IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 3689 of 2011(I) -------------------------------- PETITIONER(S): ----------------------- LOUSHA CYRIAC, W/O.SHIBI MATHEW, AGED 39 YEARS, HIGH SCHOOL ASSISTANT (SS), ST.MARY'S HIGH SCHOOL NAKAPPUZHA, MUVATTUPUZHA EDUCATION DISTRICT, ERNAKULAM DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM - 14. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM, KAKKANAD - 682 030. 4. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA - 686 661, ERNAKULAM DISTRICT 5. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM, KOTHAMANGALAM - 686 691. BY GOVERNMENT PLEADER SMT. M.T. SHEEBA FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DS WP(C).No. 3689 of 2011(I) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF APPOINTMENT AND APPROVAL THEREOF. P2: COPY OF THE ORDER NO. EC (2)68112/2010/DPI/D.DIS OF THE 2ND RESPONDENT. P3: COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF. P4: COPY OF THE ORDER NO.B4/4951/09/K.DIS. OF THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM. P5: COPY OF THE ORDER NO.B1/3549/09/K.DIS. OF THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. P6: COPY OF THE ORDER NO.B4-23528/09/K.DIS. OF THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. P7: COPY OF THE ORDER NO. EC (3)46392/2010/DPI OF THE 2ND RESPONDENT. P8: COPY OF THE LETTER NO.46830/A1/2010/G.EDN. OF THE GOVERNMENT. P9: COPY OF THE ORDER NO. B4/19607/09 OF THE DEPUTY DIRECTOR. P10: COPY OF THE INTERIM ORDER IN CMP NO.32621/2002 IN O.P. NO.19178/2002. P11: COPY OF THE CIRCULAR NO. B1/20706/02 OF THE DEPUTY DIRECTOR (EDUCATION) MALAPPURAM. P12: COPY OF THE G.O. (P) NO. 178/2002/G.EDN. OF THE GOVERNMENT. P13: COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN. P14: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.2563/2008. P15: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.8039/2008-F. P16: COPY OF THE JUDGMENT OF THIS HON'BLE COURT W.P.(C)NO.18986 OF 2009-P. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE DS T.R. RAMACHANDRAN NAIR, J. * * * * * * * * * * * * * * * * * * W.P.(C). NO. 3689/2011-I * * * * * * * * * * * * * * * * * Dated this the 3rd day of November, 2011 J U D G M E N T The various orders culminating Ext. P8 by which the approval of appointment of the petitioner was declined on the ground that protected teacher was to be appointed, is under challenge in this writ petition. 2. It is pointed out by the learned counsel for the petitioner that the petitioner is a claimant under Rule 51-A of Chapter XIV-A Kerala Education Rules and therefore the executive orders insisting for deployment of protected teacher cannot have any legal effect. 3. The claim under rule 51-A, of the petitioner is clear from Ext. P1 to P4 orders. The same will show that the petitioner was appointed during different spells as UPSA from 17-10-2002 to 19-12-2002 in St. Mary's High School, Nakappuzha, HSA (SS) in L.F. High School, Oonnukal from W.P.(C) 3689/2011 2 15-07-2008 to 15-09-2008, from 17-10-2008 to 18-12-2008 in Muthalakodam S.G.H.S. School; and from 1-1-2009 to 31-3-2009 in L.F. High School. All these appointments have been granted approval. Finally petitioner was appointed by order dated 1-06-2009 in the vacancy of Smt. Omana who retired from service on 31-3-2009 in St. Mary's High School, Nakappuzha. 4. Ext. P5 is the order passed by the District Educational Officer declining the approval for the reason that in the light of Government Order No. 46/06/G.Edn., dated 1-02-2006, the vacancies in newly upgraded/opened school should be filled up with protected hands. In the subsequent orders Ext. P6, P7 and P8 also, same aspects have been highlighted. 5. The only question therefore is whether the claim under Rule 51-A could be declined. W.P.(C) 3689/2011 3 6. It is evident that even under the amendment of the said rule by introduction of second proviso, protected teachers from the same school alone will get preference. It is not a case were any protected teacher from the same school is available. 7. The petitioner has got a case that even otherwise, no protected teachers from other school were available. But the learned Government Pleader submits that six protected teachers were available. I need not go into the said controversy since even otherwise the provision under Rule 51-A will override the executive orders with regard to the absorption of protected teachers, in case of conflict. Evidently therefore the petitioner's claim under Rule 51-A cannot be denied. 8. The writ petition is hence allowed. Ext. P5 to P8 are W.P.(C) 3689/2011 4 quashed. There will be a direction to the 4th respondent to approve the appointment of the petitioner as HSA(SS) from 1-06-2009 and appropriate orders will be passed within two months from the date of receipt of a copy of this judgment. Petitioner will be sanctioned consequential monetary benefits also. No costs. T. R. Ramachandran Nair, Judge. ds