IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 8723 of 2009(I) --------------------------------- PETITIONER : -------------------- C.A. AJITH, S/O. ANNALAKUTTY, AGED 26 YEARS, HIGH SCHOOL ASSISTANT (MATHS), A.M HIGH SCHOOL, VENGOOR.P.O, VENGOOR, MALAPPURAM DISTRICT. 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, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM DISTRICT. 5. THE MANAGER, A.M. HIGH SCHOOL, VENGOOR, P.O. VENGOOR, MALAPPURAM DISTRICT. GOVERNMENT PLEADER SMT. NISHA BOSE FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 8723 of 2009(I) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : COPY OF THE G.O.(RT)NO.2464/06/G.EDN. OF GOVT. 17.06.2006 EXT P2 : COPY OF THE G.O.(RT)NO.4949/06/G.EDN. OF GOVT. 15.11.2006 EXT P3 : COPY OF THE G.O.(RT)NO.2870/08/GE OF GOVT. 23.06.2008 EXT P4 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.1667/2008. 15.09.2008 EXT P5 : COPY OF THE REPRESENTATION OF THE PETITIONER. 05.12.2008 EXT P6 : COPY OF THE G.O.(RT)NO.154/09/G.EDN. OF GOVT. 12.01.2009 EXT P7 : COPY OF THE G.O.(P)NO.178/2002/G.EDN. OF -DO- 28.06.2002 EXT P8 : COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN. OF -DO- 24.01.2005 EXT P9 : COPY OF THE G.O.(RT)NO.3776/2006/G.EDN. OF THE GOVT. 24.08.2006 EXT P10 : COPY OF THE ORDER NO.EM6/53385/2007/DPI/K.DIS. OF THE 2ND RESPONDENT. 24.11.2007 EXT P11 : COPY OF THE ORDER NO.EM(6)/109313/04/DPI/K.DIS. OF THE 2ND RESPONDENT. 25.10.2007 EXT P12 : COPY OF THE ORDER NO.EM6/53315/07/DPI/K.DIS. OF THE 2ND RESPONDENT. 12.11.2007 EXT P13 : COPY OF THE ORDER NO.EM6/109311/06/DPI/D.DIS. OF THE 2ND RESPONDENT. 02.05.2007 EXT P14 : COPY OF THE ORDER NO.EM(6)/13136/(8)/08/DPI/K.DIS. OF THE 2ND RESPONDENT. 23.02.2008 EXT P15 : COPY OF THE ORDER NO.F3/67649/2008/K.DIS. OF THE 2ND RESPONDENT. 11.02.2009 EXT P16 : COPY OF THE G.O.(RT)NO.3587/2008/G.EDN. OF THE GOVT. 05.08.2008 EXT P17 : COPY OF THE G.O.(RT)NO.3805/06/G.EDN. OF THE GOVT. 26.08.2006 EXT P18 : COPY OF THE G.O.(RT)NO.975/06/G.EDN. OF -DO- 03.03.2006 EXT P19 : COPY OF THE G.O.(RT)NO.1413/07/G.E. OF -DO- 28.03.2007 DSV/- WP(C).No. 8723 of 2009(I) EXT P20 : COPY OF THE DECISION REPORTED IN 1993 (2) K.L.T. SHORT NOTES PAGE 27 C. NO. 28 02.08.1993 EXT P21 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT W.P.(C) NO.2563/2008 24.09.2008 EXT P22 : COPY OF THE DECISION REPORTED IN 2011 (3) K.L.T.790 04.08.2011 EXT P23 : COPY OF THE JUDGMENT IN W.P.(C)NO.21646 OF 2010-E 20.08.2011 RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A.TO JUDGE DSV- T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.8723/2009-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of November, 2011 J U D G M E N T The petitioner challenges Ext.P6 order to the extent to which approval of appointment of the petitioner from 16/06/2004 is declined. 2. The petitioner was appointed as High School Assistant (Mathematics) in A.M.High School, Vengoor in Malappuram District from 16/06/2004. The appointment is approved from 01/12/2006. Ext.P3 is the order passed by the Government with regard to the plea of the petitioner for approval. A reading of the order shows that initially the approval was declined for the reason that a protected teacher has to be appointed in the vacancy. In Ext.P3 it is mentioned that as per the list of protected teachers issued by the Deputy Director of Education, Malappuram for the year 2006-07, there was only one protected teacher Smt.Sheeba K.I., H.S.A (Mathematics), who was deployed to G.H.S Palappetty in Malappuram Revenue District. Later, she was absorbed in the M.E.S.H.S.S, Irimbiliyam in an W.P.(C). No.8723/2009 -:2:- established vacancy from 01/12/2006, by the order of Deputy Director of Education, Malappuram. Accordingly, appointment of the petitioner is approved from 01/12/2006. 3. Learned counsel for the petitioner submitted that, the approach made by the respondents restricting the approval from 01/12/2006 is not correct as the list of protected teachers was not communicated to the Manager at the time of appointment of the petitioner, namely, on 16/06/2004. Reliance is placed on Ext.P22 and P23 Judgments of this Court holding the view that unless the list of protected teachers is communicated, the Manager cannot be faulted for not appointing a protected hand. 4. Learned Government Pleader, in the light of the averments in the counter affidavit, submitted that even if there was a vacancy as on 15/07/2004, as there was a protected teacher in the category of H.S.A (Maths), namely, Smt.Sheeba K.I, who was later absorbed in M.E.S. H.S.S, Irimbiliyam on 01/12/2006 in an established vacancy, the petitioner is entitled for approval only from 01/12/2006. W.P.(C). No.8723/2009 -:3:- 5. Evidently, the post was sanctioned to the school with effect from 15/07/2004 as per order dated 23/10/2005 of the District Educational Officer, Malappuram. Of course, G.O.(P).No.178/02/G.Edn., dated 28/06/2002 provides for absorption of protected teachers in all the vacancies. But, with regard to the obligation of the Manager to comply with the directions to appoint protected teachers, this Court in Nadeera v. State of Kerala [2011 (3) KLT 790] has held that unless the list of protected teachers is communicated, the Manager cannot be faulted for not appointing the protected hand. In para.10 onwards various Judgments of this Court, holding the same view, have been discussed. This Court, therefore, took the view therein that because of the non communication of the list of protected teachers by the Deputy Director of Education as far as the schoo1 is concerned, the approval of appointment of the teacher who was qualified for appointment cannot be postponed. 6. In para.20, the legal position was explained thus:- “20. It is in that context that the procedure for communicating the list of W.P.(C). No.8723/2009 -:4:- protected teachers forwarded under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose W.P.(C). No.8723/2009 -:5:- due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are entitled to succeed in the Writ Petition.” 7. Ext.P23 is the Judgment of this Court in W.P. (C).No.21646/2010 holding the same view. 8. In that view of the matter, the restriction as far as the approval of appointment of the petitioner from 01/12/2006 only cannot be justified. There is no evidence to show that the details of the protected hands were communicated to the Manager of the schoo1. Hence, the writ petition is allowed. 9. The impugned order Ext.P3 to the extent to which approval is restricted from 01/12/2006 is quashed. There will be a direction to the fourth respondent District Educational Officer to pass fresh orders approving the appointment of the petitioner from 16/06/2004 and granting due monetary benefits to the W.P.(C). No.8723/2009 -:6:- petitioner within a period of three months from the date of receipt of a copy of this Judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms