IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 WP(C).No. 19665 of 2009(C) -------------------------- PETITIONER: --------------- SINDHU K.K., UPPER PRIMARY SCHOOL ASSISTANT, CHETTIATH U.P.SCHOOL, PUDUPPANAM, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARPTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, VADAKARA. 4. MANAGER, CHETTIATH U.P.SCHOOL, P.O.PUDUPPANAM, VADAKARA, KOZHIKODE DISTRICT. 5. APARNA.T., ASSISTANT TEACHER, CHETTIATH U.P.SCHOOL, P.O.PUDUPPANAM, VADAKARA, KOZHIKODE DISTRICT. 6. HEADMISTRESS, CHETTIATH U.P.SCHOOL, P.O.PUDUPPANAM, VADAKARA, KOZHIKODE DISTRICT. BY GOVT.PLEADER SHRI SANDESH RAJA FOR R1 TO R3 ADV. SRI.M.V.BOSE FOR R4 SRI.VINOD MADHAVAN FOR R4 SMT.NISHA BOSE FOR R4 SMT.S.CHITHRA FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.19665/09 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF APPOINTMENT ORDER DT.4.6.07. EXT.P2: TRUE COPY OF PROCEEDINGS NO.B/2706/07 DT.23.11.07. EXT.P3: TRUE COPY OF STAFF STATEMENT AS ON 1.4.2010. EXT.P3(A): TRUE COPY OF STAFF STATEMENT AS ON 1.4.06. EXT.P4: TRUE COPY OF THE CLASS CHARGE IN 2000-01 EXT.P5: TRUE COPY OF REPORT DT.27.5.08 SUBMITTED BY THE 3RD RESPONDENT. EXT.P6: TRUE COPY OF ORDER DT.10.6.08 PASSED BY THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF ORDER PASSED BY THE 2ND RESPONDENT DT.6.3.2006. EXT.P8: TRUE COPY OF ORDER PASSED BY THE 1ST RESPONDENT DT.13.6.07. EXT.P9: TRUE COPY OF ORDER NO.B/3140/08/K.DIS.DT.1.12.08. EXT.P10: TRUE COPY OF JUDGMENT DT.1.1.09 IN W.P.(C)NO.37373/08 EXT.P11: TRUE COPY OF REVIEW PETITION DT.6.5.09. EXT.P12: TRUE COPY OF ORDER DT.2.7.09 OF THE 1ST RESPONDENT. EXT.P13: TRUE COPY OF DISTRIBUTION OF PERIODS OF WORK ALLOTTED TO SRI KUNHIKRISHNAN T.UPSA, DURING 2006-07 EXT.P14: TRUE COPY OF THE ATTENDANCE CERTIFICATES. EXT.P15: TRUE COPY OF APPOINTMENT ORDER ISSUED BY THE THEN MANAGER AND APPROVAL ACCORDED BY THE THEN AEO . EXT.P16: TRUE COPY OF APPOINTMENT ORDER ISSUED BY THE THEN MANAGER AND APPROVAL ACCORDED BY THE THEN AEO . EXT.P17: TRUE COPY OF THE STATEMENT ISSUED BY THE 6TH RESPONDENT. EXT.P18: TRUE COPY OF LETTER NO.8757/J1/91/G.EDN. DT.2.3.91 ISSUED BY THE 1ST RESPONDENT. EXT.P19: TRUE COPY OF GO(P)188/2000/G.EDN. DT.8.6.2000. EXT.P20: TRUE COPY OF LETTER NO.26327/J3/2000/G.EDN. DT.26.6.2000 ISSUED BY THE 1ST RESPONDENT. EXT.P21: TRUE COPY OF ORDER OF THE DECEASED MANAGER DT.5.6.06. W.P.(C)No.19665/09 2 EXT.P22: TRUE COPY OF THE APPOINTMENT ORDER ISSUED ON 5.6.2006. RESPONDENTS' EXTS: EXT.R4(A): TRUE COPY OF ORDER DT.7.11.08 OF THE ASST.EDUCATIONAL OFFICER, VATAKARA. EXT.R4(B): TRUE COPY OF ORDER DT.4.2.08 OF THE DEO, VATAKARA. EXT.R4(C): TRUE COPY OF ORDER DT.14.7.09 OF THE MANAGER OF CHETTIYATH UP SCHOOL. EXT.R4(D): TRUE COPY OF GOVERNMENT LETTER DT.26.6.2000 TO DPI. EXT.R5(A): TRUE COPAY OF TRAINED TEACHERS' CERTIFICATE DATED 11.11.05. EXT.R5(B): TRUE COPY OF ORDER DT.4.2.08 OF THE DEO. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.19665 Of 2009 ----------------------------------------------------- DATED THIS THE 29th DAY OF NOVEMBER, 2010 J U D G M E N T The petitioner is aggrieved by Exhibit P12, which is an order passed on the petition filed by the petitioner as per Exhibit P11. 2. Heard the learned counsel appearing for the petitioner, the learned Government Pleader appearing for respondents 1 to 3, the learned counsel appearing for the 4th respondent-Manager and the 6th respondent-Headmistress and the learned counsel appearing for the 5th respondent. 