Aji Swapna K vs The State Of Kerala
2021 Latest Caselaw 3873 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                       WP(C).No.5658 OF 2015(F)


PETITIONER:

               AJI SWAPNA K
               AGED 39 YEARS
               W/O.N.K.SUBHASH, LOWER PRIMARY SCHOOL ASSISTANT,
               ABDUL KALAM AZAD MEMORIAL LP SCHOOL, VALAMCHUZHY,
               PATHANAMTHITTA-689 645.

               BY ADVS.
               SRI.V.A.MUHAMMED
               SRI.M.SAJJAD

RESPONDENTS:

      1        THE STATE OF KERALA
               REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL
               EDUCATION DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE DIRECTOR OF PUBLIC INSTRUCTIONS
               JAGATHY, THIRUVANANTHAPURAM-695 014.

      3        THE ASSISTANT EDUCATIONAL OFFICER
               PATHANAMTHITTA DISTRICT-689 001.

      4        THE MANAGER
               ABDUL KALAM AZAD MEMORIAL L.P.SCHOOL, VALAMCHUZHYL,
               PATHANAMTHITTA-689 645.


OTHER PRESENT:

               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.5658 OF 2015                 2

                                JUDGMENT

The petitioner says that she was appointed as

a Lower Primary School Teacher in "Abdul Kalam

Azad Memorial Lower Primary school, Valanchuzhy"

with effect from 11.01.2013, but, that said

appointment was denied approval by the Assistant

Educational Officer (AEO), Pathanamthitta, for

the reason that the school is an "uneconomic one"

and therefore, that only a teacher on daily wages

could have been appointed.

2. The petitioner says that, as per the

approved staff fixation order, three posts of

Lower Primary School Teacher and one post of

Headmaster had been sanctioned in the school and

that one among the said Lower Primary Teachers

was promoted as Headmistress, thus occurring a

resultant vacancy to appoint her. The petitioner

says that the AEO seems to have acted solely on

the basis of the Government Order, dated

12.10.2006, which mandates that, vacancies in

uneconomic schools be filled up only by

protected teachers; but that, in the case at

hand, this is not relevant because said Officers

had not forwarded the list of protected teachers

to the Manager at any point of time and

consequently, that the ratio of the judgments of

this Court in Nadeera Vs State of Kerala (2011

(3) KLT 790) and Moosakutty Vs. DEO, Wandoor

(2009 (3) KLT 863) would squarely apply. The

petitioner thus prays that, the impugned orders,

namely Exts.P2 and P5, be set aside and that his

client be directed to be granted approval with

effect from the date on which she was first

appointed.

3. That said, when this matter was pending,

it appears that the petitioner has filed an

Interlocutory Application producing Ext.P13

statutory Revision before the Government, under

the provisions of Rule 92 Chapter XIVA of the

Kerala Education Rules; and she thus

alternatively prays that same be directed to be

taken up and disposed of at the earliest.

4. The learned Senior Government Pleader -

Sri.P.M.Manoj, submitted that, since the

petitioner has already preferred a statutory

Revision, this Court may not enter into the

merits of the contentions urged in this writ

petition and allow the competent Authority of the

Government to take a decision thereon, as per

law. The learned Senior Government Pleader

submitted that the petitioner cannot have any

cause of concern in this course, since she

herself has filed this revision and since the

Government can consider all her contentions on

its merits. He, therefore, prayed that this writ

petition be ordered only on such terms.

5. I find some force in the submissions of

the learned Senior Government Pleader, because

the petitioner herself has preferred a Revision

and it will not be justified for this Court to

invoke the provisions of Article 226 of the

Constitution of India, when an alternative

efficacious statutory remedy available has

already been invoked.

In the afore circumstances, I order this writ

petition directing the competent Secretary of the

Government to take up Ext.P13 Revision of the

petitioner and dispose it of, implicitly

adverting to the ratio in Nadeera (Supra) and

Moosakkuty (Supra) and after affording an

opportunity of being heard to the petitioner as

also the Manager of the School- either physically

or through video conferencing - thus culminating

in an appropriate order thereon, as expeditiously

as is possible, but not later than three months

from the date of receipt of a copy of this

judgment.

I make it clear that while the afore exercise

is completed, the competent Secretary of the

Government will specifically verify if a list of

protected teachers had been forwarded to the

Manager at the relevant time and if it has not

been so, then he will issue appropriate orders

adverting to the afore judgments.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/5.2.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 EXT P1 : TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 11-01- 2013.

EXHIBIT P2 EXT P2 : TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER, PATHANAMTHITTA.

EXHIBIT P3 EXT P3 : TRUE COPY OF THE LETTER NO.60930/J2/11/G.EDN DATED 25-10-2011 OF THE GOVERNMENT.

EXHIBIT P4 EXT P4 : TRUE COPY OF THE JUDGMENT IN WP(C).NO.7106/2014-K DATED 12-03-2014.

EXHIBIT P5 EXT P5 : TRUE COPY OF THE G.O.

(RT.)NO.4834/2014/G.EDN DATED 07-11- 2014 OF THE GOVERNMENT.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.C/4361/2016/K.DIS DATED 30/11/2016 ISSUED BY 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.F3/89420/2018/DPI/K.DIS DATED 08/02/2019.

EXHIBIT P8 TRUE COPY OF THE ORDER NO.C/256/19/K.DIS DATED 18/03/2019 ISSUED BY 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.C/526/19/K.DIS DATED 18/03/2019 ISSUED BY 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE LETTER NO.C/2481/18/K.DIS. DATED 16/11/2018 OF THE AEO, PATHANAMTHITTA.

EXHIBIT P11 TRUE COPY OF THE ORDER NO.B1/11809/2018 05/03/2019 ISSUED BY THE DEO, PATHANAMTHITTA.

EXHIBIT P12 TRUE COPY OF THE ORDER NO.C/13613/2019 DATED 28/11/2019 ISSUED BY DEO, PATHANAMTHITTA.

EXHIBIT P13 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 25/01/2020.