IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 WP(C).No. 7301 of 2008(T) ------------------------- PETITIONER: ------------ M.S.KUSUMA, UPPER PRIMARY SCHOOL ASSISTANT GOVERNMENT UPPER PRIMARY SCHOOL, MUKKUTHODU. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION KOLLAM, PIN: 691 001. 3. MANAGER, S.S.M.U.P.SCHOOL KARALIKKONAM, ARKANNOOR P.O., KOLLAM DISTRICT PIN: 691 533. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA GOVERNMENT PLEADER, SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7301/2008/T APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE ORDER NO.212/2008 DATED 18.2.2008 OF THE MANAGER, S.S.M.U.P. SCHOOL, KARALIKKONAM. EXT. P2: COPY OF THE ORDER NO.B2 20205/07 DATED 21.1.2008 OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. EXT. P3: COPY OF THE ORDER NO.B4-1566/08 DATED 15.2.2008 OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No. 7301 of 2008(T) ======================= Dated this the 7th day of April, 2008 JUDGMENT The petitioner is a protected Upper Primary School Assistant. She is aggrieved by the action of the 2nd respondent in including her in the list of protected teachers to be appointed in various new schools. Her contention is that she has only one more year of service left since she is to retire on 31.5.2009 and therefore, it is totally unjust to disturb her, when persons far junior to her are available in Ext.P3 list of protected teachers to be appointed in new schools. Petitioner also points out that originally the list contained only 10 persons and her number has been added as the 11th person. The petitioner also suspects that the petitioner's number has been included to protect somebody else. The learned counsel appearing for the manager submits that he was totally unaware that the petitioner was due to retire in an year's time. As far as he is concerned, he only chose one of the protected teacher available in Ext.P3 for which he cannot be W.P.(C) No. 7301/2008/T -2- found fault with. The learned Government Pleader submits that petitioner being a protected teacher she has no choice and is bound to accept any appointment given to her, for which consideration of seniority is not relevant. 2. Counsel for the manager also relies on the decision of this Court in judgment dated 29.11.1983 in OP No.10295 of 1983 wherein this Court has held that the posting of a teacher to her liking or otherwise is not a matter to be considered in proceedings under Article 226 of Constitution of India. Whatever be the legal aspects involved, it was unjust to disturb the petitioner at this time when she has hardly one more year to retire. As far as the decision relied upon by the manager is concerned, that was not a case where the teacher was to retire within a short time. In the above circumstances, justice demands that the petitioner should not be disturbed at this time. Therefore, I direct that the appointment of the petitioner be cancelled and the petitioner be reverted back to the Government Upper Primary School Mukkuthodu. The orders in this regard shall be passed within one month from the date of receipt of a copy of this judgment by the Deputy Director and the manager. W.P.(C) No. 7301/2008/T -3- The manager need issue orders only after Deputy Director passes orders. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE jp