Kerala High Court
Fasalul Haque vs State Of Kerala on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
WP(C) NO. 1022 OF 2014
PETITIONER:
FASALUL HAQUE, AGED 35 YEARS, S/O.ALIKUTTY HAJI,
V.K.HOUSE, VILAYIL P.O., KUZHIMANNA VIA,
MALAPPURAM DISTRICT-673 652.
BY ADVS.
SRI.P.K.MOHAMED JAMEEL
SRI.ABDUL SHUKOOR MUNDAMBRA
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM-695 014.
3 THE DISTRICT EDUCATIONAL OFFICER
MALAPPURAM-676 014.
4 THE ASSISTANT EDUCATIONAL OFFICER
KIZHISSERY-673 641, MALAPPURAM DISTRICT.
5 THE MANAGER, VIDYAPOSHINI AIDED UPPER PRIMARY SCHOOL,
VIALYIL P.O., PARAPPUR, MALAPPURAM DISTRICT-673 652.
BY ADVS.
SRI.O.C.LAIJU
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 1022/14
2
JUDGMENT
The petitioner says that he was initially
appointed as an Upper Primary School Teacher, with
effect from 01.11.2006, in an anticipated
additional post, since he had a vested right under
Rule 51B Chapter XIVA of the Kerala Education
Rules (KER for short), consequent to the death of
his wife K.Suharabi - who unfortunately died while
working as a UPSA in 'Vidyaposhini Aided Upper
Primary School', Malappuram.
2. The petitioner says that, however, this
additional post had not been sanctioned and
consequently, that his appointment was denied
approval due to the ban ordered by the Government
at the relevant time and that, therefore, he was
working without approval ever since 01.11.2006. He
says that he, therefore, requested the 5th
respondent-Manager to post him as a Junior Arabic
Teacher, which vacancy arose due to the retirement
WPC 1022/14
of a Teacher by name Sri.Veerankutty on 31.03.2010
and that accordingly, he was shifted to the said
post with effect from 01.06.2010. The petitioner
has produced Ext.P1 in substantiation of this
assertion.
3. The petitioner, thereafter, says that
after he was so appointed through Ext.P1, he
commenced work as a Junior Arabic Teacher and that
the proposal for approval was also forwarded to
the 4th respondent-Assistant Educational Officer
(AEO), who, however, denied the same saying that
since the Manager had not executed a bond as per
the terms of GO(P)No.10/10/G.Edn, dated
12.01.2010, only a protected teacher could have
been appointed and that his accommodation in the
post was illegal. He says that the Manager,
thereafter, submitted an appeal before the 3rd
respondent-District Educational Officer (DEO),
Malappuram, which was also rejected on the same
ground and therefore, that he was constrained to
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move the Government through a Revision under Rule
92 Chapter XIVA of the KER, which has now led to
Ext.P4 order, wherein, same stand has been
reiterated and his approval rejected, but without
citing any reason for the same.
4. The petitioner says that in the meanwhile,
the Government brought out a 'Teachers' Package'
through G.O.(P)199/2011/G.Edn. dated 01.10.2011
and that he was accordingly, approved with effect
from 01.06.2011; and thus prays that the competent
Authorities be directed to grant him approval from
the date of his initial appointment, namely
01.11.2006, till 31.05.2011 and consequently that
Ext.P4 be quashed.
5. I have heard Sri.Mohamed Jameel - learned
counsel for the petitioner and Sri.P.M.Manoj -
learned Senior Government Pleader for the official
respondents.
6. Sri.P.M.Manoj - learned Senior Government
Pleader, submitted that a counter affidavit has
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been filed on behalf of the 2nd respondent,
wherein, the details of the petitioner's
appointment have been furnished. He submitted that
since the Manager of the school did not choose to
execute a bond as per GO(P)No.10/10/G.Edn, dated
12.01.2010, the educational Authorities had no
other option but to reject the approval of the
petitioner. He then added that, since there were
protected teachers available for deployment in the
educational district concerned at the relevant
time, the Manager was fully obligated to appoint
one among them and not to have appointed the
petitioner. He, therefore, prayed that this Writ
Petition be dismissed.
7. In reply, Sri.Mohamed Jameel submitted
that even if the rigour of GO(P)No.10/10/G.Edn.
dated 12.01.2010 should apply to this case, his
client is entitled to relief because, through
Nadheera v State (KLT 2011(3) 790) and Moosakutty
v. District Educational Officer (KLT 2009(3) 863),
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the law has been well declared that unless the
Educational Authorities forward a list of
protected teachers to the Manager, no legal
obligation can be cast upon him to appoint one
such to the available vacancy. He asserted that in
this particular case, no such list had been
forwarded to the Manager and that this is
crystally clear from the counter affidavit filed
by the 2nd respondent; and thus reiteratingly
prayed that this Writ Petition be allowed.
8. I have given very anxious consideration to
the afore submissions and have also examined the
documents placed on record by the parties.
9. The counter affidavit of the 2nd respondent
certainly says that the Manager was obligated to
appoint a protected teacher, but that he did not
do so, while appointing the petitioner. However,
as rightly stated by Sri.Mohamed Jameel, the
counter affidavit is completely silent as to if
any such list of protected teachers had been
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forwarded to the Manager by the educational
Authorities at any point of time. Since this
aspect is silent in the counter pleadings, it can
only be assumed that no such list had been
forwarded to the Manager. Obviously, therefore,
the rigour of Nadheera (supra) and Moosakutty
(supra) would apply in its full force and would
come to the aid of the petitioner.
10. That said, it is also now well settled
that if the Manager does not execute a bond in
terms of GO(P)No.10/10/G.Edn. dated 12.01.2010,
then the Educational Authorities are enjoined to
presume that he has done so and for that reason
the petitioner's approval cannot be held up. This
has also been well settled by this Court through
various judgments.
In the afore circumstances, I allow this Writ
Petition and set aside Ext.P4 order of the
Government; with a consequential direction to its
competent Authority to reconsider the Revision of
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the petitioner dated 13.06.2012, after affording
him, as also the Manager, an opportunity of being
heard - 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.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
WPC 1022/14
APPENDIX OF WP(C) 1022/2014
PETITIONER EXHIBITS
EXHIBIT P1.TRUE COPY OF THE PETTIIONER'S
APPOINTMENT ORDER DATED 1/6/2010.
EXHIBIT P2.TRUE COPY OF THE ORDER PASSED
BY THE ASSISTANT EDUCATIONAL OFFICER,
KIZHISSERRY DATED 11/1/2011.
EXHIBIT P3.TRUE COPY OF THE ORDER PASSED
BY THE DISTRICT EDUCATIONAL
OFFICER,MALAPPURAM DATED 7/4/2011.`
EXHIBIT P4.TRUE COPY OF THE ORDER PASSED
BY THE 1ST RESPONDENT DATED 27/3/2013.
EXHIBIT P5.TRUE COPY OF THE ORDER PASSED
BY THE 1ST RESPONDENT DATED 28/4/2012.
