IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 11118 of 2008(W) --------------------------------------- PETITIONER: ------------------- DILEEP.P, PHYSICAL EDUCATION TEACHER, M E S HIGHER SECONDARY SCHOOL, IRIMPLIUM, MALAPPURAM DISTRICT. BY ADVS. SRI.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR. 5. THE MANAGER, M E S HIGHER SECONDARY SCHOOL, IRIMPLIUM, MALAPURAM DISTRICT. R1 TO R4 BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2010, THE COURT ON 05/01/2011 DELIVERED THE FOLLOWING: W.P.(C). NO.11118/2008-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 03/06/2005 ISSUED BY THE R.5. EXT.P.2: COPY OF THE ORDER NO. B5/8358/2005/K. DIS. DTD. 07/11/2005 ISSUED BY THE R.4. EXT.P.3: COPY OF THE ORDER NO.K.DIS.B/4/38297/2006 DTD. 25/02/2006 ISSUED BY THE R.3. EXT.P.4: COPY OF THE PROCEEDINGS NO.E.M.4/23594/06 DPI DTD. 26/06/2006 ISSUED BY THE R.2. EXT.P.5: COPY OF THE JUDGMENT DTD. 04/08/2006 IN W.P.(C).NO.20701/2006 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE G.O.(RT).NO.682/2007/GEN. EDN. DTD. 14/02/2007. EXT.P.7: COPY OF THE G.O.(P).NO.178/02/G. EDN. DTD. 28/06/2002. EXT.P.8: COPY OF THE G.O.(RT).NO.3776/06/G. EDN. DTD. 24/08/2006. EXT.P.9: COPY OF THE G.O.(RT).NO.1413/07/G. EDN. DTD. 28/03/2007. EXT.P.10: COPY OF THE G.O.(P).NO.8022/E1/05/EDN. DTD. 07/05/2005. EXT.P.11: COPY OF THE APPOINTMENT ORDER WITH APPROVAL OF VINAYAN.K. DTD. 05/06/2002. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.11118/2008-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of January, 2011 J U D G M E N T The petitioner is seeking to quash Ext.P6 order in so far as it denies approval of appointment of the petitioner as Physical Education Teacher with effect from 03/06/2005. 2. He was appointed as per Ext.P1 order of appointment. The approval was declined by the District Educational Officer for the reason that the appointment ought to have been made by providing a protected teacher. The order was confirmed in appeal by the third respondent. The Manager took up the matter in further appeal before the Director of Public Instruction whereby, Ext.P4 order was passed confirming the orders passed by the authorities below. Finally, the Government passed Ext.P6 order in the revision petition filed by the Manager. Therein, approval has been granted with effect from 01/12/2006. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner Shri Mohanakannan submitted W.P.(C). No.11118/2008 -:2:- that the reasons stated by the Government in Ext.P6 order to restrict the approval with effect from 01/12/2006 are not correct. It is pointed out that no protected teachers in the category of Physical Education Teachers were available for deployment, as evident from Ext.P6 order itself. It is further pointed out that the Government Orders issued from time to time require the departmental officers to communicate the list of protected teachers to Managers which was not followed herein. Evidently, therefore, the contention is that no protected teachers were available for appointment and, therefore, the approval ought to have been granted from 03/06/2005. 4. The petitioner is also relying upon Exts.P9 and P10 orders passed by the Government with respect to teachers of the same school whereby appointments have been approved from the date of their initial appointment, on the ground that no protected hands were available for deployment. It is submitted that the same reasoning will apply to the case of the petitioner. W.P.(C). No.11118/2008 -:3:- 5. The learned Government Pleader supported the order Ext.P6 by submitting that it is newly opened school and, therefore, the Government Orders issued from time to time require appointment of a protected hand and, herein, the Manager appointed a protected teacher with effect from 01/12/2006 and, therefore, only from that date alone, the approval of the petitioner could have been granted. 6. The sole question is whether the protected Physical Education Teachers were available at the time of appointment of the petitioner. A reading of Ext.P6 order itself reveals the following aspects:- The petitioner was appointed with effect from 03/06/2005 and the staff fixation order was finalised whereby a new post of Physical Education Teacher was sanctioned with effect from 15/07/2005. In paragraph (6) of the order it is mentioned that “even though there were 18 protected Physical Education Teachers at the time of the appointment of the petitioner teacher, all the above teachers were retained in their parent schools, and hence no protected Physical Education W.P.(C). No.11118/2008 -:4:- Teachers were available for deployment”. In the light of the above finding, it can be safely inferred that the Manager cannot be faulted for not appointing a protected hand in the vacancy of the Physical Education Teacher, as no protected Physical Education Teachers were available for deployment. 7. In the counter affidavit also in paragraph (2) it is mentioned similarly that 18 protected Physical Education Teachers were retained in their parent schools, and hence no protected Physical Education Teachers were available for deployment. But what is mentioned in paragraph (3) of the counter affidavit is that the Manager has not requested or asked for the list from the third respondent before making appointments. Merely because a list of protected teachers were available that cannot automatically lead to the inference that they were available for deployment. The Government itself found in Ext.P6 that they were not available for deployment as they were retained in the parent schools. The contention thus raised in the counter affidavit that protected teachers W.P.(C). No.11118/2008 -:5:- were available for deployment cannot be accepted. The same goes against the findings in Ext.P6 order itself. Apart from that, no other materials have been produced along with the counter affidavit to show that they were available for deployment. 8. The learned counsel for the petitioner relied upon the observations made in the Judgment of this Court in W.P.(C).No.8039/2008. Therein, this Court, after considering various Government Orders found that the obligation of the Manager is mainly to appoint one protected teacher in the school. Herein, the Government itself has adopted in Exts.P9 and P10 orders, the absence of protected hands for deployment as a ground for approving similarly placed teachers of the academic year 2004-05 in the same school. The petitioner is also entitled for a similar treatment. 9. Therefore, the order Ext.P6, in so far as it denies the approval from 03/06/2005 and approves it from 01/12/2006, is quashed. It is declared that the petitioner is entitled for approval of appointment from 03/06/2005, the date of appointment. Appropriate W.P.(C). No.11118/2008 -:6:- orders shall be passed in that regard by the competent authority among the respondents within two months from the date of production of a copy of this Judgment. The petitioner will also be granted various benefits including monetary benefits for the said period. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms