 04/07/2005 and she will be entitled for grant of monetary benefits also. The writ petition is accordingly allowed and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this Judgment. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms