IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 19185 of 2011(W) -------------------------- PETITIONER(S): --------------- S.V.ANIL, S/O.SUKUMARAN, KALYANI NIKETHAN, NETTATHANNI, MULLOOR P.O., THIRUVANANTHAPURAM (PEON, DEVASWOM BOARD HIGHER SECONDARY SCHOOL, PARUMALA). BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA-689101. 2. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA-689101. 3. THE CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS/SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS, NANDHANCODE, THIRUVANANTHAPURAM-695001. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695001. 5. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 6. PERSONAL ASSISTANT TO DISTRICT EDUCATIONAL OFFICER, THIRUVALLA, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA-689101. ADV. SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD FOR R3 GOVERNMENT PLEADERSRI. V. VIJULAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19185 of 2011(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE APPOINTMENT ORDER DATED 18.1.2002 ISSUED BY R3. EXT.P2. COPY OF THE REGULAR APPOINTMENT OF THE PETITIONER AS FULL TIME MENIAL IN DEVASWOM BOARD HIGHER SECONDARY SCHOOL, THAKAZHY EXT.P3. COPY OF THE ORDER OF PROMOTION AND APPOINTMENT OF THE PETITIONER AS PEON DATED 28.5.2009 ISSUED BY R3. EXT.P4 COPY OF THE ORDER DATED 26.11.2009 PASSED BY RESPONDENT NO.2 REFUSING TO APPROVE THE PROMOTIN OF THE PETITIONER. EXT.P5 COPY OF THE APPEAL DATED 23.12.2009 SUBMITTED BY R3 BEFORE R1. EXT.P6 COPY OF THE REPRESENTATION DATED 6.1..2010 SUBMITTED BEFORE R1. EXT.P7 COPY OF THE JUDGMENT DATED 28.5.2010 PASSED BY THIS COURT. EXT.P8 COPY OF THE ORDER DATED 5.3.2010 ISSUED BY R1. EXT.P9 COPY OF THE GOVERNMENT ORDER BEARING GO(MS)NO.258/90/G.EDN DATED 15.12.1990. EXT.P10 COPY OF THE APPOINTMENT ORDER DATED 13.7.2006 RELATING TO SRI.R. RAJAN. EXT.P11 COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 RELATING TO SRI. SYAM MOHAN M.C. EXT.P12 COPY OF THE GOVERNMENT ORDER DATED 18.8.2010 PASSED BY R3. EXT.P13 COPY OF THE DECLARATION SUBMITTED BY R3 IN THE CASE OF SRI. BIJU SURESH. EXT.P14 COPY OF THE JUDGMENT DATED 26.10.2010 PASSED BY THIS COURT IN WPC.NO.31643/2010E EXT.P15 COPY OF THE DECLARATION DATED 29..5.2009 SUBMITTED BY R3. EXT.P16 COPY OF THE JUDGMENT DATED 22.2.2011 PASSED BY THIS COURT IN W.A.NO.207/2011. EXT.P17 COPY OF THE JUDGMENT DATED 3.3.2011 PASSED BY THIS COURT IN WPC1086/2011. EXT.P18 COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.178/02/G.EDN DATED 28.6.2002. EXT.P19 COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.46/06/G.EDN DTD 1.2.2006. EXT.P20 COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.52/11/G.EDN DATED 26.2.2011. EXT.P21 COPY OF THE ORDER DATED 5.5.2011 ISSUED BY R6. EXT.P22 COPY OF THE INFORMATION SUPPLIED UNDER THE RIGHT TO INFORMATION ACT, 2005 BY THE PUBLIC INFORMATION ATTACHED TO THE OFFICE OF R1 DATED 10.8.2010. /TRUE COPY/ P.A. TO JUDGE cl T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.19185 Of 2011 -------------------------------------------------- DATED THIS THE 12th DAY OF AUGUST, 2011 J U D G M E N T The challenge is against the orders culminating in Exhibit P21 whereby the approval of appointment of the petitioner by promotion as a peon in the Devaswom Board High School, Parumala has been rejected. The reason for rejection mentioned in Exhibit P21 is that the school is a newly upgraded one and the vacancy has to be filled up by a protected teacher/non-teaching staff. 2. It is mainly contended by the petitioner that no protected hands are available either in Thiruvalla or in the Pathanamthitta Educational Districts. 3. The background of the case is the following. 4. The petitioner entered service as a Full Time Menial in a short team vacancy from 18.1.2002 to 16.4.2002 in the Devaswom Board High School, Vamanapuram which appointment was approved by the District Educational Officer, Attingal. Thereafter he was appointed in a regular vacancy of Full Time W.P.(C)No.19185/11 -2- Menial from 3.5.2002 onwards in the Devaswom Board High School, Thakazhi and the said appointment was also approved. The petitioner was later promoted and appointed as Peon from 14.8.2003 to 15.10.2003 in the Devaswom Board High School, Kangazha. After the expiry of the said period, he went back to join as a Full Time Menial and continued in the Devaswom Board Higher Secondary School, Thakazhi from 16.10.2003. When a regular vacancy of Peon had arisen in the Devaswom Higher Secondary School, Parumala from 1.4.2009 onwards, the 3rd respondent promoted the petitioner as evident from Exhibit P3 order. Initially, the approval of promotion of the petitioner was rejected by the 2nd respondent on the ground that the seniority list has not been produced and this was challenged in appeal by the 3rd respondent before the 1st respondent. The petitioner also approached the 1st respondent as per Exhibit P6 representation and thereafter filed a Writ Petition No.1952/2010 and this Court directed the 1st respondent to pass orders as per Exhibit P7 judgment. The appeal also was rejected for the reason that the approved seniority list has not been produced, as per Exhibit P8 order. W.P.