IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 17693 of 2010(J) ---------------------------------------- PETITIONER(S): ------------------------- ANWAR SADATH E., PHYSICAL EDUCATION TEACHER, A.M.HIGH SCHOOL, VENGOOR, PATTIKKAD P.O., MANNARMALA, MALAPPURAM. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.T.S.SHYAM PRASANTH. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM DISTRICT. 5. THE MANAGER, A.M.HIGH SCHOOL, VENGOOR, PATTIKKAD P.O., MANNARMALA, MALAPPURAM. R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.T.T. MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17693/2010 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DTD. 15/07/2005 ISSUED BY THE 5TH RESPONDENT. P2: COPY OF THE ORDER DTD. 2/03/2006 ISSUED BY THE 4TH RESPONDENT. P3: COPY OF ORDER DTD. 20/06/2006 ISSUED BY THE 3RD RESPONDENT. P4: COPY OF ORDER DTD. 10/07/2007 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF ORDER DTD. 16/05/2008 ISSUED BY THE 1ST RESPONDENT. P6: COPY OF ORDER DTD. 5/12/2008 ISSUED BY THE 1ST RESPONDENT. P7: COPY OF THE ORDER DTD. 9/06/2003 OF THE 1ST RESPONDENT. P8: COPY OF ORDER DTD. 3/3/2006 ISSUED BY THE 1ST RESPONDENT. P9: COPY OF ORDER DTD. 14/02/2007 ISSUED BY THE 1ST RESPONDENT. P10: COPY OF JUDGMENT DTD. 19/08/2009 IN WP(C) NO.2946/2009. P11: COPY OF ORDER DTD. 19/03/2010 ISSUED BY THE 1ST RESPONDENT. P12: COPY OF JUDGM ENT IN WP(C) NO.33153/2006 DTD. 4/04/08. P13: COPY OF JUDGMENT IN WP(C) NO.12044/2008 DTD. 10/07/08. P14: COPY OF COMMUNICATION NO.B3/2804/2011 DTD. 10/02/2011 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. RESPONDENT'S EXHIBIT: R1(A): COPY OF G.O.(P) NO.178/02/GEN.EDN. DTD. 28/06/2002. /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.17693 Of 2010 ----------------------------------------------------- DATED THIS THE 18th DAY OF MARCH, 2011 J U D G M E N T A Physical Education Teacher who did not get approval of appointment so far even though he was appointed in the year 2005, is before this Court. The orders under challenge are Exhibits P2 to P4 and P11. In Exhibit P2, the view taken is that in the light of G.O.(P)No.178/02/G.Edn. dated 28.6.2002, vacancies of newly created/upgraded schools will be filled up by protected teachers. The same was reiterated in Exhibits P3 and P4 orders passed by the higher authorities also. Ultimately, the Government also confirmed the same by Exhibit P11. The learned counsel for the petitioner submitted that Exhibits P8 and P9 orders granting approval for similar appointments in nearby schools have not been taken note of by the Government. 2. Earlier, this Court in Exhibit P10 judgment directed the Government to reconsider the matter in the light of the findings rendered in Paragraph No.4 of the judgment. W.P.(C)No.17693/10 -2- 3. The consistent plea raised by the petitioner is that at the time of appointment, a protected hand was not available. But in Exhibit P11 the view taken is that appointment of teachers covered by Exhibits P10 and P11 are approved against orders on G.O.(P)No.178/2002/G.Edn. dated.28.6.2002 and hence the case of the Writ Petitioner cannot be considered based on these bad precedents. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. In the counter affidavit filed by the respondents the orders are sought to be supported. 6. The main question is whether any protected hand was available in the Education District for appointment at the time of issuance of Exhibit P1. In this context, the learned counsel for the petitioner relies on Exhibit P14, a communication from the Deputy Director of Education dated 10.2.2011 to the Manager of the school. Therein, it is pointed out that to the vacancies of HSAs in various subjects and HSA Physical Science and the post of Physical Education Teachers, as on 1.8.2006 and 25.8.2006 in the Wandoor Education District protected teachers were not available. W.P.(C)No.17693/10 -3- 7. The learned Government Pleader on getting instructions also submitted that the details reflected in Exhibit P14 are correct and at the time of appointment of the petitioner no protected Physical Education Teacher was available in the said Education District. 8. In that view of the matter, the petitioner is entitled to succeed in the Writ Petition. In similar circumstances this Court in Moosakutty v. D.E.O., Wandoor (2009(3) KLT 863) has upheld the right of the teacher for approval and the said reasoning will apply to the facts of this case also. Therefore, the Writ Petition is allowed. The impugned orders are quashed. 9. There will be a direction to the 4th respondent-District Educational Officer to approve the appointment of the petitioner and pass appropriate orders in terms of Exhibit P1 order within a period of two months from the date of receipt of a copy of this judgment and the monetary benefits also will be released to the petitioner accordingly. The Writ Petition is allowed as above. dsn Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE)