Kerala High Court
Arun V vs The State Of Kerala on 29 October, 2012
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY,THE 10TH DAY OF MARCH 2014/19TH PHALGUNA, 1935
WP(C).No. 6516 of 2014 (L)
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PETITIONER :
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ARUN V.,
S/O. R. VIJAYAN PILLAI
AMBAZAHAVELIL HOUSE, EDAMATTOM P.O.,
KOTTAYAM (LOWER PRIMARY SCHOOL ASSISTANT
KRISHNA VILASAM SOUTH (KVS)
LOWER PRIMARY SCHOOL, ELANGULAM).
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENT(S) :
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1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTION
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION
THIRUVANANTHAPURAM - 695 001.
3. THE DEPUTY DIRECTOR (EDUCATION)
OFFICE OF THE DEPUTY DIRECTOR (EDUCATION)
KOTTAYAM - 686 001.
4. THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER
KANJIRAPPALLY- 686 501.
5. THE ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER
KANJIRAPPALLY- 686 501.
6. THE MANAGER
KRISHNA VILASAM SOUTH (KVS) LOWER PRIMARY SCHOOL
ELAMKULAM, NARIYANANI P.O., KOTTAYAM - 686 506.
R1 TO R5 BY SR. GOVT. PLEADER SRI. M.A. FAYAZ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10-03-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mn
...2/-
WP(C).No. 6516 of 2014 (L)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF THE APPOINTMENT ORDER DATED 29/10/2012 THUS ISSUED
BY RESPONDENT NO. 6.
EXT.P2 COPY OF THE ORDER BEARING NO. G/7273/2012/K.DIS DATED
9/11/2012 ISSUED BY RESPONDENT NO. 5 REJECTING EXT.P1
APPOINTMENT ORDER.
EXT.P3 COPY OF THE ORDER NO. B1/10110/2012/K.DIS DATED 31/12/2012
ISSUED BY RESPONDENT NO. 4.
EXT.P4 COPY OF THE GOVERNMENT CIRCULAR DATED 10/5/2012.
EXT.P5 COPY OF THE COMMUNICATION BEARING B/460/2013 DATED
19/2/2013 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE
OFFICE OF RESPONDENT NO. 3.
EXT.P5(a) COPY OF JUDGMENT DATED 11/2/2014 IN WA NO. 596/2012 AND
CONNECTED MATTER PASSED BY THIS HON'BLE COURT.
EXT.P6 COPY OF THE REVISION PETITION DATED 5/2/2013 SUBMITTED BY
RESPONDENT NO. 6 BEFORE RESPONDENT NO. 1.
EXT.P7 COPY OF THE REVISION PETITION DATED 28/2/2013 SUBMITTED BY
THE PETITIONER BEFORE RESPONDENT NO. 1.
EXT.P8 COPY OF THE REVISION PETITION DATED 15/10/2013 SUBMITTED BY
THE PETITIONER BEFORE RESPONDENT NO. 1.
EXT.P9 COPY OF THE JUDGMENT DATED 29/10/2013 PASSED BY THIS
HON'BLE COURT IN WP(C) NO. 26413/2013 (B).
EXT.P10 COPY OF THE ORDER BEARING GO (RT) NO. 5394/2013/G.EDN. DATED
11/12/2013 PASSED BY RESPONDENT NO. 1.
(Contd...)
WP(C).No. 6516 of 2014 (L)
EXT.P11 COPY OF THE REVISED STAFF FIXATION ORDER 2010-2011 DATED
28/3/2011 OF KVS LP SCHOOL, ELAMKULAM ISSUED BY
RESPONDENT NO. 5.
EXT.P12 COPY OF THE ORDER BEARING GO (MS) NO. 92/10/G.EDN. DATED
4/6/2010.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
C.K. ABDUL REHIM, J.
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W.P.(c) No. 6516 OF 2014-L
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DATED THIS THE 10th DAY OF MARCH, 2014.
J U D G M E N T
The petitioner was appointed as Lower Primary School Assistant (LPSA) in 6th respondent's school during the academic year 2010-2011, against a regular vacancy which arose consequent to abolition of the shift system. Approval of the appointment was rejected by respondents 4 & 5 for the reason that the said vacancy ought to have been filled up with protected teacher. The Manager had submitted a declaration on the basis of G.O (MS) No.258/90/G.Edn dated 15-12-1990 to the effect that, there was no retrenched teacher available who is eligible to be accommodated against the said vacancy. It is the specific case of the petitioner that there was no protected teacher available in the District in question. Ext.P5 letter was produced in support of the above contention. It is also contended that no list of protected teachers was ever made available to the Manager by the educational officer at any time before the appointment was made. Therefore the petitioner filed a W.P.(c) No.6516/2014 -2- revision petition before the Government and approached this court seeking direction for consideration of the matter on an early basis. In Ext.P9 judgment this court directed the 1st respondent to consider the claim of the petitioner and to pass orders on revision petition submitted, in accordance with law, taking into consideration of the contentions as well as the applicability of decisions of this court in Moosakutty V. D.E.O, Wandoor (2009 (3) KLT 863), Nadeera V. State of Kerala (2011 (3) KLT 790) & State of Kerala V. Haseena and others (ILR 2013 (2) Ker.108).
2. Exhibit P10 is the consequential order issued by the 1st respondent. The revision petition was dismissed rejecting approval of the appointment stating that it is violative of the directions contained in G.O (MS) No.92/10/G.Edn dated 04-06-2010 directing to fill up the posts arising out of abolition of the shift system by recruiting protected teachers. Contention that no protected teacher was available in the District was discarded stating W.P.(c) No.6516/2014 -3- that the petitioner has not produced any evidence to establish that no protected teacher was available in any of the Districts within the State. It is aggrieved by Ext.P12, this writ petition is filed.
3. Contention of the petitioner is that the reason mentioned in the impugned order is against settled legal principles. Learned counsel for the petitioner had drawn attention of this court to the decisions cited above, as well as Ext.P5 (a) judgment rendered by a Division Bench of this court. It is pointed out that the legal position remaining settled is to the effect that, the Department has to communicate list of protected teachers to the Manager concerned, thereby making it obligatory on the part of Manager to make appointment out of that list. On failure, the Manager does not have any liability to be saddled with responsibility to get the list from the Department and to make the appointments.
4. It is pertinent to note that, despite specific directions issued by this court in Ext.P9 judgment to W.P.(c) No.6516/2014 -4- consider the legal position remaining settled, the 1st respondent had failed to ascertain as to whether the Manager was provided with any list of the protected teachers, by the educational officer. Stand taken to the effect that it was the burden of the petitioner/Manager to prove that no protected teacher was available within the District or the State, is patently against the dictum laid in the decisions mentioned above. Resultantly the view taken in Ext.P10 cannot be accepted. In view of the specific directions contained in Ext.P9 judgment it cannot be upheld that the 1st respondent had considered the matter in a proper perspective based on the observations contained in Ext.P9. Therefore this court is of the considered opinion that Ext.P10 needs re-consideration and a fresh decision has to be arrived taking into consideration of the legal position remaining settled.
5. In the result, the writ petition is allowed and Ext.P10 is hereby quashed. The matter is remitted for fresh decision of the 1st respondent. The 1st respondent will take W.P.(c) No.6516/2014 -5- up the revision petition and dispose of the same afresh, taking note of the observations contained herein above and considering the legal position remaining settled. A fresh decision in this regard shall be taken after affording opportunity of personal hearing to the petitioner and the Manager, at the earliest possible, at any rate within a period of 2 months from the date of receipt of a copy of this judgment.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge