IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 30247 of 2008(A) -------------------------------- PETITIONERS: ---------------- 1. A.AHAMED, S/O.AYAMU, AGED 68 YEARS, MANAGER, SOOPIKUTTY NAHA HOSPITAL HIGHER SECONDARY SCHOOL, BEACH ROAD, PARAPPANANGADI-676303. 2. S.NIZARUDEEN, S/O.SHAHUL HAMEED, AGED 39 YEARS, KANIYAM THARAYIL, KAKKAKUNNU-690522, KOLLAM DISTRICT (HIGH SCHOOL ASSISTANT (HINDI) SOOPIKUTTY NAHA MEMORIAL HIGHER SECONDARY SCHOOL, BEACH ROAD, PARAPPANANGADI-676303). 3. V.P.SHABNA, HIGH SCHOOL ASSISTANT(HINDI) SOOPIKUTTY NAHA MEMORIAL HIGHER SECONDARY SCHOOL, PARAPPANANGADI-673303. BY MR.V.A.MUHAMMED, ADVOCATE. MR.K.E.HAMZA, ADVOCATE. RESPONDENTS: ------------------ 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCAITON DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. TE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 5. THE HEADMASTER, SOOPIKUTTY NAHA MEMORIAL HIGHER SECONDARY SCHOOL, BEACH ROAD, PARAPPANANGADI-676 303. BY MR. K. RAMESH, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30247/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.B1/4886/02/L.DIS OF THE DIST. EDL. OFFICER DTD. 5.12.2002. EXT. P2 : COPY OF ORDER No.B1/8401/02 OF -DO- DTD. 15.2.03. EXT. P3 : COPY OF ORDER No.B1/5476/03 OF -DO- DTD. 25.10.03. EXT. P4 : COPY OF ORDER No.B4/1162/2003/K.DIS. OF THE DY.DIRECTOR OF EDN. DTD. 5.12.03. EXT. P5 : COPY OF ORDER No.B4-12146/03/K.DIS OF -DO- DTD. 30.9.03. EXT. P6 : COPY OF ORDER No.B4-42661/03/K.DIS. OF -DO- DTD. 21.3.04. EXT. P7 : COPY OF ORDER No.EM4/43842/04/DPI/K.DIS OF R2 DTD. 24.7.04. EXT. P8 : COPY OF ORDER No.EM4/36604/04/DPI/K.DIS OF R2 DTD. 20.12.04. EXT. P9 : COPY OF REVISION PETITION FILED BEFORE THE GOVT. DTD. 19.8.04. EXT. P10 : COPY OF -DO- DTD. 11.01.05. EXT. P11 : COPY OF ORDER No.K.DIS. B2/8580/04 OF THE DIST. EDL. OFFICER DTD. 2.12.04. EXT. P12 : COPY OF ORDER No.K.DIS.B4/1438/05 OF THE DY. DIRECTOR OF EDN. DTD. 16.5.05. EXT. P13 : COPY OF ORDER No.EM(4)/73692/05/DPI/K.DIS OF R2 DTD. 17.11.05. EXT. P14 : COPY OF PETITION FILED BEFORE THE GOVT. DTD. 2.1.06. EXT. P15 : COPY OF -DO- DTD. 25.5.06. EXT. P16 : COPY OF -DO- DTD. 9.6.07. EXT. P17 : COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) No.3031/2008-J. DTD. 25.1.08. EXT. P18 : COPY OF G.O.(Rt) No.3290/2008/G.EDN OF GOVT. DTD. 18.7.08. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.30247 OF 2008 --------------------------------------- Dated this the 11th day of August, 2009. J U D G M E N T The 1st petitioner is the Manager of an aided school and the petitioners 2 and 3 are High School Assistants (Hindi) appointed during different spells in the same school. The 2nd petitioner has got three spells of appointment namely, from 06.06.2002 to 08.08.2002 and 28.08.2002 to 01.11.2002 and thereafter he was appointed on regular basis from 02.06.2003. The approval of these appointments were rejected by Exhibits P1 to P3 orders. These orders were confirmed in appeals by Exhibits P4 to P6 orders and later by the Director of Public Instruction in Exhibits P7 and P8. 2. As far as the 3rd petitioner is concerned, she was appointed in the vacancy caused by the relief of the 2nd petitioner from 10.09.2004. She was relieved on 31.03.2005 for want of 9 months service. She was re-appointed on 01.06.2005 and is continuing in service. W.P.(C) No.30247/2008 2 3. The apparent reason for rejection of approval is that a protected teacher has not been appointed as the school is a newly opened one. The said reason reiterated in various orders passed by the Educational Officers stands finally confirmed by the Government as per Exhibit P18. 4. In Exhibit P18, the Government took the view that the school started functioning in 1979 and hence all the existing/arising vacancies should be filled up with protected hands as per G.O.(P) No.178/02/G.Edn. dated 28.06.2002. Government in G.O.(P) No.46/06/G.Edn dated 01.02.2006 have partially exempted the schools (1979-1990) from the provisions of appointment of protected teachers. As per this G.O. at least one protected teacher should be absorbed. This condition has not been fulfilled so far. 5. Learned counsel for the petitioners raised mainly two contentions. It is pointed out that no aided school protected teachers were available in the category of High School Assistants (Hindi) when the petitioners 2 and 3 were appointed in the school. Neither the Educational Officer nor the Deputy Director W.P.(C) No.30247/2008 3 has got a case that they had forwarded the list of protected teachers in the category of High School Assistant (Hindi) to the 1st petitioner. It is also pointed out in ground (d) of the writ petition that in 1980 a protected teacher was appointed in the school and accordingly the language teachers appointed in the school in 1991, 1992, 1993 and 1995 were granted approval. It is also submitted that by way of Exhibit P16, the Manager had made a further submission before the Government stating that one Smt.A.C. Bhanumathi, H.S.A (S.S) retired from the school on 30.06.2007 and no fresh hand has been appointed in the said vacancy. Already a request has been made to the Deputy Director of Education, Malappuram to appoint a protected hand in the said vacancy. It is therefore submitted that the objection taken against the approval of appointments of the petitioners 2 and 3 cannot be sustained as the Manager has already offered to appoint a protected hand in one vacancy. 6. The 3rd respondent has filed a counter affidavit. In paragraph 3 of the counter affidavit it is pointed out as follows: “It is true that the post of H.S.A (Hindi) was not available in the Educational Districts or in the W.P.(C) No.30247/2008 4 Revenue District, at the time of appointing the 2nd and third petitioner. But the 1st petitioner is under obligatory to enquire with Deputy Director of Education about the availability of protected hands. He has not complied this formality. The practice followed by Manager is to apply for allotting protected hands”. The question is therefore whether, the objection raised regarding the approval of appointment of the petitioners 2 and 3 on the ground that a protected teacher has to be appointed in the said vacancy, is correct or not. 7. The said legal position was examined by this Court in the judgments in W.P.(C) Nos.2563 and 8039 of 2008 and also in Anilkumar.R vs. State of Kerala and others (2009 (2) KLJ 402). The obligation of the Manager is under Rule 6(viii) of Chapter V of Kerala Education Rules. According to the said provision, the Manager will have to execute an agreement to the effect that he is prepared to absorb qualified teachers/non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the Education district or aided primary school in W.P.(C) No.30247/2008 5 the Education Sub-district in which the applicant proposes to open/upgrade the school. Even going by the order passed by the Government as mentioned in Exhibit P18, in G.O.(P)No.46/06/ G.Edn dated 01.02.2006 the Government has prescribed that at least one protected teacher should be absorbed in the school. But, to appoint a protected teacher, there should have been a valid list available for the Manager to effect such appointment. 8. Since it is plainly clear from paragraph 3 of the counter affidavit filed by the 3rd respondent that there was no protected teacher available at the time when the petitioners 2 and 3 were appointed in the category of H.S.A (Hindi), there cannot be any objection to the approval of appointments of the said petitioners on that ground. The Manager has also offered to make an appointment of a protected teacher in the vacancy which has arisen on 30.06.2007. That may satisfy the obligation under Rule 6(viii) of Chapter V K.E.R and G.O.(P) No.46/06/G.Edn dated 01.02.2006. This Court is now called upon to decide whether as on the date of appointment of the petitioners 2 and 3, there is any failure on the part of the Manager to satisfy W.P.(C) No.30247/2008 6 Rule 6(viii) of Chapter V K.E.R. In the light of the factual position emerging above, the Manager cannot be faulted. In that view of the matter, the impugned orders namely, Exhibits P1 to P8, P11, P13 culminating in Exhibit P18 are quashed. The petitioners 2 and 3 are therefore entitled for the grant of approval of the respective appointments. There will be a direction to the 4th respondent to pass appropriate orders within a period of six weeks from the date of receipt of a copy of this judgment. It is made clear that the offer made by the Manager to appoint a protected teacher in Exhibit P16 will be complied with by the 1st petitioner. The petitioners 2 and 3 will be entitled for the consequential monetary benefits. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp