IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 12142 of 2009(K) PETITIONER: --------------- LETHA BHAI.K, W/O.S.V. UNNIKRISHNAN, KUNIYIL HOUSE, CHELIYA.P.O, KOYILANDY, KOZHIKODE DISTRICT. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, KOYILANDY, KOZHIKODE DISTRICT. 3. THE MANAGER, K.K. KIDAVU MEMORIAL U.P SCHOOL, CHELIYA, KOYILANDY, KOZHIKODE DISTRICT. R3 BY ADV. SRI.MAHESH V RAMAKRISHNAN R1 & R2 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DATED 5.6.2002. EXT.P2 TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT BEARING NO.3426/2002 DATED 24.12.2002. EXT.P3 TRUE COPY OF THE ORDER NO.B6/3600/2003 DATED 8.1.2004 PASSED BY THE DISTRICT EDUCATIONAL OFFICER. EXT.P4 TRUE COPY OF THE APPEAL NO.10/04 DATED 15.8.2004 FILED BY THE THIRD RESPONDENT BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS. EXT.P5 TRUE COPY OF THE JUDGMENT DATED 30.3.2005 IN W.P.(C)NO.10552 OF 2005 OF THIS COURT. EXT.P6 TRUE COPY OF G.O.(P)NO.169/2004/G.EDN. DATED 15.6.2004. EXT.P7 TRUE COPY OF THE CIRCULAR NO.65111/J2/2004/G.EDN. DATED 21.12.2004. EXT.P8 TRUE COPY OF THE ORDER NO.G3/29663/05/DPI/K.DIS. DATED 30.5.2005. EXT.P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR EDUCATION. EXT.P10 TRUE COPY OF G.O.(P)NO.178/2002/G.EDN. DATED 28.6.2002. EXT.P11 TRUE COPY OF THE ORDER NO.37919/D1/06/G.EDN. DATED 7.3.2008. EXT.P11(a) TRUE COPY OF THE PROCEEDINGS NO.L.DIS.C-2426/2008 DATED 22.5.2008 ISSUED BY THE SECOND RESPONDENT. EXT.P12 TRUE COPY OF THE ORDER NO.L.DIS.C-2846/2008 DATED 24.3.2009 PASSED BY THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R3(a) TRUE COPY OF THE ORDER OF APPOINTMENT DATED 26.7.2005 OF SMT.REMYA.P.M. EXT.R3(b) TRUE COPY OF THE ORDER OF APPOINTMENT DATED 23.1.2006 OF SMT.BASHITHA.M.D. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 12142 OF 2009 ------------------------------------------------------ Dated this the 14th day of June, 2010 JUDGMENT The petitioner was appointed as Upper Primary School Assistant in a leave vacancy which arose in K.K.Kidavu Memorial U.P.School, Cheliya, Koyilandy, for the period from 5.6.2002 to 18.10.2002. The leave vacancy was a maternity leave vacancy of one Praseetha Kumari, who was working as LPSA in the School. Ext.P1 appointment order of the petitioner indicates that she was appointed as “leave substitute”. The Assistant Educational Officer, as per Ext.P2 order dated 24.12.2002, rejected the proposal for approval of the appointment of the petitioner on three grounds; namely, (1) a protected teacher was not appointed in the School as directed in G.O.(P)No.178/02 dated 28.6.2002; (2) there are excess B.Ed. Degree holders as teachers in the School; and (3) the petitioner had acquired B.Ed.Degree from Mangalore University. The Manager challenged Ext.P2 order in appeal before the District Educational Officer. The appeal was dismissed by the District Educational Officer as per Ext.P3 order dated 8.1.2004. Apart from other reasons, the District Educational Officer also held that the W.P.(C) NO.12142 OF 2009 :: 2 :: appeal was belated. The Manager challenged Ext.P3 order in revision before the Director of Public Instructions. The petitioner filed W.P.(C) No.10552 of 2005 before this Court praying for a direction to the Director of Public Instructions to dispose of the revision expeditiously. As per Ext.P5 judgment dated 30.3.2005, this Court directed the Director of Public Instructions to consider and dispose of the revision within two months in the light of Ext.P6 order and Ext.P7 circular, respectively dated 15.6.2004 and 21.12.2004. (Exts.P6 and P7 referred to in Ext.P5 judgment are Exts.P6 and P7 in this Writ Petition as well.) 2. The Director of Public Instructions passed Ext.P8 order dated 30.5.2005 confirming the orders passed by the Assistant Educational Officer and the District Educational Officer. The petitioner filed Ext.P9 revision before the Government, which was disposed of as per Ext.P11 order dated 7.3.2008. Ext.P11 order reads as follows: “I am to invite your attention, to the reference cited and to request you to take necessary steps for approving the appointment of Smt.Lathabhai.K as UPSA from 5.6.2002 to 18.10.2002 in K.K.Kidave Memorial UPS if it is otherwise in order.” W.P.(C) NO.12142 OF 2009 :: 3 :: 3. The Assistant Educational Officer passed Ext.P12 order No.L.Dis.C.2846/2008 dated 24.3.2008 (the date may be mistakenly shown, as the reference in Ext.P12 includes the proposal made by the Manager in June 2008 and the direction issued by the Director of Public Instructions on 9.5.2008), after receipt of Ext.P11 order, again rejecting the proposal for approval. One additional reason stated for rejection of approval is that the vacancy of Praseetha Kumari was that of LPSA and, therefore, the petitioner could not be appointed in that leave vacancy as UPSA. The petitioner was not having the necessary qualifications to be appointed as LPSA as she had not acquired TTC though she had acquired B.Ed. Degree. 4. The learned counsel for the petitioner submitted that the Assistant Educational Officer was not justified in finding out another reason which was not mentioned in Ext.P2 order dated 24.12.2002, in order to reject the proposal for approval. The counsel also submitted that the Government having directed, as per Ext.P11 order dated 7.3.2008, to approve the appointment of the petitioner, there was no justification for the Assistant Educational Officer to reject the proposal for approval of the appointment of the petitioner. The W.P.(C) NO.12142 OF 2009 :: 4 :: learned Government Pleader submitted that Ext.P11 order indicates that approval need be made if the appointment was otherwise in order. The Assistant Educational Officer has stated a cogent reason for rejection of the proposal for approval. The learned Government Pleader also submitted that the petitioner has an effective alternative remedy of an appeal to the District Educational Officer challenging Ext.P12 order passed by the Assistant Educational Officer. 5. The learned counsel for the petitioner submitted that if at this point of time the petitioner is driven to file an appeal before the District Educational Officer, it would be highly belated and the appeal would be rejected on that ground. 6. In the facts and circumstances of the case, I do not think it is proper to entertain the Writ Petition, as the petitioner has an effective alternative remedy under Rule 8 of Chapter XIVA of the Kerala Education Rules. If the petitioner files an appeal before the District Educational Officer within three weeks from today, the District Educational Officer shall treat the appeal as having been filed within time and shall dispose of the same on the merits as expeditiously as possible, after affording an opportunity of being heard to the W.P.(C) NO.12142 OF 2009 :: 5 :: petitioner, the Manager and any other affected party. The petitioner shall also produce a copy of the Writ Petition (with Exhibits), copy of the counter affidavits filed by respondents 2 and 3 (with Exhibits) and copy of the reply affidavit, along with the Appeal. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/