Saifudheen .P. vs State Of Kerala
2021 Latest Caselaw 6014 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                       WP(C).No.933 OF 2021(N)


PETITIONER:

               SAIFUDHEEN .P., AGED 35 YEARS
               S/O.MUHAMMED.C.T., HIGH SCHOOL ASSISTANT (ENGLISH),
               SIR SYED HIGHER SECONDARY SCHOOL, KARIMBAM P.O.,
               TALIPARAMBA, KANNUR DISTRICT, PIN-670 141.

               SRI.POOVAMULLE PARAMBIL ABDULKAREEM

RESPONDENTS:

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

      2        DIRECTOR OF GENERAL EDUCATION,
               THIRUVANANTHAPURAM-695 001.

      3        DEPUTY DIRECTOR OF EDUCATION,
               OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
               KANNUR-670 001.

      4        DISTRICT EDUCATIONAL OFFICER,
               OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
               KANNUR-670 001.

      5        DISTRICT EDUCATIONAL OFFICER,
               TALIPARAMBA, KANNUR DISTRICT-670 141.

      6        MANAGER, SIR SYED HIGHER SECONDARY SCHOOL,
               KARIMBAM P.O., TALIPARAMBA, KANNUR, PIN-670 141.

      7        HEADMASTER, SIR SYED HIGHER SECONDARY SCHOOL,
               KARIMBAM P.O., TALIPARAMBA, KANNUR, PIN-670 141.

               SRI.P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.933 OF 2021(N)

                                   2



                             JUDGMENT

Dated this the 19th day of February 2021

The petitioner, who is stated to be working as High

School Teacher in the "Sir Syed Higher Secondary School",

Kannur - managed by the sixth respondent - has approached

this Court impugning Ext.P6 orders; as per which, his

approval of appointment with effect from 01.07.2010 has been

rejected for the reason that the Manager ought to have

appointed a protected teacher, since the school in question is

a "newly opened" one.

2. The petitioner says that when an earlier proposal

seeking the appointment of a teacher by name Sri.Adbu

Raheem was forwarded to the Manager in the same vacancy

to which the petitioner has been appointed, it was rejected by

the fourth respondent for the afore said reason and mandating

that all existing and arising vacancies should be filled up only

by protected teachers. He says that the fourth respondent

thus did not consider his proposal for approval with effect

from 01.07.2010, but that it was later approved with effect

from 01.06.2011, by including him in the "Teachers Package". WP(C).No.933 OF 2021(N)

3. The petitioner asserts that the sixth respondent -

Manager has already appointed a protected teacher by name

Smt.Shailaja as a High School Teacher in Malayalam and that

she was in service at that time when he was appointed. He

further says that neither was any list of protected teachers

forwarded by the Department to the 6th respondent -

Manager; nor were there any other teachers awaiting

absorption and therefore, that even if the school is a "newly

opened" one, the action of the Manager in having appointed

him cannot be found to be in error. The petitioner relies on

the judgment of this Court in Moosakutty v. D.E.O.,

Wandoor [2009 (3) KLT 863] and Nadeera v. State of

Kerala [2011 (3) KLT 790] in substantiation of his case.

4. The petitioner, therefore, prays that Ext.P6 order be

set aside, particularly because, in a similar case relating to a

non-teaching staff, Ext.P8 order has been issued by the

Government, granting the said person the benefit of approval

from the date of his initial appointment.

5. In response, the learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that since it is admitted by the WP(C).No.933 OF 2021(N)

petitioner, as well as the Manager, that the school in question

is a "newly opened" one, all existing and arising appointments

therein would have been only done through protected

teachers, as stipulated by the Government through their order,

bearing No.G.O.(MS)No.19/09/G.Edn. dated 09.02.2009. The

learned Senior Government Pleader asserted that since the

Manager, admittedly, has not appointed any protected teacher,

the appointment of the petitioner with effect from 01.07.2010

cannot be found to be in order. He, therefore, prayed that

this writ petition be dismissed.

6. Even when I hear the learned Senior Government

Pleader as afore, the petitioner's specific case is that a

protected teacher by name Smt.Shailaja has already been

appointed in the school in question by shifting her from

"Shivapuram Higher Secondary School". The petitioner also

has a case that the Manager had not been furnished with any

list of protected teachers by the Department and that there

were no such teachers available, awaiting absorption. It is, of

course, in such manner that the petitioner relies upon

Moosakutty (supra) and Nadeera (supra), because this Court WP(C).No.933 OF 2021(N)

has declared in those judgments that unless the list of

protected teachers had been furnished by the Department to

the Manager, the latter would not be obligated to await

appointment of a protected teacher before appointing other

persons.

7. When I examine Ext.P6 order, it is clear that none of

these aspects have been considered therein but that the

Authority has proceeded against the claim of the petitioner

solely for the reason that the school is a "newly opened" one.

However, the contention of the petitioner, that no list of

protected teachers had been furnished to the Manager and

that a protected teacher, by name Smt.Shailaja, had already

been appointed, have not been even adverted to therein.

8. I am, therefore, of the firm view that the request for

approval of the petitioner with effect from 01.07.2010,

requires to be reconsidered by the Government taking note of

the afore aspects as also Ext.P8 order, which, the petitioner

contends, has been issued in an identical circumstance.

For the afore reasons, I order this writ petition and set

aside Ext.P6; with a consequential direction to the WP(C).No.933 OF 2021(N)

Government to reconsider the request for approval of the

petitioner's appointment with effect from 01.07.2010, in the

manner as above, after affording an opportunity of being

heard to him as well as to the Manager of school - either

physically or through video conferencing - thus culminating in

an appropriate order thereon, within a period of three months

from the date of receipt of a copy of this judgment

Needless to say, if, after the afore exercise, the petitioner

is found entitled to be approved from 01.07.2010, all

consequential benefits shall be disbursed to him within a

period of three months thereafter.

                                         Sd/- DEVAN RAMACHANDRAN

    Stu                                           JUDGE
 WP(C).No.933 OF 2021(N)





                               APPENDIX
    PETITIONER'S EXHIBITS:

    EXHIBIT P1        TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY
                      THE 6TH RESPONDENT.

    EXHIBIT P2        TRUE COPY OF THE REJECTION ORDER NO.B4/7396-

09/K.DIS DATED 19.02.2010 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE LETTER NO.60930/J2/G.EDN DATED 25.10.2011 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REVISION PETITION DATED 06.01.2020 SUBMITTED BY THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 21.01.2020 IN WPC NO.1539/2020 PASSED BY THIS HON'BLE COURT.

EXHIBIT P6 TRUE COPY OF THE GO(RT) NO.3178/2020/G.EDN DATED 28.11.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE STAFF FIXATION ORDER NO.RDIS B4/4975/10 DATED 11.03.2011 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE GO(RT) NO.3257/2020/G.EDN DATED 10.12.2020 ISSUED BY THE 1ST RESPONDENT.