IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 WP(C).No. 31437 of 2008(P) ---------------------------------------- PETITIONER(S): ------------------------ 1. C. ARAVINDAKSHA MENON, S/O.NARAYANA MENON, AGED 68 YEARS, MANAGER, A.L.P.SCHOOL, VELUKKARA, AIKKARAKUNNU, NADAVARAMBA, IRINJALAKUDA - 680 661. 2. P. BINCY JOSE, LOWER PRIMARY SCHOOL ASSISTANT A.L.P. SCHOOL, VELUKKARA, AIKKARAKUNNU, NADAVARAMBA, IRINJALAKUDA - 680 661. BY ADV. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM - 14. 3. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT. R1 TO R4 BY GOVT. PLEADER MR.T.T. MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 31437 of 2008(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF. EXT.P2: COPY OF THE ORDER NO.F2/33872/07/DPI/K.DIS. OF THE DIRECTOR. EXT.P3: COPY OF THE G.O.(MS) NO.275/99/G.EDN. OF THE GOVERNMENT. EXT.P4: COPY OF THE APPOINTMENT ORDER. EXT.P5: COPY OF THE ORDER NO.E-1929/2007/L.DIS. OF THE ASST. EDL. OFFICER. EXT.P6: COPY OF THE REVISION PETITION FILED BY THE MANAGER BEFORE THE GOVERNMENT. EXT.P7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 36612/2007-H. EXT.P8: COPY OF THE HEARING NOTES. EXT.P9: COPY OF THE GO.(RT)NO.3652/08/G. EDN. OF THE GOVERNMENT. EXT.P10: COPY OF THE G.O.(P) NO.259/2006/G.EDN. OF THE GOVERNMENT. EXT.P11: COPY OF THE CIRCULAR NO.4545/J2/2007/G. EDN. OF THE GOVERNMENT. EXT.P12: COPY OF THE ORDER NO.B5/16298/2009/K.DIS. OF THE DEPUTY DIRECTOR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.31437 Of 2008-P ----------------------------------------------------- DATED THIS THE 30th DAY OF MAY, 2011 J U D G M E N T The rejection of approval of appointment of the 2nd petitioner to the post of Lower Primary School Assistant in a regular vacancy arose from 1.6.2007 has led to the filing of this Writ Petition. Exhibit P5 is the order passed by the Assistant Educational Officer which was challenged in revision before the Government and the Government passed an order as per Exhibit P9. 2. The reason stated by the Government to decline the approval is that the school is an uneconomic one. The Government has relied upon G.O.(P)No.259/06/GE dated 12.10.2006 and Circular No.4545/J2/07/GE dated 18.5.2007. 3. The learned counsel for the petitioners points out that the view taken by the Government cannot be supported in the light of Exhibit P3 Government Order and the decision of a Division Bench of this Court in Geetha S. v. Geo Thomas K. (2009(4) KHC 296(DB). Reliance is also placed on a recent W.P.(C)No.31437/08 -2- order passed by the Government G.O.(P)No.52/11/Gen.Edn. dated 26.2.2011. 4. The 2nd petitioner was initially appointed as a Lower Primary School Assistant from 1.7.2004 to 2.9.2006, which was approved as per Exhibit P1. During the second spell of appointment from 3.9.2006 to 2.9.2009, the appointment was placed for approval; but it was declined by the Educational Officers and finally the Director ordered approval as per Exhibit P2 order. 5. A retirement vacancy arose on 1.6.2007, while the 2nd petitioner was working as a leave substitute and accordingly the she was appointed in that vacancy as per Exhibit P4. Exhibit P3 is the Government Order dated 9.11.1999, wherein the Government clarified that services of the leave substitute will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. It is pointed out that the appointment made by the Manager is in tune with Exhibit P3 and it cannot be said as wrong. 6. The right of leave substitute for getting accommodated in the permanent vacancy was considered by a Division Bench of W.P.(C)No.31437/08 -3- this Court in Geetha's case (supra). Reliance was placed before the Division Bench of Exhibit P3 order herein and after considering Rule 51 of Chapter XIV-A of the Kerala Education Rules it was held thus in paragraph Nos.5 and 6. “5. ......... ........ We have already quoted the relevant portion of Ext.R6(a) order, which mandates that incumbents working in leave vacancies shall be accommodated in the regular vacancies having regard to their seniority. The said order further explains or clarifies Rule 51 of Chapter XIV-A KER. Sub-section (2) of Section 7 of the Kerala Education Act says that, “The Manager shall be responsible for the conduct of the school in accordance with the provisions of this Act and the rules thereunder”. Rule 9 of Chapter III of the KER, makes it one of the mandatory duties of the Manager to comply with the orders issued by the Government and the Department in conformity with the provisions of the Kerala Education Act and the Rules. Rule 9(1) of Chapter III of the KER reads as follows: “9. Duties and powers of the managers of Aided Schools.- (1) The Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education 'Act and the Rules issued thereunder. He shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the Rules issued thereunder.” 6. In the light of the above provisions, the Manager could have made the appointments/retrenchments only in accordance with Rule 51 of Chapter XIV-A of the KER quoted above and Ext.R6(a) order mentioned above. The Manager could not take shelter behind the plea that when the regular vacancy arose, the appointment of the appellant in the maternity leave vacancy was not approved. The Manager knew that the appointment was in a maternity leave vacancy which arose in a post sanctioned as per the Staff Fixation Order of that year, that the appellant was qualified for appointment as UPSA W.P.(C)No.31437/08 -4- also and therefore, even if there is delay, the appellant's appointment was going to be approved. Therefore, when the regular vacancy arose, the appellant should have been accommodated in that vacancy and a fresh hand could have been appointed only in the remaining portion of the maternity leave vacancy, in which the appellant was working. .... ....” Evidently, the above dictum helps the case of the 2nd petitioner also, since the very same Government Order was interpreted. 7. The learned Government Pleader pointed out that being an uneconomic school, the vacancy can be filled up only by a protected hand as specified in Exhibits P10 and P11 Government Order and Circular respectively. 8. It is pointed out by the learned counsel for the petitioners that Exhibit P10 applies only for fresh appointments and an appointment like this of a person already working in the school as leave substitute will have to be regularised and approved against the permanent vacancy. 9. In fact, the learned counsel for the petitioners also relied upon Government Order dated 26.2.2011 which recognises the preferential right of claimants under Rule 43 of Chapter XIV-A KER. 10. In the light of the above, the matter requires W.P.(C)No.31437/08 -5- reconsideration. Hence the impugned order Exhibit P9 is quashed. The Government will reconsider the matter in the light of the Government Order Exhibit P3 and the dictum laid down in Geetha's case (2009(4) KHC 296(DB) and also the Government Order dated 26.2.2011. Appropriate orders will be passed within a period of four months from the date of receipt of a copy of this judgment, after hearing the petitioners. The Writ Petition is disposed of as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn True copy P.A.to Judge