(C)No.19185/11 -3- 5. It is the case of the petitioner that in the case of similarly placed persons, declarations submitted by the Managers have been accepted and in support of the said plea Exhibits P10 and P11 have been produced. Reference is made to Exhibit P12 Government Order and Exhibit P14 judgment of this Court in W.P. (C)No.31643/10 in respect of one Shri Biju Suresh. Therein this Court allowed the 2nd respondent therein to consider the proposal for approval of appointment of the said person as Peon afresh, taking into account Exhibit P13 declaration. It is further pointed out that the declaration has already been submitted as evident from Exhibit P15. Exhibit P14 judgment has been upheld by the Division Bench of this Court as per Exhibit P16. It is pointed out that thereafter the approval of appointment of Shri Biju Suresh was granted. Exhibit P17 is the subsequent judgment of this Court filed by the petitioner before this Court and this Court directed the competent authority to consider the matter in the light of the declaration filed by the Manager. Thereafter the present order was passed. 6. Now the only question is whether the petitioner is entitled for grant of approval in the light of the dictum laid down W.P.(C)No.19185/11 -4- by this Court in Moosakutty v. DEO, Wandoor 2009(3) KLT 863. It is averred in paragraph No.20 of the Writ Petition that there was no protected hands were available for filling up the vacancy of non-teaching staff through out the educational district in Pathanamthitta or Thiruvalla and the information supplied by the Public Information Officer attached to the Office of the 1st respondent has been produced as Exhibit P22 in support of the above contention. 6. As directed by this Court, the 2nd respondent has filed a counter affidavit. Therein, in paragraph No.5, it is stated that no protected hand in the post of Peon was available in Pathanamthitta or Thiruvalla Educational District as on the date of appointment of the petitioner and therefore no list of protected non-teaching staff was communicated to the Manager. But the second respondent has relied upon Rule 5A of Chapter XIV A to support the plea that a protected hand has to be accommodated. The said rule which has come into force only subsequent to the arising of the vacancy herein can only be perspective and therefore will not be applicable herein. 7. The Management has also filed a counter affidavit W.P.(C)No.19185/11 -5- wherein it is averred that no protected hands are available for appointment. 8. In the light of the decision of this Court in Moossakutty's(supra) case, which was upheld by the Division Bench as well as the Apex Court, the obligation of the Manager to appoint a protected hand evidently arises only if a protected hand is available in the Educational District/Sub District concerned. Herein as the same is absent, the view taken in Exhibit P21 cannot be supported. Therefore, Exhibit P21 is quashed. 9. It is declared that the petitioner is entitled for grant of approval and appropriate orders will be passed approving the appointment of the petitioner as Peon within a period of one month from the date of receipt of a copy of this judgment and he will be granted all consequential monetary benefits also. The Writ Petition is allowed as above. Sd/-(T.R. RAMACHANDRAN NAIR, JUDGE) dsn W.P.(C)No.19185/11 -6- T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.19185 Of 2011 -------------------------------------------------- DATED THIS THE 14TH DAY OF JULY, 2011 O R D E R Urgent notice on admission. The learned Government Pleader takes notice for respondent Nos.1, 2, 4, 5 and 6. The learned Standing Counsel takes notice for the 3rd respondent. 2. The learned Standing Counsel for the Board seeks time to get instructions. 3. The learned Government Pleader will get instructions as to whether as on the date of appointment of the petitioner any protected hand was available in Pathanamthitta or Thiruvalla Educational Districts and if so whether such a list was communicated to the Manager. The learned Government Pleader will file an affidavit in that regard. Post after 10 days. T.R.RAMACHANDRAN NAIR, JUDGE. Hand over to both sides. dsn