IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 WP(C).No. 2860 of 2009(M) ------------------------------- PETITIONERS: ---------------- 1. P.K.NARAYANAN, MANAGER,A.N.M.U.P.SCHOOL, GOKHALE NAGAR, MYLAMBADY, WAYANAD-673591. 2. P.R.PRATHAP, S/O.LATE RAGHAVAN, AGED 24 YRS, JUNIOR SANSKRIT TEACHER, A.N.M.U.P.SCHOOL, GOKHALE NAGAR, MYLAMBADY, WAYANAD-673591. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------ 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KALPETTA, WAYANAD DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, WAYANAD DISTRICT. 5. THE ASSISTANT EDUCATIONAL OFFICER, S.BATHERY, WAYANAD DISTRICT. BY SMT. RANI DIOTHMA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2860/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER OF APPOINTMENT OF PETITIONER DTD. 1.6.07. EXT. P2 : COPY OF ORDER No.G/1802/2007/K.DIS. OF Assistant Educational Officer DTD. 4.7.07. EXT. P3 : COPY OF ORDER No.B4/5311/07/L.DIS. OF District Educational Officer DTD. 22.10.07. EXT. P4 : COPY OF ORDER No.G3/9279/08/DPI/K.DIS. OF R2 DTD. 15.5.08. EXT. P5 : COPY OF REVISION PETITION FILED BY MANAGER DTD. 24.9.08. EXT. P6 : COPY OF REVISION PETITION FILED BY 2ND PETITIONER DTD. 15.7.08. EXT. P7 : COPY OF ORDER No.B1/12575/2006 OF Assistant Educational Officer DTD. 7.4.08. EXT. P8 : COPY OF G.O.(RT) No.5566/08/G.EDN. OF GOVT. DTD. 19.12.08. EXT. P9 : COPY OF G.O.(P) No.178/02/G.EDN. OF GOVT. DTD. 28.6.02. EXT. P10 : COPY OF CIRCULAR No.74101/J2/2004/G.EDN. OF GOVT. DTD. 24.1.05. EXT. P11 : COPY OF G.O.(Rt) No.3776/06/G.EDN. OF GOVT. DTD. 24.8.06. EXT. P12 : COPY OF ORDER No.EM6/53385/2007/DPI/K.DIS. OF R2 DTD. 24.11.07. EXT. P13 : COPY OF ORDER No.EM(6)/109313/04/K.DIS. OF R2 DTD. 25.10.07. EXT. P14 : COPY OF ORDER No.EM6/53315/07/DPI/K.DIS. OF R2 DTD. 12.11.07. EXT. P15 : COPY OF ORDER No.EM6/109311/06/DPI/K.DIS. OF R2 DTD. 2.5.07. WP(C).No. 2860/2009 EXT. P16 : COPY OF ORDER No.EM(6)/13136/(8)/08/DPI/K.DIS. OF R2 DTD. 23.2.08. EXT. P17 : COPY OF G.O(Rt) No.3587/2008/G.EDN. OF GOVT. DTD. 5.8.07. EXT. P18 : COPY OF G.O.(Rt) No.3805/06/G.EDN. OF GOVT. DTD. 26.8.06. EXT. P19 : COPY OF JUDGMENT OF THIS COURT IN WPC No.2563/08 DTD. 24.9.08. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.2860 OF 2009 --------------------------------------- Dated this the 13th day of June, 2011. J U D G M E N T The 1st petitioner is the Manager of an aided school and the 2nd petitioner is the Junior Sanskrit Teacher appointed in the school. The only issue is with regard to the right of the 2nd petitioner for approval of appointment from the date of appointment itself. 2. The 2nd petitioner was appointed in the school as Junior Sanskrit Teacher from 01.06.2007 onwards. The appointment was in the vacancy of Sri.C.V.Ramachandran, Junior Sanskrit Teacher who retired from service on 31.05.2007. The approval sought for was declined initially for the reason that the Manager has not appointed a protected teacher. Finally, the Government by Ext.P8 order directed the approval to be effective from 22.09.2008 i.e. the date on which a protected teacher was appointed. Challenging the said order to the extent to which approval is restricted from that date, this writ petition has been W.P.(C) No.2860/2009 2 filed. 3. Learned counsel for the petitioners submitted that in terms of G.O.(P) No.178/2002/G.Edn. dated 28.06.2002, the Deputy Director of Education has not communicated to the Manager the category-wise list of protected teachers. Reliance is placed on Ext.P10 circular also in that context. The Government Order namely, G.O.(P) No.178/2002/G.Edn. dated 28.06.2002 (Ext.P9) was modified by Government Orders dated 01.02.2006 and 24.08.2006 wherein also it is provided that the Educational Officers will include the names of protected teachers to be appointed by the Manager in arising vacancy in the staff fixation order itself. 4. Exts.P12 to P18 are various orders passed by the Director of Public Instruction and the Government whereby the appointments of respective teachers have been approved after getting an undertaking from the Manager to the effect that a protected teacher would be appointed in the next arising vacancy and the petitioners also seek for a similar treatment. 5. Ext.P19 is a judgment of this Court wherein it was held W.P.