Kerala High Court
Biju.S vs The Secretary To Government on 12 August, 2009
Bench: K.Balakrishnan Nair, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 270 of 2009()
1. BIJU.S, AGED 36 YEARS,
... Petitioner
2. MUSTAFA.M.T,
Vs
1. THE SECRETARY TO GOVERNMENT,
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE DISTRICT EDUCATIONAL OFFICER,
5. THE MANAGER,
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :12/08/2009
O R D E R
' C.R.'
K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.
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W.A. No. 270 OF 2009
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Dated this the 12th day of August, 2009
J U D G M E N T
Balakrishnan Nair, J.
The writ petitioners are the appellants. They were appointed as full-time Menials in the 5th respondent's school. Non- approval of their appointments on the ground of non- accommodation of the existing protected hands was the subject- matter of the writ petition.
2. The brief facts of the case are the following:-
The 1st appellant was appointed as full-time Menial with effect from 20.9.2002. The 2nd appellant was appointed as full- time Menial in a leave vacancy from 16.9.2002 to 18.4.2003. Later, the 2nd appellant was appointed against a permanent vacancy with effect from 1.7.2003. The Manager sent proposals for approval of their appointments to the District Educational Officer. They were rejected by Exts.P2 series orders. Appeals against those orders, filed before the Deputy Director of WA.270/09 : 2 : Education, were rejected by Ext.P3 series orders and revisions before the Director of Public Instruction were rejected by Ext.P4 series orders. The matter was carried in revision before the Government. Those petitions were rejected by the Government by Exts.P6 and P6(a) orders. Challenging the above orders, the writ petition was filed.
3. The appellants contended before the learned single Judge that approval of their appointments was denied, relying on Exts.P7 and P8 Government Orders. According to them, those orders have no application to Full-time Menials, but will apply only to teachers. The 1st respondent filed a counter affidavit, pointing out that all benefits of protection available to teachers were extended to non-teaching staff also and similarly, the Managers of newly opened/upgraded schools were liable to accommodate the protected non-teaching staff also, apart from protected teachers. The Manager got upgradation of his school by executing an agreement under Rule 6 (viii) of Chapter V of the Kerala Education Rules(for short "the KER"). Therefore, in violation of the said undertaking, the appointments were made. So, the 1st respondent supported the impugned orders. The 5th respondent Manager filed WA.270/09 : 3 : a counter affidavit, supporting the appellants. The learned single Judge, after hearing both sides, held that in view of Exts.P7 and P8 orders, the Manager was bound to accommodate the protected hands. The contention that those orders do not apply to non-teaching staff was overruled and the writ petition was dismissed.
4. Challenging the above judgment, this appeal is filed. Sri.V.A.Mohammed, learned counsel for the appellants, submitted that the obligation to accommodate protected hands arises if only the Deputy Director of Education concerned informs the Manager of the existence of protected hands in relation to the vacant posts. Special reference was made to paragraph (i) of Ext.P7(G.O.(P) 178/2002/G.Edn. dated 28.6.2002), which is an order governing the deployment of protected teachers. The said paragraph reads as follows:-
" (i). The managements of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. The Deputy Director of Education concerned shall WA.270/09 : 4 : make available district-wise and category wise list of protected teachers on the basis of total length of service to be so appointed to the Managers."
5. According to the learned counsel for the appellants, in this case, there was non-intimation from the Deputy Director regarding the existence of protected Menials and, therefore, the appointments were rightly made. In support of the said submission, the learned counsel relied on a decision of this Court in Anilkumar R. Vs. State of Kerala & Others [2009 (2) KLJ 402].
6. We considered the submissions of the learned counsel and went through the pleadings and materials on record. Even assuming the Deputy Director has an obligation to inform the Manager regarding the existence of protected hands, we notice that the appellants do not have any such case in the writ petition or in their pleadings in the exhibited documents. They have not urged this ground before the learned Single Judge also. Whether any intimation has been given by the Deputy Director or not is, essentially, a question of fact. So, a point not raised in the writ WA.270/09 : 5 : petition nor argued before the learned Single Judge cannot be allowed to be canvassed in the Writ Appeal. Further, we notice that the interpretation sought to be given to an isolated sentence in Ext.P7 by the appellants cannot be upheld also. It is like missing the wood for the trees. The vacancies in aided schools are filled up by deployment of protected hands by the Deputy Director of Education. There is no practice of a list being furnished by the Deputy Director and the Manager making appointment from it and then forwarding the proposal for approval of such appointments etc. Normally, the list of protected teachers to be deployed will be prepared and maintained by the Deputy Director and the Managers, before making fresh appointment in a vacancy, should ascertain whether any protected hand is available to be accommodated in that vacancy. Only after ascertaining that, he can make any fresh appointment. If there is a vacancy, the Manager has to inform about the vacancy to the Deputy Director, so that the said officer can make deployment of the protected teacher or non-teaching staff. If the interpretation given by the learned Single Judge in the decision cited before us, is accepted, the liability of the Manager under the Rules to accommodate WA.270/09 : 6 : protected hands can be easily subverted on the ground of default from the part of the Deputy Director. Such an interpretation of Ext.P7 is against public interest. So, we are of the view that the decision of the learned Single Judge cited by the learned counsel for the appellants does not lay down the correct legal position. From the counter affidavit filed by the 1st respondent, we notice that in Malappuram district, there were two protected Menials awaiting appointment. Therefore, the Manager could not have made appointment from the open market, in view of the agreement executed by him under Rule 6(viii) of Chapter V of the KER. So, the request for approval of appointments of the appellants was rightly rejected by the departmental officers and the Government.
In the result, the Writ Appeal fails and it is dismissed.
Sd/-
(K.BALAKRISHNAN NAIR, JUDGE) Sd/-
(P.S.GOPINATHAN, JUDGE) aks // True Copy // P.A. to Judge