IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 6220 of 2008(M) ------------------------------- PETITIONER: -------------- P.K.SAREENA, AGED 28 YEARS, W/O.RASHEED, LOWER PRIMARY SCHOOL ASSISTANT, A.M.L.P. SCHOOL, PALAKUTTY, P.O.KODUVALLY, KOZHIKODE DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT. 5. THE MANAGER, A.M.L.P.SCHOOL, PALAKUTTY, P.O.KODUVALLY, KOZHIKODE DISTRICT. BY ADVS. SRI.M.A.THOMAS KUTTY FOR R5 SMT.ASHA CHERIAN FOR R5 SMT. RANI DIOTHIMA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.6220/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.C/8375/04/L.DIS. OF R4 DTD.16.5.05. EXT. P2 : COPY OF ORDER No.L.DIS. B3-594/2005 OF R3 DTD.19.7.05 EXT. P3 : COPY OF ORDER No.G3/80676/05/D.DIS./DPI OF R2 DTD. 7.6.06. EXT. P4 : COPY OF G.O.(P) No46/2006/G.EDN. OF GOVT. DTD.1.2.06. EXT. P5 : COPY OF ORDER No.C/2283/07/L.DIS. OF R4. EXT.P6 : COPY OF G.O.(RT) No.3776/2006/G.EDN. OF GOVT. EXT. P7 : COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 15138/2004-B DTD. 18.8.04. EXT.P8 : COPY OF G.O.(RT) No.1285/07/G.EDN. OF GOVT. DTD. 21.3.07. EXT.P9 : COPY OF ORDER No.B/6926/07/L.DIS. OF R4 DTD. 11.1.08. EXT.P10 : COPY OF JUDGMENT OF THIS HON'BLE COURT IN O.P.5258/2003-A. DATED 10.11.06. EXT.P11 : COPY OF ORDER No.67290/L1/07/G.EDN. OF GOVT. DTD. 16.1.08. EXT.P12 : COPY OF G.O.(P) No.178/2002/G.EDN. OF GOVT. DTD.28.6.02. EXT.P13 : COPY OF JUDGMENT IN W.P.(C) 2563/2008-E OF THIS HON'BLE COURT DTD. 24.9.08. EXT.P14 : COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 8039/2008-F DTD. 1.6.09. EXT. P15 : COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 18986/2009-P DTD. 9.7.10. 5TH RESPONDENT'S EXHIBITS: EXT.R5(a) : COPY OF ORDER DTD.16.12.97 ISSUED BY R4 APPROVING APPOINTMENT OF SMT.BUSHRAMOL T.K. WP(C).No.6220/2008 EXT.R5(b) : COPY OF ORDER DTD.29.10.04 ISSUED BY R4 APPROVING APPOINTMENT OF SRI.SHAJIR.P. EXT.R5(C) : COPY OF AFFIDAVIT DTD. 26.6.06 OF R5. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.6220 OF 2008 --------------------------------------- Dated this the 27th day of May, 2011. J U D G M E N T The petitioner is seeking for a direction to approve her appointment as Lower Primary School Assistant in the school managed by the 5th respondent. The petitioner was appointed on 17.11.2004 in the vacancy of Smt.Bushamole who resigned to get employment in Government service. The approval was rejected as per Ext.P1 order which was challenged by the Manager in appeal before the District Educational Officer, which was also rejected as per Ext.P2. The appeal filed before the Director of Public Instruction was rejected by Ext.P3. The Manager thereafter approached the Government. The Government passed Ext.P4 order whereby including that of the petitioner, a direction was issued to approve the appointment of 402 teachers with effect from the date of the said order. Even though the Manager resubmitted the proposal again in the light of Ext.P4 order, the Assistant Educational Officer declined to W.P.(C) No.6220/2008 2 approve the appointment as per Ext.P5 order. 2. Learned counsel for the petitioner submitted that even going by Ext.P4 order passed by the Government, it can be seen that approval of the appointments of 402 teachers was directed relaxing the condition for appointing protected hands. The Government has directed the approval of appointment as per Ext.P4 and the petitioner is one of the beneficiaries. 3. In Ext.P6 order passed by the Government, it is clarified that the Educational Officers will include the names of protected teachers to be appointed by the Managers in the arising vacancies in the staff fixation order itself. Therefore, it is contended that the appointment of protected teacher can be in a future vacancy. 4. The 5th respondent Manager has filed a counter affidavit. Therein it is pointed out that a vacancy of LPSA arose in the school with effect from 02.06.2004 consequent on the retirement of Sri.Mohammed T. who was the Headmaster. One Sri.Shajir P. was appointed in the consequent vacancy after the promotion of Sri.K.Surendran, LPSA as Headmaster. The said appointment W.P.(C) No.6220/2008 3 was approved as per Ext.R5(b). The Manager has appointed one Smt.Mollykutty Thomas in the school under Rule 6(viii) of Chapter V, KER. After the issuance of Ext.P4, the Manager has given an undertaking, a copy of which has been produced as Ext.R5(c), agreeing to appoint one protected teacher in the school in the next arising vacancy. 5. Evidently, in Ext.P5 order, the only reason stated is that one protected teacher is not appointed in the school or a vacancy has not been set apart for appointing a protected teacher. Ext.P4 directs approval of appointment of the petitioner along with 401 teachers. In that view of the matter, the rejection of the proposal for approval cannot be supported. The Government has clearly directed in Ext.P4 to approve the appointment from 01.02.2006 evidently by relaxing the stipulation concerning the appointment of protected teachers. The Manager has already given Ext.R5(c) undertaking. In that view of the matter also, as the Manager is willing to appoint a protected hand, the Assistant Educational Officer could have directed that a protected teacher should be appointed. But that process need not delay the W.P.(C) No.6220/2008 4 approval of appointment of the petitioner in terms of Ext.P4. It was therefore not proper for the Assistant Educational Officer to reject the proposal for approval in spite of a binding order like Ext.P4 passed by the Government. It can be seen from Ext.P6 also that a protected hand can be appointed in the arising vacancy. Therefore, this writ petition is allowed. Exts.P5 and P11 are quashed. It is declared that the petitioner is entitled for grant of approval from the date of Ext.P4 and an order will be passed approving the appointment of the petitioner by the 4th respondent within a period of six weeks from the date of receipt of a copy of this judgment and the monetary benefits also will be disbursed accordingly. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp