IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 OP.No. 650 of 2003(B) -------------------------------- PETITIONER(S): ------------------------ MANAGER, MAMBARAM HIGHER SECONDARY SCHOOL, P.O. MAMBARAM, KANNUR DISTRICT. BY ADV. MR.P.M.PAREETH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT EDUCATIONAL OFFICER, THALASSERY. 3. K.P.BINDU, NARAYANALAYAM, P.O. ANCHARAKANDY, KANNUR DIST. 4. RADHAKRISHNAN S.K., H.S.A.(MALAYALAM),MAMBARAM HIGHER SECONDARY SCHOOL P.O. MAMBARAM, KANNUR DISTRICT. R1 & R2 BY GOVT. PLEADER MR.DILIP MOHAN R3 BY ADVS. MR.M.P.ASHOK KUMAR R4 BY MR.KALEESWARAM RAJ THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/11/2009, ALONG WITH OP NO. 13816 OF 2003 THE COURT ON 09/12/2009 DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1050/2003 IN OP. NO.650/2003 DISMISSED 09/12/2009 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.B1/9536/2000/K.DIS DTD. 10.10.2000. P2:- COPY OF THE SUBMISSION FROM THE 3RD RESPONDENT DT. 24.10.2000. P3:- COPY OF THE MEMO DTD. 24.10.2000 TO THE 3RD RESPONDENT. P4:- COPY OF THE ORDER DTD. 21.5.01 OF THE ADDL. DIRECTOR OF PUBLIC INSTRUCTION (ACADEMIC), DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. P5:- COPY OF THE COMMON JUDGMENT DTD. 10.4.02 IN OP. NO.2528/01 AND 35386/00 OF THIS HONOURABLE COURT. P6:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE PETITIONER APPOINTING THE 4TH RESPONDENT DTD. 5.6.02. P7:- COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.3617/02/CE DTD. 19.10.02. P8:- COPY OF THE LAST PAGE OF ATTENDANCE REGISTER FOR OCT. 2000. P9:- COPY OF THE INTERIM ORDER IN CMP. 63035/02 IN OP. 37342/02 DTD. 11.12.02. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P. Nos.650/2003-B &13816/2003-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009. JUDGMENT O.P. No.650/2003 is filed by the Manager challenging Ext.P7 order passed by the Government. In O.P. No.13816/2003, the challenge is made against Ext.P4 order passed by the District Educational Officer declining approval of appointment of the petitioner therein. Since the disposal of O.P.No.13816/2003 will have a bearing on O.P. No.650/2003 filed by the Manager, the facts therein, appropriate for deciding the two cases, are the following: 2. The petitioner in O.P.No.13816/2003 was appointed as H.S.A. Malayalam in Mambram Higher Secondary School on 24.8.2000, of which the petitioner in the other writ petition is the Manager. The appointment was made in the promotion vacancy of Smt. Baby Sulekha H.S.A. She was promoted as Higher Secondary School Teacher (Malayalam) with effect from 16.8.2000. 3. The approval of the appointment was rejected by the Educational Officers and the petitioner filed a revision before the Government and by Ext.P1 judgment this Court directed the Government to take a decision in OP 650/03 & 13816/03 2 the matter. By Ext.P2 order, the Government accorded sanction to approve the appointment with effect from 24.8.2000, if there was no protected hand at the time of her appointment. Another appointee Shri S.K. Radhakrishnan filed O.P. No.37342/2002 challenging the same. In the meanwhile, the District Educational Officer, as per Ext.P4 order, declined the approval of appointment on the ground that a protected teacher, viz. Smt. C.P. Reena, H.S.A. (Malaylam) was available in the district and therefore the petitioner has no right to get the approval. In O.P. No. 13816/2003, the petitioner is seeking implementation of Ext.P2 order passed by the Government and to quash Ext.P4 order passed by the District Educational Officer. 4. In O.P. No.650/2003 the Manager is challenging the validity of Ext.P7 order which is sought to be implemented in O.P. No.13816/2003. 5. Heard Shri P.M. Pareed and Shri M.P. Ashok Kumar, learned counsel for the petitioners in these Original Petitions and the learned Govt. Pleader Shri Dilip Mohan for official respondents. 6. Learned counsel for the petitioner in O.P.No.13816/2003 submitted that the order Ext.P4 passed by the District Educational Officer declining approval is not correct. Therein, two reasons have been stated and the main one is that Smt. C.P. Reena, H.S.A. Malayalam was available in OP 650/03 & 13816/03 3 the District as protected Teacher. The second reason stated is that the order passed by the Government is stayed by this Court in O.P. No.650/2003. 7. With regard to the availability of protected hands, learned counsel for the appointee submitted that as on the date of appointment of the petitioner, no protected hand was available and therefore the said reason cannot be sustained. Reliance is placed on para 5 of the counter affidavit filed by the first respondent itself. In para 5 it is stated as follows: “Smt. Reena was protected w.e.f. 15.7.97 and first deployed to GHSS, Vengad to P.G.M.P.H.S., Cheruvancherry w.e.f. 22.2.1999. She was posted back in parent school (Panoor High School, now PRMHSS, Panoor) on 25.11.02 and on the same day she was again redeployed in GHSS, Vellur. Again posted back in PRMHSS, Panoor w.e.f. 24.1.2003. Now she is working as BRC Trainer w.e.f. 27.6.2003. 8. Learned counsel for the petitioner submitted that since the petitioner was appointed in the vacancy which arose on 24.8.2000, as on that day Smt. Reena was already deployed to another high school, viz. P.G.M. P.H.S., Cheruvancherry and she was posted back in the parent school on 25.11.2002. It is therefore submitted that since she was absorbed in another aided school as on the date of appointment of the petitioner, the reason stated by the District Educational Officer cannot be said to be OP 650/03 & 13816/03 4 correct. It is submitted that it is not the date of order passed by the District Educational Officer that is material, but it is the date on which the appointment of the petitioner was made. I find force in the above submission made by the learned counsel for the petitioner in O.P.No.13816/2003. 9. It is clear from the averments in the counter affidavit itself that Smt. C.P. Reena was redeployed from GHSS, Vengad to PGMPHS, Cheruvancherry with effect from 22.2.1999. True that she was redeployed to the parent school on 25.11.2002, but herein the crucial date is 24.8.2000 and as on that date she was already absorbed in PGMPHS, Cheruvancherry, that too with effect from 22.2.1999. Thus, it is clear that she was not available for appointment in the school herein, in the place of the petitioner The subsequent developments in the case of the said teacher also shows that she was posted back to the parent school on 25.11.2002 and on the same day she was again redeployed to GHSS, Vellur. On 24.1.2003 she was posted back to PRMHSS, Panoor and now she is working as BRC Trainer with effect from 27.6.2003. She is arrayed as the 4th respondent in O.P. No.13816/2003 and has not chosen to resist the claim of the petitioner herein. As evidently she was working in an aided school on 24.8.2000, the OP 650/03 & 13816/03 5 reason shown by the District Educational Officer that the petitioner's appointment cannot be approved, cannot be accepted. In that view of the matter, Ext.P4 in O.P. No.13816/2003 cannot be sustained. In fact, the Government itself in Ext.P2 order, had granted sanction to approve the appointment of the petitioner. The approval of Shri Radhakrishnan has also been granted, evidently, going by Ext.P3 judgment. In that view of the matter also, the petitioner's appointment is liable to be approved. 10. Then, the further aspect to be considered is whether the objection raised by the Manager in O.P.No.650/2003 for approving the appointment of the petitioner in O.P.No.13816/2003 is sustainable. It is also stated at the Bar that O.P.No.37342/2002 filed by Shri S.K. Radhakrishnan, has already been dismissed as infructuous. The case of the Manager is that the third respondent (petitioner in O.P. No.13816/2003), even though was appointed as H.S.A. (Malayalam) on 24.8.2000, after the District Educational Officer declined to grant approval, she requested the Manger on 24.10.2000 to return all her original certificates to appear for an interview. She left the school thereafter. Accordingly, the Manager informed the District Educational Officer that he is withdrawing the proposal for approval of appointment of the third respondent and the said OP 650/03 & 13816/03 6 memo has been produced as Ext.P3. It is also averred that the 4th respondent was appointed as H.S.A. Malayalam on 5.6.2002 as per Ext.P6. The Manager is also relying upon the interim order passed in O.P. No.37342/2002, in the Original Petition. 11. A counter affidavit has been filed by respondents 1 and 3. In the counter affidavit filed by the third respondent, the allegation that she is not working in the school, has been denied. It is also averred that the Manager had no case before the Government relying upon Ext.P3 memo and the same is a cooked up one. Merely because she had collected the original certificates it cannot be said that she left the school on 17.10.2000. 12. The averments of the first respondent in the counter affidavit throws light into the objection raised by the Manager now. In para 9 it is averred that “Ext.P2 reveals that the third respondent requested the principal only for her original certificates for participating in an interview and her intention to discontinue the service has not been furnished anywhere in Ext.P2. The third respondent is claiming for the post as per the existing law.” 13. Therefore, it is clear that the plea raised by the Manager is clearly an afterthought. Before the Government also, he had no such plea and after OP 650/03 & 13816/03 7 considering various aspects the Government has passed a valid order. Therefore, no reliance can be placed on the plea raised by the Manager in the writ petition. 14. Therefore, O.P.No.13816/2003 is allowed quashing Ext.P4. There will be a direction to the District Educational Officer to approve the appointment of the petitioner therein, in terms of Ext.P2 order passed by the Government. O.P. No.650/2003 is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 650/03 & 13816/03 8 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. Nos.650/2003-B & 13816/2003-T - -- - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th day of December, 2009.