IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 29948 of 2009(K) --------------------------------------- PETITIONER: ------------------- V.L.LIJIKUMARI, JR.SANSKRIT TEACHER (P.T), T.K.D.M., U.P.S., NADUVILEMURI, SOORANAD NORTH. BY ADVS. MR.M.V.BOSE, MR.VINOD MADHAVAN, SMT. NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 4. THE ASSISTANT EDUCATIONAL OFFICER, SASTHAMCOTTA. 5. THE MANAGER, T.K.D.M., U.P.S., NADUVILEMURI, SOORANAD NORTH. R1 TO R4 BY SR.GOVERNMENT PLEADER SMT. T.B. REMANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29948/2009-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER ISSUED IN FAVOUR OF THE PETITIONER DTD. 07/06/2007. EXT.P.2: COPY OF THE STATEMENT OF CHARGE OF THE STAFF. EXT.P.3: COPY OF THE DECLARATION DTD. 07/06/2007. EXT.P.4: COPY OF THE ORDER DTD. 09/10/2007 ISSUED BY THE ASST. EDL. OFFICER. EXT.P.5: COPY OF THE LETTER OF THE MANAGER DTD. 29/10/2007 TO ASST. EDL. OFFICER, SASTHAMCOTTA. EXT.P.6: COPY OF THE LETTER DTD. 02/11/2007 OF THE A.E.O. TO THE R.5. EXT.P.7: COPY OF THE G.O.(P).NO.46/G. EDN. DTD. 01/02/2006. EXT.P.8: COPY OF THE REPRESENTATION DTD. 13/11/2007 BEFORE THE KERALA EDUCATION MINISTER. EXT.P.9: COPY OF THE REPRESENTATION SUBMITTED BY KOCHU KUNJU DTD. 09/04/08 TO THE R.3. EXT.P.10: COPY OF THE ORDER DTD. 23/09/2008 OF THE R.5. EXT.P.11: COPY OF THE REPRESENTATION FILED BY SRI. KOCHU KUNJU BEFORE THE R.2. EXT.P.12: COPY OF THE LETTER DTD. 02/04/2009 TO THE R.2. FROM A.E.O. EXT.P.13: COPY OF THE APPLICATION DTD. 20/10/2009 UNDER RIGHT TO INFORMATION ACT. EXT.P.14: COPY OF THE DETAILS OBTAINED FROM A.E.O'S OFFICE, REGARDING PROTECTED TEACHERS. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29948 of 2009-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of December, 2009. JUDGMENT The matter concerns the rejection of approval of appointment of the petitioner which has attained a finality as per Ext.P6 order. The petitioner herein was appointed as a Junior Sanskrit Teacher (Part Time) as per Ext.P1 order. This was in the retirement vacancy of Smt. G. Amminikutty Amma who retired from service on 31.3.2007. 2. The ground on which the approval is declined is that at present as there is no protected teacher in the school, the management is bound to absorb at least one protected teacher. Ext.P4 is the communication addressed to the Manager in this regard. The Manager submitted a reply as per Ext.P5. He took the stand that according to the bonded obligation as prescribed under Rule 6(viii) of Chapter V K.E.R. the then Manager had appointed one Smt. N. Radhamany Amma, a protected teacher from St. Mary’s L.P.S., Sooranad on 7.7.1980. Exts.P7 and P8 were subsequent representations filed before the Government. By Ext.P9, a further representation was given to the District Educational Officer by the Secretary of the Trust seeking to approve the appointment. Thereafter, by Ext.P10, an wpc 29948/2009 2 appointment order was issued to a protected teacher. By Ext.P11, the Director of Public Instruction was requested again to issue direction to the Asst. Educational Officer for appointing Shri S. Shameer as U.P.S.A. Ext.P12 is the communication addressed by the Asst. Educational Officer to the Director of Public Instruction detailing the facts relating to the appointment of the petitioner and Shri S. Shameer. It is pointed out therein that the Manager expressed his willingness to appoint a protected teacher and one Smt. R. Radhamani, protected Sanskrit teacher was proposed. In these circumstances, the Asst. Educational Officer has pointed out that the the petitioner and the other teacher are remaining for want of approval. 3. It is at this stage this writ petition has been filed by the petitioner contending that no protected teacher was available in the Educational district and therefore there may be a direction to approve the appointment of the petitioner. 4. Along with I.A. No.14214/2009, the petitioner has produced Ext.P14, a reply given by the Public Information Officer attached to the office of the Asst. Educational Officer, Sasthamcotta, wherein in answer to question No.3, it is recorded that no undeployed protected teacher is available in the Sasthamcotta Sub district. The corresponding question was whether any undeployed teacher was available as on the date of wpc 29948/2009 3 appointment of Smt. Lijikumari (petitioner herein). The learned Govt. Pleader was therefore directed to get instructions on this aspect by an interim order dated 19.11.2009 and the Asst. Educational Officer was directed to file an affidavit in the matter. 5. The Asst. Educational Officer has filed a counter affidavit. It is revealed from the counter affidavit that the petitioner was appointed in the retirement vacancy of Smt. G. Amminikutty Amma, PT L.G. Sanskrit Teacher. In para 3 it is stated that a protected teacher had been absorbed during the year 1980-81 who subsequently went back to the parent school. The Manager had issued an order of appointment to Smt. Radhamony, Protected teacher belonging to KNNMHS, Pavithreswaram by order dated 23.9.2008, but it was later informed that there is no such protected teacher in the said school as reported by the Manager of the said school. It is averred in para 5 that there are are no protected and undeployed Sanskrit teacher in Sasthamcotta Sub District as on the date of appointment of the petitioner. 6. Therefore, the question is whether there is any failure on the part of the Manager to comply with the obligation under Rule 6(viii) of Chapter V K.E.R. In fact, the said obligation of the Manager is explicit and going by G.O.G.O.(P) No.46/06/G.Edn. dated 1.2.2006 the Manager will have to wpc 29948/2009 4 appoint at least one protected teacher. 7. Herein, the facts show that as on the date of appointment of the petitioner, there was no undeployed protected teacher available to be appointed in the said vacancy. Evidently, therefore, the department cannot put forth the requirement of appointment of a protected teacher, to reject the approval. Herein the Manager had appointed one protected teacher in 1980-81 who was redeployed to the parent school. 8. At this stage, we need not go into the question of ambit and scope of the statutory obligation of the Manager in this case. What is clear from the counter affidavit of the 4th respondent is that there was no protected hand available for deployment as on the date of appointment of the petitioner. The reason for rejection of approval is the only challenge. Therefore, if no protected hand is available for redeployment, the enforcement of the obligation under the agreement as per Rule 6(viii) is an impossibility as on the date of appointment of the petitioner. Therefore, the appointment made by the Manager is a valid one and liable to be approved. In fact, the judgment in W.P.(C) No.4623/2009 this Court has considered the question whether Rule 6(viii) can be said to have been complied with by the Manager in the absence of availability of any protected hand in the Sub district itself. It was held that as there is no protected teacher available wpc 29948/2009 5 in the Sub-district concerned, the Manager cannot be faulted for not appointing the protected teacher to the vacancy to which the petitioner therein was appointed. 9. In that view of the matter, Ext.P6 order cannot be sustained and the same is quashed. The appointment of the petitioner is liable to be approved. There will be a direction to the 4th respondent to approve the appointment of the petitioner in terms of Ext.P1 appointment order, within a period of one month from the date of receipt of a copy of this judgment. The monetary benefits due will be disbursed within a further period of two months. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/