3. The matter concerns the rejection of the approval of appointment of the petitioner as UPSA in the School. A vacancy arose when one Shri T.Kunhikrishnan retired from service. He was working as UPSA and the petitioner was appointed in that vacancy from 4.6.2007 as per Exhibit P1 order. The approval was declined by the 3rd respondent initially holding the view that even though the vacancy arose in the post of UPSA, the teacher who retired from the post is a TTC holder. The petitioner being a B.Ed.degree holder cannot be accommodated against the said post. This was challenged in revision petition before the Director W.P.(C)No.19665/09 -2- of Public Instructions which was disposed of by the Additional Director as per Exhibit P6. The appeal by the Manager was allowed and the AEO was directed to approve the appointment if it is otherwise in order. The report of the AEO as Exhibit P5 was relied on therein. Thereafter, the AEO passed Exhibit P9 order rejecting the approval, against which the petitioner approached this Court by filing W.P.(C)No.37373/08, which was disposed of by Exhibit P10 judgment without prejudice to the rights of the petitioner to avail the statutory remedy. 4. Various contentions have been raised by the petitioner in the Writ Petition. It is mainly pointed out in Ground No.D that before passing Exhibit P12 order, the petitioner was not issued any notice. 5. The 5th respondent has been appointed as an LPSA in the year 2008 and that appointment has also been approved. 6. The learned counsel for the petitioner raised various contentions. It is pointed out that in the School, even after the amendment of the Rules in 2000, some of the B.Ed. holders appointed prior to the amendment, were working as LPSAs and therefore the view taken by the AEO is not correct. This is W.P.(C)No.19665/09 -3- opposed by the learned Government Pleader by submitting that going by the staff fixation, apart from the Headmaster, seven UPSA posts were sanctioned in the school along with six LPSA posts and there were eight B.Ed. holders among the teachers and including Shri T.Kunhikrishnan who retired, five TTC holders were there. Accordingly, it is contended that a vacancy has arisen in the post of LPSA and the petitioner being a B.Ed.Degree holder could not have been appointed. This contention is supported by the learned counsel appearing for the Manager also. Incidentally, the present Manager is Shri T.Kunhikrishnan, who retired from the profession. 7. All these aspects can be properly assessed only after verifying various proceedings including the staff fixation orders relevant. The issues will have to be gone into afresh. All the parties are allowed to file appropriate statements with regard to the details necessary to be considered. 8. In that view of the matter and in view of the fact that the petitioner and other parties were not heard by the Government while passing Exhibit P12 order, the same is quashed. There will be a direction to the Government to pass a W.P.(C)No.19665/09 -4- fresh order on Exhibit P11 after hearing the petitioner and all other parties, within a period of three months from the date of receipt of a copy of this judgment. The status quo as on today as regards the petitioner will continue, till orders are passed by the Government. The Writ Petition is disposed of as above. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE.) dsn