IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 WP(C).No. 32439 of 2009(Y) -------------------------- PETITIONER(S): --------------- BABU V. GEORGE, MANAKKATTU HOUSE, PONKUNNAM P.O., EDATHUMPARAMBU (VIA), KOTTAYAM DIST. BY ADV. SRI.S.JAYAKRISHNAN SRI.V.PURUSHOTHAMA PANICKER RESPONDENT(S): --------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DETP. GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY, KOTTAYAM DIST. 4. THE MANAGER, VAVER MEMORIAL HIGH SCHOOL, ERUMELY, KOTTAYAM DIST. 5. SMT. NIRMALA MATHEW, HIGH SCHOOL ASSISTANT (ENGLISH), KOTTTAYAM DIST. ADV. SRI.E.S.ASHRAF FOR R5 SRI.P.A.MOHAMMED SHAH FOR R4 SRI.P.H.SHAJAHAN FOR R4 GOVERNMENT PLEADER SMT NISHA BOSE FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 32439/2009 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ADVERTISEMENT IN MALAYALA MANORAMA DAILY DT.29/04/2007 OF THE FOURTH RESPONDENT EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT EXT.P3 TRUE COPY OF THE ORDER DT.29/5/2008 NO.B3/7425/06/K.DIS ISSUED BY THE 3RD RESPONDENT EXT.P4 TRUE COPY OF THE ORDER NO.GO P 46/2006/G.EDN. DT.1/2/2006 EXT.P5 TRUE COPY OF THE LIST OF TEACHERS APPOINTED DURING THE PERIOD ISSUED BY THE HEADMASTER VAVAR MEMORIAL HIGH SCHOOL, ERUMELY EXT.P6 TRUE COPY OF THE REPLY ISSUED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXT.P7 TRUE COPY OF LETTER ISSUED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT EXT.P8 TRUE COPY OF PETITION FILED BY 4TH RESPONDENT BEFORE 1ST RESPONDENT EXT.P9 TRUE COPY OF THE PETITION ISSUED BY THE PETITIONER BEFORE 1ST RESPONDENT EXT.P10 TRUE COPY OF ORDER NO.GO RT NO.3501/2009/G.EDN. DT.17/08/2009 ISSUED BY THE 1ST RESPONDENT. EXT.P11 TRUE COPY OF THE INFORMATION DT.20/03/2009 ISSUED BY THE PUBLIC INFORMATION OFFICER, KOTTAYAM. EXT.P12 TRUE COPY OF THE CIRCULAR NO.7/J2/2005/G.EDN. DT/4/4/2005 EXT.P13 TRUE COPY OF THE INFORMATION ISSUED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXT.P14 TRUE COPY OF THE DIRECTION ISSUED BY THE 3RD RESPONDENT EXT.P15 TRUE COPY OF THE LETTER ISSUED BY THE MANAGER VMHS, ERUMELY BEFORE THE 3RD RESPONDENT EXT.P16 TRUE COPY OF THE NOTE FILE OF GOVT. FILE NO.68494/E3/08/G.EDN., ISSUED BY 1ST RESPONDENT. RESPONDENTS' EXTS: EXT.PR4(A) TRUE COPY OF THE CIRCULAR DT.4/4/2005 \\True copy// P.A to Judge T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.32439/2009-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22nd day of December, 2011 J U D G M E N T The petitioner's grievance is regarding the non approval of appointment as High School Assistant (Malayalam). The various orders of the statutory authorities and the Government are under challenge in this writ petition. 2. The necessary facts for the disposal of the writ petition are the following:- Pursuant to the advertisement in the Malayala Manorama daily, the petitioner applied for the post of High School Assistant (Malayalam) in the school. He was appointed with effect from 01/06/2007 against a retirement vacancy of Smt.Mary Abraham who retired on 31/03/2007. Ext.P2 is the copy of the appointment order. Initially, by Ext.P3, the District Educational Officer rejected the proposal for approval of appointment of the petitioner on the ground that the said post is kept vacant for appointing a protected hand by the Manager. W.P.(C). No.32439/2009 -:2:- 3. It is the case of the petitioner that in terms of Ext.P4 Government Order, the Manager had an obligation to appoint a protected hand but no appointment was made, mainly due to non availability of the protected hand and non communication of the details by the Department. It is pointed out that in the academic year 2006-07, the fourth respondent made four appointments in various posts including one H.S.A (English) and in 2007-08 six appointments were made. Ext.P5 is the copy of the list of teachers and none of these vacancies were filled up by a protected hand. 4. It appears that the Manager had filed Ext.P8 revision petition before the Government against the rejection of approval of appointment of the petitioner. It is also stated that the Manager has also requested the District Educational Officer to change the post that was kept vacant for appointing a protected hand from H.S.A (Malayalam) to Hindi (L.G.), as there was an open vacancy in Hindi (L.G) in the school. 5. In the counter affidavit filed by the second respondent, the contention of the petitioner, that no W.P.(C). No.32439/2009 -:3:- protected H.S.A (Malayalam) was available at the time of appointment of the petitioner, is not accepted. It is averred that in the list of protected teachers prepared by the second respondent for the year 2007-08 there was only one H.S.A (Malayalam) and he was on leave without allowance from 01/11/2005 to 31/10/2010. Various details regarding the approval of appointments made by the Manager have also been stated in the counter affidavit. 6. In the counter affidavit filed by the Manager, it is mentioned that during the period 2006-07 and 2007-08 only two fresh appointments were made by the Manager, one of the fifth respondent in the post of H.S.A (English) and the other, of the petitioner as H.S.A (Malayalam). The Manager has denied the allegation that he did not take steps for appointing protected hands. It is also stated that Exts.P7 and P8 will show that the Manager had taken steps to get approved the appointment of the petitioner when a post became vacant in Hindi (LG) and requested the District Educational Officer to change the protected post from W.P.(C). No.32439/2009 -:4:- H.S.A (Malayalam) to Hindi (LG). But the candidate who was promoted from Hindi (LG) post to H.S.A. (Hindi) was reverted back since her promotion was not approved due to lack of qualification. 7. Therefore, the facts and scenario of the case show that as on the date of appointment of the petitioner, only one protected H.S.A (Malayalam) was available on the rolls of the Deputy Director of Education. But the said person was on long leave for a period of five years from 01/11/2005 to 31/10/2010. Therefore, it is not a case where any protected hand was available for deployment to the school. 8. The learned counsel for the petitioner submitted that the reason stated to reject the approval of appointment of the petitioner, that the vacancy should be filled up by a protected hand, cannot be accepted. 9. I find force in the above submission. The Manager can appoint a protected hand only if a protected hand was available. Herein, there was an impossibility of appointing a protected hand as no W.P.(C). No.32439/2009 -:5:- H.S.A (Malayalam) was readily available. In that view of the matter, the non approval of appointment of the petitioner cannot be sustained. 10. Learned Government Pleader submitted that the protected hand in the post of Hindi (LG) is only in the primary section and the Manager's obligation to appoint a protected hand is in the upgraded section, namely, in the High School. 11. Evidently, various appointments made by the Manager in respect of different teachers have been approved by the Department without insisting for the appointment of protected hands since no protected hands were available in those subjects also. Therefore, the approval of appointment of other teachers will also support the case of the petitioner that due to non availability of protected H.S.A (Malayalam), the petitioner's appointment need be approved. It is not a case where the Manager is trying to disown his obligation to appoint a protected hand. In fact, even on the rejection of the approval of appointment of the petitioner, the Manager had taken the matter before the W.P.(C). No.32439/2009 -:6:- Government explaining that a protected H.S.A (Malayalam) is not available and the petitioner's appointment should be approved. In that view of the matter, the rejection of approval of appointment of the petitioner cannot be sustained and Exts.P3 and P10 are quashed. 12. The petitioner has continued only for two academic years. He was terminated on 31/03/2009. It is declared that the petitioner is entitled for approval of appointment made pursuant to the advertisement Ext.P1, namely, from 01/06/2007 to 31/03/2009 and the approval will be granted by the District Educational Officer and an appropriate order will be passed within two months from the date of receipt of a copy of this Judgment. The Manager will earmark a future vacancy for appointing a protected hand to the High School Section, to comply with the provisions of Ext.P4. The Manager will resubmit the papers regarding the appointment of the petitioner for enabling the District Educational Officer to pass appropriate orders. On approval of appointment, the petitioner will be W.P.(C). No.32439/2009 -:7:- sanctioned due monetary benefits also. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms