IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 OP.No. 36552 of 2002(B) ------------------------------------ PETITIONER(S): ------------------------- T.P. VINODAN, S/O. I.P. RAHAKRISHNAN, L.P. SCHOOL ASSISTANT, H.A.U.P. SCHOOL, AKKARA, ALATHUR TALUK, PALAKKAD DISTRICT, RESIDING AT AZHAKATH PIZHAROM, COYALMANNAM POST, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. MR.SAJAN VARGHEESE K. MR.JEBY JACOB RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (J) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ASST. EDUCATIONAL OFFICER, ALATHUR, PALAKKAD DIST. 4. THE MANAGER, HAUP SCHOOL, AKKARA, ALATHUR TALUK, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER SMT.T.B.RAMANY FOR R1 TO R3 SRI.LEGY ABRAHAM FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.61852/02, 15356/03 IN OP. NO.36552/2002 DISMISSED 27/05/2009 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DT. 22.10.98 TO THE PETITIONER. P2:- COPY OF THE APPOINTMENT ORDER DT. 24.10.2000 OF DO. DO. P3:- COPY OF THE APPOINTMENT ORDER DT. 2.1.01 OF DO. P4:- COPY OF THE APPOINTMENT ORDER DT. 6.6.01 OF DO. DO. P5:- COPY OF THE GO(P) NO.178/02/G.EDN. DT. 28.6.02 OF GENERAL EDUCATION (J) DEPARTMENT. P6:- COPY OF THE ORDER NO.3023/02/K.DIS DT. 2.9.02 OF THE ASST. EDN. OFFICER, ALATHUR. P7:- COPY OF THE ORDER GO(MS) 123/91/G.EDN. DT. 5.8.91. P8:- COPY OF THE ORDER DT. 11.7.02 IN CMP. 32621/02 IN OP. 19178/02 OF THIS HONOURABLE COURT. P9:- COPY OF THE REQUEST DT. 13.12.02 SUBMITTED TO THE RESPONDENT NO.3. P10:- COPY OF THE PETITION DT. 13.12.02 SUBMITTED BY THE MANAGER. P11:- COPY OF THE PROFORMA DT. 13.12.02 . I.A. NO.1895/2009 P9:- COPY OF THE APPOINTMENT ORDER DT. 31.7.02 APPOINTING THE PETITIONER IN H.A.U.P.S. AKKARA, AS L.P. SCHOOL ASSISTANT. P10:- COPY OF THE G.O.(P) NO.73/06/G.EDN DT. 18.2.06. P11:- COPY OF THE COMMUNICATION DT. 24.4.06 (NO.47047/B3/04/G.EDN. MADE BY THE RESPONDENT NO.2 TO THE DIRECTOR OF PUBLIC INSTRUCTION. TRUE COPY P.A. TO JUDGE TSS T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.36552/2002-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of May, 2009 J U D G M E N T Aggrieved by Ext.P6 order passed by the Assistant Educational Officer by which the approval of appointment of the petitioner was rejected, this original petition is filed. 2. The petitioner was appointed as U.P.S.A under the fourth respondent Manager for the period from 22/10/1998 to 22/12/1998 which was approved by Ext.P1 order. Again he was appointed as L.P.S.A for the period from 24/10/2000 to 22/12/2000 which was approved by Ext.P2. Ext.P3 is the order by which the petitioner's appointment as L.P.S.A for the period from 02/01/2001 to 07/03/2001 was approved by the third respondent. Ext.P4 is the order by which his appointment for the period from 06/06/2001 to 18/10/2001 as U.P.S.A was approved by the third respondent. 3. In the light of the above orders, the petitioner is a 51-A claimant as per Chapter XIV-A of the Kerala Education Rules. The present dispute is relating to the approval of appointment of the petitioner as L.P.S.A with effect from 31/07/2002. The vacancy arose due to the O.P.No.36552/2002 -:2:- retirement of one T.K.Lalithambal. The approval of appointment is rejected in the light of Ext.P5 order passed by the Government. 4. In paragraph (1) of Ext.P5, it is provided that the Management of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. That was relied upon by the Assistant Educational Officer to reject the approval of appointment of the petitioner. The Government in paragraph (3) of Ext.P7 has clarified that the vacancy caused by the relief of protected teacher to his parent school will continue to be filled up by protected teacher only, provided there is no rule 43/51-A claimant. In the light of the above, the rejection of the approval of the petitioner cannot be sustained, contends the learned counsel for the petitioner. 5. Along with I.A.No.1895/2009 petitioner has produced Ext.P10 a copy of the Government Order, G.O.(P).No.73/2006/Gl.Edn., dated 18/02/2006, wherein the Government has clarified the term 'New School'. Paragraph Nos. (3) & (4) of the above Government Order are relevant here which is extracted below:- “3. Now it has come to the notice of Government that though a school upgraded from 5/79 comes under the O.P.No.36552/2002 -:3:- category of 'New School', the section of the school which commenced functioning before 5/1979 is also being treated as 'new school' by the Educational authorities. As a result, when an appointment is made in the pre- upgraded section of the school, the stipulation regarding appointment of protected teacher is being insisted upon. This has been causing difficulties in school administration. 4. The matter has been examined in detail. Government are pleased to order that the stipulation regarding appointment of protected hands in the Govt.Order read above will not be insisted on in the pre- upgraded sections of the 'New School'.” 6. In the light of the above Government Order, the Lower Primary Section of the School which was functioning before 1979 cannot be treated as a new school also. Ext.P11 is a copy of the Government letter dated 24/04/2006 whereby in a similar case the Government directed that as the incumbent is a Rule 51A claimant it can be approved without insisting on the conditions of absorbing a protected teacher as laid down in G.O.(P) O.P.No.36552/2002 -:4:- No.178/2002/Gl.Edn., dated 28/06/2002 (Ext.P5). Therefore, obviously, the objection raised against the approval of the appointment of the petitioner cannot be sustained. The benefit granted under Rule 51A being statutory in nature, it cannot be whittled down by any executive order passed by the Government. The Government itself had clarified by Ext.P7 that the direction to fill up further vacancy by a protected teacher can apply provided there are no rule 43 and 51A claimant. In that view of the matter also, the order Ext.P6 cannot be sustained. 7. Therefore, the original petition is allowed. The appointment of the petitioner who is a Rule 51A claimant is liable to be approved. The third respondent will pass appropriate orders within a period of two months from the date of receipt of the copy of this judgment and in the light of the findings rendered above. No costs. (T.R. Ramachandran Nair, Judge.) ms