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2013 Supreme(Ker) 1057
IN THE HIGH COURT OF KERALA
P.N. RAVINDRAN, J.
Manojkumar - Appellant
v.
State of Kerala - Respondent
W.P.(C) No.9150 of 2012
Decided On : 19-03-2013
Advocate Appeared:
For the Petitioner: James Abraham (Vilayakattu)
For the Respondents: V. Vijulal (Sr. Government Pleader)
Headnote:
Kerala Education Rules 1959 - Rules 7 and 6(viii) - Rights and duties of Manager - Who is an appropriate authority to appoint one protected teacher in the school - Whether Deputy Director forward list of protected teachers to Manager for making appointments - Whether delay occurred - Challenged - Held, 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 R.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 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. 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, In such circumstances, Court 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.
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). 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) a
