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2011 Supreme(Online)(KER) 37842
HIGH COURT OF KERALA
T.R.RAMACHANDRAN NAIR, J
STANLY JOSEPH – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C)/564/2009
SRI.V.A.MUHAMMED, SRI.K.E.HAMZA2) K.K.SEEMA3) M.S.SWAPNA
The legal principle established is that a manager cannot be held liable for failing to appoint protected teachers when the required list has not been communicated.
Headnote:
Employment - Writ Petition - G.O.(P) No.178/2002/G.Edn., G.O.(Rt) No.3776/2006/G.Edn. - The court found that the manager's actions were justified due to lack of communicated lists of protected teachers, leading to approval of teacher appointments despite earlier denials.
Fact of the Case:
The case involved teachers whose appointments were rejected due to the Manager's obligation to appoint only protected teachers. The teachers argued that no list of protected teachers was provided, leading to their appointments.
Finding of the Court:
The court found that the Manager could not be faulted for not appointing protected teachers when no list was communicated. The reasoning from previous judgments supported the petitioners’ claims for appointment approval.
Issues: Whether the appointments made by the Manager should be approved despite the lack of communication of the protected teachers list prior to the appointments.
Ratio Decidendi: The court held that the lack of a communicated list of protected teachers absolved the Manager of fault in making appointments, validating the petitioners' claims for approval.
Final Decision: The writ petitions were allowed, quashing the rejection orders and approving the teachers' appointments from their respective appointment dates.
JUDGMENT
Both these writ petitions are filed by the respective petitioners who are teachers appointed by the Manager of the fifth respondent school. 2. In W.P.(C) No.564/2009 there are three petitioners. The first petitioner was appointed as H.S.A. (Maths) with effect from 26.7.2005 onwards against a sanctioned post in M.E.S. Higher Secondary School, Sreenarayanapuram, P. Vemballur, Kodungallur. The second petitioner was appointed as H.S.A. (Social Studies) from 28.7.2005 onwards and the third petitioner was appointed as H.S.A. (Maths) from 18.6.2004 onwards. The petitioner in W.P.(C) NO.1916/2009 was appointed as a Sewing Teacher from 22.7.2005.
3. The proposals for approval of appointment of all the petitioners were rejected for identical reason, that the Manager was obliged to appoint only protected teachers. Exts.P1 to P4 in W.P.(C) No.564/2009 are the respective orders passed by the original authority, the appellate authority and the revisional authority, viz. the Government and in W.P.(C) No.1916/2009 the respective orders have been produced as Exts.P1 and P2.
wpc nos.564 & 1916 of 2009 2
4. The contentions of the petitioners are that no list of protected teachers was furnished by the Deputy Director of Education to the Manager and hence the petitioners were appointed. It is pointed out that the Government Order relied upon by the statutory authorities and the Government, viz. G.O.(P) No.178/2002/G.Edn. dated 28.6.2002 (Ext.P5) has been modified by Ext.P7 order dated 24.8.2006 stating that the obligation of the Manager is only to appoint one protected teacher.
5. Exts.P8 to P10 in W.P.(C) No.564/2009 are the orders appointing three protected teachers as H.S.A. in the school. It is averred in the writ petition that the Manager has also submitted an undertaking that he will appoint protected teachers in the arising vacancies in M.E.S. Higher Secondary School, Sreenarayanapuram and accordingly, the appointment of five teachers has been approved as per Exts.P11 to P15 orders, from the dates of their appointment itself. It shows that the appointments are in the posts of Physical Education Teacher, H.S.A. (SS), H.S.A. (Maths), H.S.A. (PS) and H.S.A. (NS). The very same orders are relied upon in W.P.(C) No.1916/2009 also. The petitioners are also relying upon various orders passed by the Government whereby in other schools, approval orders have been granted based on the appointment of protected teachers.
6. Ext.P20 is the judgment in W.P.(C) NO.2583/2008. That relates wpc nos.564 & 1916 of 2009 3 to the very same school wherein the petitioner therein was appointed as a part time Menial from 4.8.2003. This Court found that when there is a failure of the Educational Officers to communicate the list of protected hands, the Manager cannot be faulted for not appointing protected hands. It was also noticed that two protected hands have been appointed in the school by the Manager. Accordingly, this Court directed approval of appointment. Ext.P21 is the judgment in W.P.(C) NO.8039/2009 wherein also a similar view was taken.
7. In the counter affidavit filed by the fourth respondent, the reason mainly pointed out is that as per G.O.(P) No.178/2002/G. Edn. dated 28.6.2002, protected hands had to be appointed. The staff fixation order of the school 2005-2006 was issued only on 18.10.2005. In G.O.(Rt) No.3776/2006/G.Edn. dated 24.8.2006, the Government had directed to include the list of protected teachers to be appointed by the Manager in the arising vacancies in staff fixation order itself. The Manager herein made the appointments prior to the issuance of the staff fixation order, without waiting for the same. In para 7 of the counter affidavit, it is admitted that the Deputy Director of Education, Thrissur deployed three protected teachers in the school as requested by the Manager. It is further stated that the appointment of Shri N.K. Rasheed as Physical Education Teacher as wpc nos.564 & 1916 of 2009 4 well as other teachers, have been appro
