Kerala High Court
Leena V A vs The State Of Kerala on 6 January, 2025
Author: K. Babu
Bench: K. Babu
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W.P (C) No.2454 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO. 2454 OF 2021
PETITIONER:
LEENA V A,
AGED 40 YEARS,
WIFE OF VIPIN JOSEPH,
HIGH SCHOOL ASSISTANT (HINDI),
MARY MATHA HIGH SCHOOL, PANTHALAMPADAM P O,
PANNIANKARA, PALAKKAD-678 683.
BY ADVS.
V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT ANNEXE-II,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF GENERAL EDUCATION
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
PALAKKAD-678001.
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W.P (C) No.2454 of 2021
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4 THE DISTRICT EDUCATIONAL OFFICER,
FORT MAIDAN, PALAKKAD DISTRICT-678001.
5 THE MANAGER,
MARY MATHA HIGH SCHOOL, PANTHALAMPADAM,
P.O PANNIANKARA, PALAKKAD-678683.
BY ADV
SRI.E.G.GORDEN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P (C) No.2454 of 2021
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K.BABU, J.
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W.P (C) No.2454 of 2021
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Dated this the 6th day of January, 2025
JUDGMENT
The prayers in this Writ Petition (Civil) are as follows:
"(i) Call for the records relating to Exhibits
P-1, P-2, P-3 and P-6 and set aside the
originals of the same by the issue of a
writ of certiorari or other appropriate
writ or order.
(ii) Issue a writ of mandamus or other
appropriate writ order or direction
commanding the 4th Respondent to
approve the appointment of the petitioner
as HSA (Hindi) from 02.06.2008 onwards
and disburse the attendant benefits
forthwith, as though the Manager has
executed the required bond, in the light
of Exhibits P-7 to P-11.
(iii) Pass such other order or direction which
this Hon'ble Court may deem fit and
proper to grant in the circumstances of
the case."
2. The petitioner was appointed as High School Assistant
(HSA) (Hindi) in the Mary Matha High School, Panthalampadam, an
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aided school under the administrative jurisdiction of respondent
No.4. Approval to the appointment of the petitioner was rejected by
the District Educational Officer (DEO) (respondent No.4) stating that
the vacancy had to be filled up by protected hand. The Manager of
the school (respondent No.5) filed an appeal before the Deputy
Director of Education, Palakkad (respondent No.3). The appeal was
rejected, upholding the order of the DEO. The Manager filed second
appeal before the Director General of Education (respondent No.2),
which was also rejected as per Ext.P3. The Manager challenged the
above orders, filing a Revision Petition before the Government.
When there occurred a delay in the consideration of the revision
petition, the petitioner and the Manager approached this Court filing
W.P (C) No.28520/2010. As per judgment dated 15.09.2010, this
Court directed the Government to consider the revision petition in a
time-bound manner. Thereafter, the Government issued Ext.P6
order rejecting the request of the petitioner.
3. For and on behalf of the official respondents, respondent
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No.4 filed a counter, wherein the following contentions have been
raised:
3.1. Mary Matha High School, Panthalampadam commenced
functioning on 04.07.1983. The school is in the category of "newly
opened schools". As per GO (P) No.46/2006/G.Edn dated 01.02.2006,
the Managers of all aided schools which were started between 1979
and 1990 shall appoint one protected teacher in the schools.
Respondent No.5 has not complied with this condition before
appointing the petitioner. The absence of the protected teacher
does not make the Manager competent to appoint a fresh teacher
on a regular basis.
3.2. The appointment of the petitioner has been approved with
effect from 01.06.2011 onwards as per the terms and conditions laid
down in G.O (P) No.199/2011/G.Edn dated 01.10.2011.
3.3. Government Order by G.O(P) No.154/2014/G.Edn dated
11.08.2014 amended the KER stating that the service of the teachers
prior to 01.06.2011 shall not be reckoned for any service benefits,
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but shall only be deemed to commence afresh with effect from
01.06.2011.
4. I have heard Sri.V.A.Muhammed, the learned counsel
appearing for the petitioner assisted by Adv.Bismi and
Sri.E.G.Gorden, the learned Government Pleader.
5. The learned counsel for the petitioner made the following
submissions:
(a) The interest of justice requires that the
appointment of the petitioner as HSA is to be
approved with effect from 02.06.2008.
(b) In Exhibit P6 order, the Government stated that
the absence of the protected teacher does not
make the Manager competent to appoint a fresh
teacher on a regular basis, which reflects that
there was no protected teacher available.
(c) There is nothing to show that the list of protected
teachers was sent to the Manager so as to
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comply with the condition in Rule 6 (viii) of
Chapter V of the Kerala Education Rules.
6. The learned counsel for the petitioner relied on Nadeera
T.S and Another v. State of Kerala and Others [2011 (3) KHC 650] to
fortify his contention.
7. The learned Government Pleader submitted that
respondent No.5, the Manager, has not complied with the conditions
in the Rule 6 (viii) of Chapter V of the Kerala Education Rules. The
absence of the protected teacher does not make the Manager
competent to appoint a fresh teacher on a regular basis. The
petitioner is entitled to approval only with effect from 01.06.2011.
8. The following facts are not in dispute:
(i) The petitioner was appointed as HSA (Hindi) on
02.06.2008 against a retirement vacancy.
(ii) Respondent No.5 appointed the petitioner in
terms of the staff fixation order.
(iii) The petitioner is eligible to be appointed as
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HSA (Hindi) on the date of her appointment.
(iv) The post in which the petitioner was appointed
was admissible in 2008 and subsequent years.
9. The learned counsel for the petitioner submitted that
Ext.P6 order itself points to the fact that no protected teacher was
available for appointment and no list of protected teachers was
communicated to the Manager.
10. In the revision petition, the petitioner had raised a specific
contention that one protected teacher was working in the school
from 1984-2000, and no protected HSA (Hindi) teacher was
available for appointment. The official respondents have no case
that a protected teacher was available for appointment. The
obligation of the Manager to appoint a protected teacher is provided
under Rule 6 (viii) of Chapter V of the Kerala Education Rules. The
Manager of an aided school in a district cannot have knowledge
regarding the availability of protected hands as required in the
rules. Therefore, such information should be made available to the
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Managers of newly opened schools, enabling them to comply with
the rules.
11. The various circulars issued by the Director of General
Education mandates that the Deputy Director of Education has to
forward a list of protected teachers to the Managers for making
appointment. This Court in Nadeera T.S (supra) has held that in
Rule 6 (viii) of Chapter V of the Kerala Education Rules regarding
the appointment of protected hand, time factor is not mentioned.
12. Taking note of the fact that the availability of the protected
hands may be delayed, this Court in Nadeera T.S (supra) held that
to compel a Manager to postpone the appointment of a qualified
teacher even after the post is sanctioned by the staff fixation order
will go against the scheme of the Act and Rules itself. This Court in
Nadeera T.S (supra) further held that when the staff fixation order
permits the appointment of the required number of staff, the
Manager will have to make the appointment in existing vacancies,
and the exercise of the power of the Manager in such cases cannot
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be said to be against the scheme of the Act.
13. A Division Bench of this Court in State of Kerala and
Others v. Haseena and Another [2013 (2) KHC 103] held that as per
Rule 6(viii) of Chapter V of the Kerala Education Rules, the only
obligation cast on the Managers of the aided schools is that they
must appoint the protected teachers, whenever a list is sent and
beyond that, there is no other obligation cast on them. In the
present case, the official respondents have no case that a protected
teacher was available, and the list of protected teachers, as
required, was forwarded to the Manager concerned.
14. In Nadeera T.S (supra), this Court made the following
observations:
"16. Therefore, it can be seen that when the Manager
exercised his power to make appointment in terms of staff
fixation order of a qualified teacher, the postponement of the
approval on the plea that the same can be done only from the
date of appointment of the protected hand may not be
justified.........
17. ...............As far as grant of approval is concerned,
normally, it should conform to the existence of vacancy and
the sanction of post as per the staff fixation order and the
eligibility of the teacher for appointment by fulfilling the
qualification. Once these conditions are satisfied, unless there
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is any other legal bar for granting approval, there cannot be a
refusal to grant approval normally."
15. In Nadeera T.S (supra), this Court held that there is no
enabling provision which allows the Educational Officer to postpone
the approval till a protected hand is appointed till the recent
Government Order dated 19.11.2009 was issued which can only be
prospective. In the present case, evidently, there was no
prohibition at the time of appointment of the petitioner.
16. Apart from that, the appointment of a teacher in a school
only recognises the obligation of the Manager to conduct the school
in terms of the Statute, requirements of the students, and staff
fixation. The primary concern is the welfare of the students, and
therefore, unless a qualified hand is appointed, the Manager will not
be able to conduct the school in a proper manner. This does not
mean that he can wriggle out of the obligation regarding the
appointment of a protected hand, but the system should not be
stretched to the extent of denying approval of the appointment of a
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qualified teacher, that too in vacancies like those herein, which
arose due to retirement of qualified teachers {Vide: Nadeera T.S
and Another v. State of Kerala and Others [2011 (3) KHC 650]}.
17. The petitioner is entitled to the reliefs prayed for in the
Writ Petition. The impugned orders Exts.P1, P2, P3, and P6 stand
quashed. The District Educational Officer (Respondent No.4) is
directed to approve the appointment of the petitioner with effect
from 02.06.2008. The necessary orders shall be passed within a
period of two months from the date of receipt of a certified copy of
this judgment. The petitioner is entitled to all consequential
benefits.
The Writ Petition (Civil) is allowed as above.
Sd/-
K.BABU,
JUDGE
KAS
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APPENDIX OF WP(C) 2454/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER
NO.L.DIS/B4/5020/08 DATED 04.10.2008 OF
THE DEO.
EXHIBIT P2 TRUE COPY OF THE ORDER
NO.K.DIS/B4/27450/09 DATED 09.06.2009
OF THE DDE.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.
EMI/57867/2009/DPI/K.DIS DATED
17.12.2009 OF THE DIRECTOR.
EXHIBIT P4 TRUE COPY OF THE REVISION FILED BEFORE
THE GOVERNMENT DATED 16.02.2010.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO.
28520/2010 DATED 15/09/2010.
EXHIBIT P6 TRUE COPY OF THE GO (RT)NO.
1723/2011/G.EDN DATED 07/05/2011 OF THE
GOVERNMENT.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WA NO.
2290/2015 DATED 25/07/2019.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WA NO.
2091/2018 DATED 28/06/2019.
EXHIBIT P9 TRUE COPY OF THE LETTER NO
60930/J2/11.G.EDN DATED 25/10/2011 OF
THE GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE GO (RT) NO.
424/2019/G.EDN DATED 31.01.2019 OF THE
GOVERNMENT.
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EXHIBIT P11 TRUE COPY OF THE GO (RT)
NO.2029/2017/G.EDN DATED 24/06/2017 OF
THE GOVERNMENT.
