IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 WP(C).No. 28501 of 2009(G) -------------------------- PETITIONER: --------------- T.S. SINDHU, W/O. C.R. SATHEESH CHANDRAN, RADHALAYAM, PALIYEKKARA, THIRUVALLA (LOWER PRIMARY SCHOOL ASSISTANT, KADALIMANGALAM DEVASWOM LOWER PRIMARY SCHOOL, VENPALA, THIRUVALLA) BY ADV. SRI.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION) PATHANAMTHITTA AT THIRUVALLA. 4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. 5. THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONALOFFICER, THIRUVALLA. 6. THE MANAGER, KADALIMANGALAM DEVASWOM LOWER, PRIMARY SCHOOL, VENPALA, THIRUVALLA. BY GOVERNMENT PLEADER SHRI T.T.MUHAMOOR FOR R1-5 ADV. SRI.JOHN K.JOSEPH(SAJAN) FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.28501/09 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ORDER DT.2.6.03 ISSUED BY THE 6TH RESPONDENT. EXT.P2: TRUE COPY OF APPOINTMENT ORDER DT.2.6.04 ISSUED BY THE 6TH RESPONDENT. EXT.P3: TRUE COPY OF ORDER DT.23.9.1983 ISSUED BY THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF ORDER NO.F3/49052/06/DPI PASSED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF GO(RT)NO.3902/07/G.EDN. DATED 20.8.07. EXT.P6: TRUE COPY OF GO(P)NO.46/06/G.EDN. DT.1.2.06. EXT.P7: TRUE COPY OF JUDGMENT DT.10.2.09 PASSED B THIS COURT IN W.P.(C)No.33868/2007(L). EXT.P8: TRUE COPY OF GO(RT)2365/G.EDN. DATED 15.6.09 PASSED BY THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF RESIGNATION LETTER DT.13.7.09 APPROVED BY THE 5TH RESPONDENT. EXT.P10: TRUE COPY OF LIST DATED 17.6.09 OF PROTECTED TEACERS ISSUED BY THE 3RD RESPONDENT. EXT.P11: TRUE COPY OF APPOINTMENT ORDER DT.11.8.2009 OF THE 6TH RESPONDENT APPOINTING SMT.ANNIE NINAN AS LPSA(PROTECTED) EXT.P12: TRUE COPY OF COMMUNICATION NO.31/09 ISSUED BY THE HM OF THE SCHOOL TO THE 3RD RESPONDENT. EXT.P13: TRUE COPY OF ORDER DT.7.9.09 PASSED BY THE 5TH RESPONDENT. EXT.P14: TRUE COPYOF REVISION PETITION DT.23.9.09 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P15: TRUE COPY OF APPEAL AGAINST EXT.P13 ORDER SUBMITTED BY RESPONDENT NO.6 BEFORE RESPONDENT NO.3. EXT.P16: TRUE COPY OF ORDER DT.5.8.08 ISSUED BY THE 1ST RESPONDENT. EXT.P17: TRUE COPY OF ORDER DATED 24.1.09 ISSUED BY THE 1ST RESPONDENT. EXT.P18: TRUE COPY OF ORDER DT.13.7.09 ISSUED BY THE 1ST RESPONDENT. EXT.P19: TRUE COPY OF GOVT.ORDER BEARING NO.GO(RT)5309/09/G.EDN.DATED 18/12/2009. EXT.P20: TRUE COPY OF GOVERNMENT ORDER BEARING GO(P)NO.259/06/G.EDN. DATED 18.5.07. EXT.P21: TRUE COPY OF CIRCULAR BEARING NO.4545/J2/2007/G.EDN. DATED 18.5.07. EXT.P22: TRUE COPY OF GOVERNMENT ORDER BEARING GO(MS)NO.275/99/G.EDN. DT.9.11.99. EXT.P23: TRUE COPY OF GOVERNMENT ORDER DT.24.1.09. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.28501 Of 2009 ----------------------------------------------------- DATED THIS THE 16th DAY OF MARCH, 2011 J U D G M E N T The petitioner, who is working as LPSA in an aided school managed by the 6th respondent is aggrieved by the denial of approval mainly on the plea that the school is an uneconomic one. 2. The petitioner was appointed in a leave vacancy from 2.6.2003 to 31.3.2004. In the retirement vacancy of one Smt.Kumari Pramila LPSA, the petitioner was shifted. The said order of appointment is produced as Exhibit P2. It is pointed out that the school had absorbed a protected teacher as per Exhibit P3 order dated 23.9.1983. But the approval of appointment was rejected on the ground that the school was a newly opened one and as per the provisions contained in Government Order, G.O.(P) No.178/2002/G.Edn. Dated 28.6.2002, the management of newly opened/ upgraded schools should fill up all existing /arising vacancies in their schools by appointing protected teachers. 3. The appeal filed against the same was rejected and finally the revision filed was also rejected by Exhibit P4. It was under challenge before this Court in W.P.(C)No.30685/06. The revision W.P.(C)No.28501/09 -2- petition was directed to be disposed of by an interim order and the revision was finally disposed of by Exhibit P5 order. It was held that the appointment cannot be approved since the Manager has not appointed a protected teacher. The petitioner, thereafter, filed a fresh Writ Petition as W.P.(C)No.36868/07. The matter was considered later and finally by Exhibit P7 judgment, this Court quashed Exhibit P5 order and directed the Government to reconsider it. This Court directed reconsideration of the matter in the light of Exhibit P6 Government Order. Thereafter, by Exhibit P8 Government Order, a direction was issued to the Deputy Director of Education, Pathanamthitta to approve the appointment of the petitioner on the date the protected teacher joined duty in the school. But the Assistant Educational Officer without forwarding it to the Deputy Director passed Exhibit P13 order wherein 18 objections have been taken for not approving the appointment. 4. The proceedings continued thereafter in appeal and revision and finally by Exhibit P19 order, even though it was found that a protected teacher was appointed on 14.8.2009, the Government took the view that it many not be possible to approve the appointment with effect from 14.8.2009 as the school is an W.P.(C)No.28501/09 -3- uneconomic one. 5. The respondents have filed a counter affidavit. 6. The learned counsel for the petitioner submitted that in the light of Exhibit P21 Government Order clarifying the earlier Government Order regarding appointments in uneconomic schools, the petitioner is entitled to succeed. 7. The Government by Exhibit P20 order dated 12.10.2006 restrained appointments in economic schools. But, later, it was clarified by Exhibit P21 circular. Seven clarifications have been made by the Government in Exhibit P21. Item (2) therein is that in cases where appointments have been made prior to 12.10.2006 and proposals have been made within time, action can be taken for approval based on the legal position that was in existence prior to 12.10.2006. Evidently, therefore, the same applies to the case of the petitioner. 8. Herein, the appointment was made as per Exhibit P2 order dated 2.6.2004. The Government itself had directed by Exhibit P8 order to approve the appointment and had sent back the matter for passing appropriate orders. It is at the second stage, the present objection was raised. W.P.(C)No.28501/09 -4- 9. In the light of Exhibit P21 circular, it can be seen that the objection that the school is an uneconomic one will not apply as far as approval of appointment of the petitioner is concerned. It is declared so. Therefore, Exhibit P19, to the extent to which it is held that the petitioner's appointment cannot be approved as the school is an uneconomic one is quashed. 10. Evidently, a protected teacher was appointed from 14.8.2009. Therefore the directions contained in Exhibit P8 order that the petitioner's appointment could be approved from the date of appointment of a protected teacher can be implemented and if that be so, the petitioner will be eligible for grant of approval from 14.8.2009. The Assistant Educational Officer will pass appropriate orders approving the appointment of the petitioner from 14.8.2009 within a period of six weeks from the date of receipt of a copy of this judgment and the petitioner will be disbursed the monetary benefits also without delay. The Writ Petition is allowed as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn