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2013 DIGILAW 251 (KER)

Manojkumar v. State of Kerala

2013-03-19

P.N.RAVINDRAN

body2013
JUDGMENT : 1. The petitioner was initially appointed as Upper Primary School Assistant, (UPSA for short), in a leave vacancy, by the fifth respondent Manager as per appointment order dated 10.11.1993. The said appointment was approved. Later, he was appointed as HSA (Malayalam) with effect from 11.1.1994 against a regular vacancy. The said appointment was also approved. When the staff fixation order for the academic year 1996-97 was issued, there was fall in the student strength and consequently one post of HSA (Malayalam) was reduced. The petitioner was thereupon reverted to the category of UPSA. He was thereafter reappointed as HSA (Malayalam) with effect from 5.6.2006, in the retirement vacancy of Smt. P.G. Mariamma, HSA (Malayalam). The District Educational Officer declined to approve the said appointment by order dated 28.11.2006, on the ground that the Manager should have filled up the vacancy of HSA (Malayalam) which arose on the retirement of Smt. P.G. Mariamma HSA (Malayalam), by appointing a protected teacher. Such a stand was taken in view of the fact that the school was upgraded during the year 1982-1983. 2. Aggrieved thereby, the Manager filed an appeal before the Deputy Director of Education, Pathanamthitta. The said appeal was rejected. The Manager thereupon filed a revision petition before the Director of Public Instruction. By Ext.P1 order passed on 26.3.2008, the Director of Public Instruction held that the petitioner being a rule 43 claimant, his appointment should be approved on condition that the resultant vacancy (vacancy of UPSA) should be filled up by a protected hand only. The Director of Public Instruction accordingly directed the District Educational Officer, Pathanamthitta to approve the petitioner’s appointment as HSA (Malayalam) with effect from 5.6.2006, on condition that the resultant vacancy (vacancy of UPSA) should be filled up by a protected hand. The Director of Public Instruction also directed the District Educational Officer to ensure that further appointments are approved only on satisfying the said condition. 3. The fifth respondent Manager did not appoint a protected hand in the vacancy of UPSA which arose consequent on the appointment of the petitioner as HSA (Malayalam). Instead, he appointed Sri. Sunilkumar, a rule 51-A claimant as UPSA in the said vacancy. As a result thereof, the District Educational Officer, Pathanamthitta did not approve the petitioner’s appointment as HSA (Malayalam). The fifth respondent Manager did not appoint a protected hand in the vacancy of UPSA which arose consequent on the appointment of the petitioner as HSA (Malayalam). Instead, he appointed Sri. Sunilkumar, a rule 51-A claimant as UPSA in the said vacancy. As a result thereof, the District Educational Officer, Pathanamthitta did not approve the petitioner’s appointment as HSA (Malayalam). Shortly thereafter, the Deputy Director of Education, Pathanamthitta at Thiruvalla sent Ext.P2 letter dated 14.10.2008 to the fifth respondent Manager enclosing with it a list containing the name of a protected Physical Education Teacher and directed the Manager to appoint him within seven days from the date of receipt of the said letter. The fifth respondent Manager thereupon issued Ext.P3 order dated 18.10.2008 appointing Sri. Ajith.S., Physical Education Teacher, SNDP High School, Chennirkkara, in an existing vacancy. 4. When, notwithstanding the said appointment, the petitioner’s appointment was not approved, he filed W.P.(C) No.37294 of 2008 in this Court for an order directing the District Educational Officer, Pathanamthitta to implement Ext.P1 order passed by the Director of Public Instruction. When the said writ petition came up for hearing before this Court on 20.3.2009, the learned Government Pleader appearing for the State of Kerala submitted that instead of appointing a protected teacher in the vacancy of UPSA which arose on the appointment of the petitioner as HSA (Malayalam), the Manager has appointed Sri.Sunilkumar, a rule 51-A claimant. The learned counsel appearing for the petitioner submitted that the purpose sought to be achieved by Ext.P1 order was achieved when the Manager appointed a protected teacher, whose name was forwarded by the Deputy Director of Education along with Ext.P2 letter, by issuing Ext.P3 appointment order dated 18.10.2010 (Ext.P6 in W.P.(C) No.37294 of 2008) and therefore, there is no reason why the petitioner’s appointment should not be approved. After considering the rival contentions, this Court by an interim order passed on 20.3.2009 in W.P.(C) No.37294 of 2008 directed the Director of Public Instruction to consider whether the stipulation in Ext.P1 order dated 26.3.2008 (Ext.P2 in W.P.(C) No.37294 of 2008) that the petitioner’s appointment as HSA (Malayalam) can be approved only on condition that the Manager appoints a protected hand, stands fulfilled in view of Ext.P3 order dated 18.10.2008 (Ext.P6 in W.P.(C) No.37294 of 2008) issued by the Manager, appointing a protected Physical Education Teacher in the school. This Court directed the Director of Public Instruction to take a decision in the matter within two months. The Director of Public Instruction heard the parties and passed Ext.P4 order dated 9.6.2009 directing approval of the petitioner’s appointment with effect from 1.11.2008, the date on which the protected teacher appointed as per Ext.P3 order dated 18.3.2008, joined duty in the school. 5. Aggrieved by the said order, the petitioner filed a revision petition before the State Government. A copy of the said revision petition was produced and marked as Ext.P10 in W.P.(C) No.37294 of 2008. In that writ petition, the petitioner also filed I.A.No.9688 of 2009 for an order directing the State of Kerala to consider the revision petition and pass orders thereon after affording all the parties an opportunity of being heard. By order passed on 4.8.2009 on I.A.No.9688 of 2009 in W.P.(C) No.37294 of 2008, this Court directed the State of Kerala to take a decision on the said revision petition after affording the petitioner and the Manager of the school an opportunity of being heard. The Government considered the said revision petition and rejected it by Ext.P5 order dated 4.3.2010. The petitioner thereupon amended W.P.(C) No.37294 of 2008 incorporating a challenge to the said Government order as well. 6. W.P.(C) No.37294 of 2008 was heard and disposed of by Ext.P6 judgment delivered on 27.5.2011. While the said writ petition was pending, the Government issued Ext.P7 order dated 26.2.2011 whereby the Government clarified that the stipulation in rule 6 (viii) of Chapter V of the Kerala Education Rules regarding absorption of protected hands, applies only to new schools, meaning thereby, schools which were established or upgraded on or after 1979 and that in respect of schools or sections of schools which were in existence before 1979, the stipulation in rule 6 (viii) of Chapter V of the Kerala Education Rules will have no application. In view of the said development, this Court disposed of W.P.(C) No.37294 of 2008 by Ext.P6 judgment delivered on 27.5.2011, with a direction to the Government to reconsider the matter in the light of Ext.P7 Government order. The Government thereafter heard the parties and passed Ext.P8 order dated 23.1.2012 wherein it took the stand that Ext.P7 Government order has only prospective operation and therefore, the petitioner’s request to have his appointment approved with effect from 5.6.2006 cannot be considered. The Government thereafter heard the parties and passed Ext.P8 order dated 23.1.2012 wherein it took the stand that Ext.P7 Government order has only prospective operation and therefore, the petitioner’s request to have his appointment approved with effect from 5.6.2006 cannot be considered. Hence this writ petition challenging Exts.P4, P5 and P8 orders and seeking the following reliefs: i. Issue a writ of certiorari by quashing Exts.P4, P5 and P8. ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to approve the Promotion/ appointment of the petitioner as HSA (Mal) w.e.f.5.6.2006, fix the salary and consequential benefits w.e.f. the date of appointment as HSA (Mal), and disburse the difference of salary arrears due to the petitioner w.e.f. 5.6.2006, with interest, forthwith. 7. The main contention raised in the writ petition is that a list containing the name of one protected teacher was furnished to the Manager by the Deputy Director of Education, Pathanamthitta by Ext.P2 letter dated 14.10.2008, that immediately thereafter by Ext.P3 order dated 18.10.2008 the Manager appointed the protected teacher whose name was forwarded by the Deputy Director of Education along with Ext.P2 letter and therefore the conditions stipulated by the Director of Public Instruction in Ext.P1 stood fulfilled. Relying on the decision of a learned single Judge of this Court in Nadeera v. State of Kerala ( 2011 (3) KLT 790 ), it is contended that as the Manager exercised his power to make appointments, in terms of the staff fixation order, of a qualified teacher, the approval of appointment cannot be postponed to a date on which the protected hand is appointed. The petitioner has also contended that being a rule 43 claimant, he was entitled to be promoted as HSA (Malayalam) in the retirement vacancy of Smt. P.G. Mariamma and therefore, for that reason also, he is entitled to have his appointment approved with effect from 5.6.2006. 8. A counter affidavit dated 11.10.2012 has been filed on behalf of the fourth respondent. In paragraph 4 thereof, it is stated that notwithstanding the direction in Ext.P1 that the vacancy of UPSA which arose consequent on the appointment of the petitioner as HSA (Malayalam) should be filled up by appointing a protected teacher, the Manager appointed Sri. 8. A counter affidavit dated 11.10.2012 has been filed on behalf of the fourth respondent. In paragraph 4 thereof, it is stated that notwithstanding the direction in Ext.P1 that the vacancy of UPSA which arose consequent on the appointment of the petitioner as HSA (Malayalam) should be filled up by appointing a protected teacher, the Manager appointed Sri. Sunilkumar, a rule 51-A claimant, as UPSA with effect from 5.6.2006, without appointing a protected teacher and that at the relevant time, three teachers in the school had become surplus and were deployed in various Government Schools. It is also stated that a protected teacher was absorbed in the school only with effect from 1.11.2008 and therefore, the petitioner is entitled to have his appointment approved only with effect from that date. The contention raised in the counter affidavit is that in view of the stipulations in Ext.P1, which has attained finality, the petitioner’s appointment can be approved only from the date on which the protected teacher joined duty pursuant to Ext.P3 appointment order. 9. I heard Sri.James Abraham, learned counsel appearing for the petitioner and Sri. V. Vijulal, learned Senior Government Pleader appearing for respondents 1 to 4. Though the fifth respondent Manager has been served, he has not chosen to enter appearance. It is evident from Ext.P1 order that the Director of Public Instruction had in recognition of the petitioner’s right under rule 43 of Chapter XIV-A of the Kerala Education Rules directed that his appointment should be approved on condition that the resultant vacancy of UPSA should be filled up by a protected teacher. The said direction was complied with only when the Manager issued Ext.P3 order dated 18.10.2008 appointing Sri.Ajith.S whose name was forwarded by the Deputy Director of Education, Pathanamthitta by Ext.P2 letter dated 14.10.2008. Sri.Ajith.S. joined duty duty on 1.11.2008. It is for this short reason that the Director of Public Instruction has in Ext.P4 taken the stand that the petitioner is entitled to have his appointment as HSA (Malayalam) approved only with effect from 1.11.2008. The Government have in Ext.P5 as also in Ext.P8 adopted the same stand. Sri.Ajith.S. joined duty duty on 1.11.2008. It is for this short reason that the Director of Public Instruction has in Ext.P4 taken the stand that the petitioner is entitled to have his appointment as HSA (Malayalam) approved only with effect from 1.11.2008. The Government have in Ext.P5 as also in Ext.P8 adopted the same stand. Neither the Director of Public Instruction nor the Government had a case when they passed the impugned orders and they do not have a case in the instant writ petition that a list of protected teachers had been made available to the Manager of the school simultaneous with the issuance of Ext.P1. The official respondents have no case that at any point of time prior to the date of Ext.P2, a list of protected teachers had been forwarded to the Manager. The respondents also admit the fact that the teacher, whose name was forwarded along with Ext.P2 letter, had joined duty on 1.11.2008. By G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 the Government inter alia directed that the management of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. The Government also directed that the Deputy Director of Education shall make available district-wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. Later, in Circular No.74101/J2/2004/G. Edn. dated 24.1.2005, the Government directed that a list of teachers eligible for protection in each District/Educational District shall be sent to the Deputy Director of Education by the Assistant Educational Officer/District Educational Officer concerned, before 31st of July of every year. It was further stipulated that the list so furnished by the Educational Officers shall be sent by the Deputy Director of Education to the concerned Manager by registered post within one week of its receipt. Interpreting the aforesaid Government order and the circular, a learned single Judge of this Court held in W.P. (C)No.2563 of 2008 that if the list of protected hands had not been made available, the Manager cannot be faulted for not appointing protected hands. Interpreting the aforesaid Government order and the circular, a learned single Judge of this Court held in W.P. (C)No.2563 of 2008 that if the list of protected hands had not been made available, the Manager cannot be faulted for not appointing protected hands. The same view was reiterated by another single Judge of this Court in W.P.(C)No.8903 of 2008 wherein it was held that the obligation of the Manager is only to appoint one protected teacher in the school and going by the circular issued by the Director of Public Instruction on 4.5.2005, the Deputy Director of Education has to forward the list of protected teachers to the Manager for making appointments. I have in W.P.(C)No.18986 of 2009 held that the Manager of an aided school in a district would not have personal knowledge of all protected hands in that district or educational district, who are required to be absorbed in terms of rule 6(viii) of Chapter V of the Kerala Education Rules and necessarily therefore, such information should be made available to the Managers of newly opened schools by the concerned Educational Officer. It is evident from the circular dated 24.1.2005 issued by the Government and the various Government orders that the Deputy Director of Education, Pathanamthitta should have forwarded a list of protected teachers to the fifth respondent Manager so as to enable him to comply with the conditions stipulated in Ext.P1. The Deputy Director of Education discharged his obligation in that regard only on 14.10.2008 when he forwarded a list containing the name of one protected teacher to the fifth respondent Manager. The fifth respondent Manager duly appointed that protected teacher in the school and he joined duty on 1.11.2011. In such circumstances, as held by a learned single Judge of this Court in Nadeera v. State of Kerala (supra), I am of the opinion that the petitioner cannot be visited the consequences of the delay on the part of the Deputy Director of Education, Pathanamthitta in forwarding a list of protected teachers to the fifth respondent Manager so as to enable him to satisfy the conditions stipulated in Ext.P1. Applying the principles laid down by this Court in Nadeera v. State of Kerala (supra), I am of the opinion that the petitioner is entitled to have his appointment approved with effect from 5.6.2006 in view of the fact that the stipulation regarding the appointment of a protected teacher was duly complied with immediately after a list containing the name of a protected teacher was forwarded by the Deputy Director of Education, Pathanamthitta. I accordingly hold that the petitioner is entitled to succeed. For the reasons stated above I allow the writ petition, set aside Ext.P4 passed by the Director of Public Instruction and Exts.P5 and P8 Government orders and declare that the petitioner is entitled to have his appointment as HSA (Malayalam) approved with effect from 5.6.2006. The District Educational Officer, Pathanamthitta shall issue formal orders approving the petitioner’s appointment as HSA (Malayalam) with effect from 5.6.2006, within two weeks from the date on which the petitioner produces a certified copy of this judgment before him. Arrears of salary and allowances shall be drawn and disbursed to the petitioner within a month thereafter.