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2009 Supreme(Online)(KER) 5419
HIGH COURT OF KERALA
K.T.SANKARAN, J
SURESHKUMAR.C. – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/1762/2009
SRI.M.VIJAYAKUMAR
The court established that valid objections must be explicitly stated for appointment denials, emphasizing the need for adherence to established procedural fairness in educational appointments.
Headnote:
Employment - Appointment - G.O. (MS) No.123/91/G.Edn. - Summary: The court interpreted G.O. (MS) No.123/91 as mandating the appointment of protected teachers for newly opened schools, ruling that the absence of an established vacancy precluded the appointment of the petitioner.
Fact of the Case:
The petitioner sought approval for their appointment as H.S.A. (Sanskrit) after prior rejections on grounds of unestablished vacancies and protected teacher appointments, particularly following a dispute over another teacher's position resolved by a government order.
Issues: Whether the petitioner is entitled to approval for appointment as H.S.A. (Sanskrit) following the resolution of an alleged established vacancy and the proper consideration of previous decisions.
Ratio Decidendi: The court held that the absence of a mentioned requirement in the Director's order regarding protected teacher appointments indicated that the previous decisions should not block the petitioner's appointment approval.
Final Decision: The court directed the respondent to expedite the consideration of the petitioner's appointment request within three months.
JUDGMENT
The petitioner is working as H.S.A. (Sanskrit) in Pavandoor Higher Secondary School with effect from 9.10.2000. The proposal for appointment of the petitioner was rejected by the District Educational Officer as per Ext.P1 order dated 12.2.2001 on the ground that the school being a newly opened school, the Manager should have appointed protected teachers as per G.O. (MS) No.123/91/G.Edn. Dated 5.8.1991. It was also held that the vacancy against which the appointment was made, was not established. Ext.P1 order was challenged in appeal before the Deputy Director who passed Ext.P3 order dated 24.8.2001 rejecting the appeal. The Manager filed an appeal before the Director of Public Instruction challenging Ext.P3 order. The Director of Public Instruction as per order dated 10.7.2002 dismissed the revision on the ground that the promotion and posting of E.Valsala, H.S.A. as H.S.S.T. was not approved and therefore, there was no established vacancy of H.S.A. to WPC No.1762/2009 2 accommodate the petitioner as H.S.A. (Sanskrit). The reason stated by the authorities below that no protected teacher was appointed, was not stated as a reason by the Director of Public Instruction.
2. It is stated that there was a dispute between Smt.Valsala and Sri.Hrishikesan for the post of H.S.S.T. It is stated that the dispute between them was settled and the Government passed Ext.P5 order dated 11.7.2007 wherein the agreement was recorded and the Manager was directed to appoint Hrishikesan in the next arising vacancy of H.S.S.T. (Malayalam) in Pavandoor Higher Secondary School and settle the matter for ever. It is stated that pursuant to Ext.P5 order, appointment of Smt.Valsala as H.S.S.T. was approved by the Director of Public Instruction on 23.10.2007, with effect from 1.9.2000. The petitioner states that thus a clear vacancy of H.S.A. (Sanskrit) was established with effect from 1.9.2000. 3. It is further stated that the Manager filed a petition before the Director of Public Instruction stating that the appointment of Valsala having been approved, the appointment of the petitioner (Sri.C.Sureshkumar) is liable to be approved WPC No.1762/2009 3 with effect from 9.10.2000. The Manager requested the Director of Public Instruction to issue appropriate directions to the District Educational Officer. The Director of Public Instruction returned Ext.P6 stating that he has no authority to review his order and directing the Manager to file a revision. Ext.P7 dated 21.12.2007 is the endorsement made by the Director of Public Instruction on Ext.P6. Thereafter, the petitioner filed Ext.P8 revision/representation dated 7.12.2007 before the Secretary to the Government (General Education Department) requesting to examine the matter and to issue necessary orders to approve the appointment of the petitioner as H.S.A.(Sanskrit) with effect from 9.10.2000. In Ext.P8, it is pointed out that the appointment and promotion of Smt.Valsala was approved with effect from 1.9.2000 and therefore, objection raised by the Director of Public Instruction for the approval of appointment of the petitioner is no longer in existence.
4. Though the District Educational Officer and the Deputy Director of Education pointed out in Exts.P1 and P3 that the Manager failed to appoint a protected teacher, in Ext.P4, that objection was not made a ground for rejection of approval of WPC No.1762/2009 4 appointment of the petitioner. The state of affairs is not very clear and even in Ext.P8, there is no mention about the same. Ext.P8 is not disposed of by the Government so far. Subsequent developments as pointed out in Ext.P8 and all other matters which are relevant are be examined by the Government before taking a final decision in the matter.
5. The reliefs prayed for in the Writ Petition are the following:
“(i) Issue a writ of certiorari or any other appropriate writ order or direction calling for the originals relating to Exts.P1, P2 and P4 and quash the same.
(ii) issue a writ of mandamus dire
