Kerala High Court
V.Vijayan vs State Of Kerala on 9 March, 1981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938
WP(C).No. 24664 of 2013 (G)
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PETITIONER :
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V.VIJAYAN,
DRAWING TEACHER,
VELAYUDHAN MEMORAIAL HIGHER SECONDARY SCHOOL,
VADAVANNUR, PALAKKAD-678 504.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695 001.
3. DEPUTY DIRECTOR OF EDUCATION,
PALAKKAD-678 001.
4. DISTRICT EDUCATIONAL OFFICER,
PALAKKAD-678 001.
5. MANAGER,
VELAYUDHAN MEMORIAL HIGHER SECONDARY SCHOOL,
VADAVANNUR, PALAKKAD-678 504.
R1 TO R4 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR
R5 BY ADV. SRI.LINDONS C.DAVIS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).No. 24664 of 2013 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1. TRUE COPY OF THE CERTIFICATE DATED 9-3-1981.
P2. TRUE COPIES OF TECHNICAL EXAMINATION CERTIFICATE (4 IN NUMBER)
ISSUED BY THE GOVERNMENT OF TAMIL NADU.
P3. TRUE COPY OF THE APPOINTMENT ORDER DATED 2-6-2008.
P4. TRUE COPY OF THE LETTER DATED 11-6-2008.
P5. TRUE COPY OF THE ORDER DATED 11-5-2009 ISSUED BY THE 4TH
RESPONDENT.
P6. TRUE COPY OF THE APPEAL DATED 25-3-2010 FILE BY THE MANAGER
BEFORE THE 3RD RESPONDENT.
P7. TRUE COPY OF THE ORDER DATED 19-10-2010 ISSUED BY THE 3RD
RESPONDENT.
P8. TRUE COPY OF THE REVISION PETITION DATED 27-7-2011 FILED BY THE
MANAGER BEFORE THE 2ND RESPONDENT.
P9. TRUE COPY OF THE ORDER DATED 26-9-2012 ISSUED BY THE 2ND
RESPONDENT.
P10. TRUE COPY OF THE REVISION PETITION DATED 29-10-2012 FILED BY THE
MANAGER BEFORE THE 1ST RESPONDENT.
P11. TRUE COPY OF G.O. (P) NO. 2656/2013 DATED 28-6-2013.
P12. TRUE COPY OF THE ORDER DATED 3-11-2011 ISSUED BY THE 4TH
RESPONDENT.
P13. TRUE COPY OF THE APPOINTMENT ORDER DATED 1-12-2010.
P14. TRUE COPY OF THE COVERING LETTER.
P15. TRUE COPY OF THE ORDER DATED 5-11-12. ISSUED BY THE 4TH
RESPONDENT.
P16. TRUE COPY OF G.O (P) NO. 320/97/G.EDN. DATED 13-8-1997.
P17. TRUE COPY OF THE APPOINTMENT ORDER DATED 01/4/2016
P18. TRUE COPY OF THE COMMUNICATION DATED 8/4/2016 ISSUED BY THE
MANAGER OF THE SCHOOL TO THE DEO
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
sts P.S.TO JUDGE
ANU SIVARAMAN, J.
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W.P(C).No. 24664 of 2013
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Dated this the 7th November, 2016
JUDGMENT
The prayer in this writ petition is for a direction to the respondents to approve the appointment of the petitioner as drawing teacher in the High School section of the 5th respondent's School from 2.6.2008. The petitioner was appointed as drawing teacher in a voluntary retirement vacancy by Exhibit P3 order dated 2.6.2008. Approval for the said appointment was rejected by Exhibit P5 order dated 11.5.2009 on the ground that the appointment was made against the voluntary retirement vacancy of one A.V.Binsa and the Government had, by order dated 5.8.2008, rejected the application for voluntary retirement submitted by the said teacher. By Exhibit P7, the Deputy Director of Education upheld Exhibit P5 order.
2. It was pointed out that the teacher who had requested for voluntary retirement had availed leave from 30.3.2007 to 1.3.2009. In Exhibit P9 order dated 26.9.2012, the Director of Public Instruction found that there was sufficient vacancy from 2.6.2008 to accommodate the petitioner, since the Government had sanctioned the leave without allowance and the request for voluntary retirement submitted by Smt.Binsa. However, it was further stated that the petitioner was not qualified to be appointed as drawing teacher as per WP(C).24664/13 2 the Kerala Education Rules and the appointment was also bad, since there was no protected teacher appointed in the school.
3. Heard learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
4. The petitioner has produced Exhibits P1 and P2 to show that he has qualification equivalent to SSLC and Group Diploma in Drawing. Technical Examination Certificates issued by the State of Tamil Nadu are produced as Exhibit P2. It is stated that this qualification is equivalent to KGTE and MGTE prescribed in Chapter XXXI KER as well as the orders equalising qualification. It is stated that Exhibit P2 is evidently granted after undergoing the requisite training in all subjects as provided in the Government orders under the Kerala Education Rules. With regard to the contention that the appointment of the petitioner was bad for want of appointment of protected teacher, the petitioner relies on a decision of this Court reported in State of Kerala v. Nadeera [2013(2) KLT 88] to contend that in a case where no list of protected teacher had been forwarded by the Deputy Director of Education, the Manager has no obligation to fill up the vacancy with a protected hand. The petitioner contends that his appointment as drawing teacher from 2.6.2008 is liable to be approved.
5. A counter affidavit has been filed on behalf of the 4th respondent contending that the appointment of the petitioner as WP(C).24664/13 3 drawing teacher was by promotion from the post of peon. It is contended that though the approval was rejected, the Manager had appointed the petitioner with effect from 1.12.2010 against a retirement vacancy. It is contended that the qualification of the petitioner is Technical Examination Certificate (Higher Grade) of the State of Tamil Nadu and is not MGTE as provided in the Kerala Education Rules and the Government orders. It is further stated that the petitioner had acquired the qualification through correspondence course and such qualification will not be considered. It is further stated that the appointment was bad, since no protected teacher was working in the school at the relevant time.
6. I have considered the contentions advanced. Since the date of appointment of the petitioner being on 2.6.2008, it is contended that the dictum laid down in Nadeera's case (supra) squarely applies to the petitioner's case. As such, the appointment of the petitioner is liable to be approved without reference to the contention that there was no protected hand working in the school at the time. I have gone through the provisions of Chapter XXXI KER as well as the orders prescribing the qualifications for the post of drawing teachers in High Schools. Nowhere in any of the orders is there a prescription that the qualification of Group Diploma in Drawing should be one acquired after a regular study. In the above circumstances, the contention raised in WP(C).24664/13 4 the counter affidavit to the effect that the certificate is one acquired through correspondence course cannot be pressed into service by the respondents to decline approval.
7. With regard to the contention that Exhibit P2 is not a prescribed qualification, learned counsel for the petitioner would place reliance on Exhibit P16 circular to contend that Exhibit P2 is a certificate issued by the Government of Tamil Nadu and a perusal of the same would make it clear that it is actually only the change in name for the MGTE certificate which was being issued by the erstwhile Madras Government. It is also contended that the certificate would go to show that the syllabus of the KGTE certificate issued by the Kerala Government is identical to the syllabus covered by Exhibit P2. This aspect of the matter, according to me, has not gained the attention of the educational authorities while the orders impugned were rendered. I am of the view that the question of equivalency or adequacy of the petitioner's qualification has to be examined by the Government.
8. The petitioner further submits that with effect from 1.4.2016 the petitioner has been accommodated as Clerk in the 5th respondent's school in a retirement vacancy. It is contended that approval of the said appointment has not been considered by the 4th respondent in view of the pendency of this writ petition. The petitioner contends that he is limiting his claim for approval of appointment in the post of WP(C).24664/13 5 drawing teacher for the period from 2.6.2008 to 31.3.2016. With effect from the date of Exhibit P17 order of appointment the petitioner claims approval of appointment as clerk in a regular retirement vacancy.
9. The 4th respondent is directed to consider and pass orders on Exhibit P17 appointment order and Exhibit P18 proposal forwarded by the 5th respondent Manager within one month from the date of receipt of a copy of this judgment. In the above circumstances, Exhibits P5, P7, P9, P11 and P15 are set aside. The Government shall also consider whether the qualification possessed by the petitioner as evidenced by Exhibit P2 is equivalent to KGTE/MGTE and pass orders thereon after putting the petitioner on notice and after hearing him within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall be free to produce all relevant material relied on by him before the Government at the time of hearing. A reasoned and speaking order shall be issued by the Government. If the said qualification is found to be equivalent or sufficient qualification, orders shall be passed approving the petitioner's appointment as drawing teacher from 2.6.2008.
The writ petition is disposed of as above.
ANU SIVARAMAN JUDGE vgs7/11