IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 11871 of 2011(H) ---------------------------------------- PETITIONER(S): ------------------------ SARITHA V., SREEVATSAM, KIZHAKKNELA P.O. PARIPPALLY, KOLLAM. BY ADV. SRI.P.N.MOHANAN SRI.K.N.AJAYAN SMT.I.VINAYAKUMARI RESPONDENT(S): ---------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM, PIN-695 001. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN-695 001. 3. DEPUTY DIRECTOR (EDUCATION), THIRUVANANTHAPURAM, PIN-695 001. 4. DISTRICT EDUCATIONAL OFFICER, ATTINGAL, PIN-695 101. 5. THE ASSISTANT EDUCATIONAL OFFICER, VARKALA, PIN-695 141. 6. MANAGER, M.V.L.P.SCHOOL, MANTHARA, EDAVA P.O., VARKALA, PIN-695 141. R1 TO R5 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.11871/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPOINTMENT ORDER DATED 28/7/06. P2 COPY OF THE DETAILS FURNISHED BY THE HEADMISTRESS UNDER THE RIGHT TO INFORMATION ACT. P3 COPY OF THE ORDER DATED 16/8/06 OF THE 5TH RESPONDENT. P4 COPY OF THE PETITION DATED 13/1/07. P5 COPY OF THE ORDER DATED 22/12/2006 OF THE DISTRICT EDUCATIONAL OFFICER. P6 COPY OF THE JUDGMENT DATED 11/2/09 IN WP(C)NO.4407/09. P7 COPY OF THE REVISION FILED BY THE MANAGER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION. P8 COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 29/9/09. P9 COPY OF THE ORDER DATED 26/8/2010 OF THE GOVERNMENT. P10 COPY OF THE G.O. DATED 28/6/02. P11 COPY OF THE CIRCULAR DATED 24/1/05. P12 COPY OF THE JUDGMENT DATED 16/3/11 IN WP(C)NO.8553/09. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 11871 of 2011-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2011. JUDGMENT The petitioner was appointed as per Ext.P1 order, as LPSA in the school managed by the 6th respondent, in the vacancy of one Smt. Jalaja B.T. who was promoted as Headmistress with effect from 1.6.2006. The approval of the same was rejected for the reason that as per the stipulations contained in G.O.(P) No.46/06/G.Edn. dated 1.2.2006 the Manager should appoint one protected teacher in the school. 2. The petitioner relies upon Ext.P4 which is an undertaking given by the Manager that he is prepared to appoint a protected teacher. But since the same was not considered, the Manager filed an appeal before the fourth respondent. Ext.P5 is the copy of the order passed by the fourth respondent in appeal. Finally, the same has been confirmed by Ext.P8, by the Director of Public Instruction and again a revision was filed before the Government and the Government passed Ext.P9 order. In Ext.P9 the view taken is that when the petitioner was appointed, no protected teacher was working in the school. 3. Learned counsel for the petitioner submitted that the issue is wpc 11871/2011 2 covered in favour of the petitioner, in the light of Ext.P12 judgment of this Court in W.P.(C) No.8563/2009, in respect of the very same school. Therein, the petitioner was appointed from 22.7.2004. On similar grounds the approval was rejected by various authorities. 4. Learned Government Pleader submitted that the objection taken by the department is that the protected hands were not there in the school, at the time of the appointment of the petitioner. Learned counsel for the petitioner submitted that as no list of protected teachers was communicated, it is evident that protected hands were not available for deployment by the department to such schools, as on the date of appointment of the petitioner. 5. This Court, in Ext.P12 judgment, in para 6 considered the very same issue as to whether the list of protected teachers has to be communicated to the Manager and reference was made to an earlier judgment of this Court in W.P.(C) No.36776/2007. Thereafter, in para 7 it was held thus: “Herein also, the position is same. The list was circulated only in 2007. In that view of the matter, it cannot be said that the Manager had failed in his duty to appoint a protected hand. As far as the school is concerned, the Manager had appointed a protected hand in the year 1979 and she continued in service till retirement in 1993. Against the vacancy caused by the retirement of the protected wpc 11871/2011 3 teacher, Manager appointed Smt. Jayasree as L.P.S.A. The said appointment was approved by the Department as evident from paragraph (7) of the counter affidavit filed by the second respondent. In that view of the matter also, the rejection of the approval of the petitioner's appointment cannot be justified. But the Manager has an obligation to appoint a protected teacher as the personnel appointed in 1979 retired from service in a future vacancy.” Evidently, therefore, the list of protected teachers was communicated only in 2007. Herein, the petitioner was appointed from 28.7.2006. In that view of the matter, I am satisfied that the petitioner is also entitled for the benefit of Ext.P12 judgment. The details of protected teachers, who were appointed on earlier occasions in the school are available from the averments of the petitioner in para 2 of the writ petition. 6. Therefore, the writ petition is allowed. Exts.P3, P5, P8 and P9 are quashed. The petitioner continued in the school only upto 15.7.2009 since there was a division fall. In that view of the matter, appropriate orders will be passed with regard to the claim for approval for the period from 28.7.2006 to 15.7.2009, after hearing the petitioner and the Manager, within a period of two months from the date of receipt of a copy of this judgment. The order as above, will be passed by the fifth respondent, in the light of the findings rendered above that the approval cannot be declined on the plea wpc 11871/2011 4 that the protected teacher was not appointed as on the date of appointment of the petitioner. The petitioner will be granted the monetary benefits also. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/