(C) No.2860/2009 3 that in the absence of communication of category-wise list of protected hands, the non approval of appointment cannot be justified. The petitioners have produced Ext.P7, a reply given by the Public Information Officer of the office of the Deputy Director of Education, Wayanad with regard to the details of protected teachers in Sanskrit. Going by the same, it can be seen that none of the teachers mentioned therein were available for deployment when petitioner was appointed. Apart from mentioning the names of Smt.K.Sarojini and Smt.K.Lalithambika, reference is made to one HSA Sanskrit Teacher of Devi Vilasam Vocational Higher Secondary School and finally it is mentioned that protected teachers are not remaining without deployment. Ext.P7 communication is dated 07.04.2008. 6. The Government in Ext.P8 order while considering the matter relied upon G.O.(P) No.46/06/G.Edn. dated 01.02.2006 and was of the view that the ANM UP school was started during 1982-83 and hence the Manager is liable to appoint a protected teacher in the school and the Manager appointed a protected teacher only with effect from 22.09.2008. W.P.(C) No.2860/2009 4 7. In the counter affidavit filed by the 1st respondent, reliance is placed on the said Government Order and it is pointed out that in the absence of appointment of a protected teacher, the proposal was declined and finally the approval is granted to be effective from the date of appointment of a protected teacher. With regard to Ext.P7, it is stated that there is a deployed protected teacher in Sanskrit in the Government Higher Secondary School. 8. Learned counsel for the petitioners pointed out that HSA Sanskrit Teacher may not be available for deployment as the post is in the U.P. School. Apart from that one of the aspects that is to be considered is regarding the non observance of the directions in Ext.P9 as well as the subsequent Government Orders by the departmental officers. The very same issue was considered in Ext.P19 judgment wherein this Court was of the view that the Manager cannot be faulted when there is a failure on the part of the Educational Officers in furnishing the list as required in G.O.(P) No.178/2002/G.Edn. Dated 28.06.2002. I respectfully agree with the same. Apart from that, a reading of W.P.(C) No.2860/2009 5 Exts.P12 to P18 orders will show that in all those cases approval of appointments has been granted on condition that the Manager will appoint a protected teacher later. In Ext.P12, the appointment is of a Physical Education Teacher. In Ext.P13 also, the appointment is directed to be approved from the date of appointment itself. The Government also, in Ext.P17 order, after referring to G.O.(P)No.46/06/G.Edn. dated 01.02.2006, directed approval of the teacher from 01.06.2005 itself on the plea that the Manager appointed a protected teacher. The scenario therefore evidences the fact that a protected teacher was not available herein even though it is contended that one teacher was available. Evidently, the list of protected teachers was not communicated to the Manager. 9. In that view of the matter, as held by this Court in Ext.P19 judgment, the Manager cannot be faulted for not appointing a protected teacher. Herein, the obligation of the Manager has already been fulfilled by appointing a protected teacher. In that view of the matter also, as the 2nd petitioner was appointed from the date of occurrence of vacancy which is a W.P.(C) No.2860/2009 6 permanent vacancy and has been working in the school, there is no legal basis for denying approval of appointment from the date of appointment itself. Statutorily, the approval of appointment cannot be postponed to a different date when the vacancy actually exists especially in the light of Rules 7 and 8 of Chapter XIV A KER and Rule 12B of Chapter XXIII KER. In that view of the matter also, Ext.P8 order cannot be supported. Therefore, this writ petition is allowed. Ext.P8 to the extent to which approval of appointment is restricted from 22.09.2008 is quashed. It is declared that the 2nd petitioner is entitled for grant of approval based on Ext.P1 from 01.06.2007 and there will be a direction to the 5th respondent to approve the appointment as such and issue the order within a period of two months from the date of receipt of a copy of this judgment. Consequential monetary benefits also will be disbursed to the 2nd petitioner. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp