IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30994 of 2005(M)
1. PRABHAKARAN,
... Petitioner
2. BINI P.RAJAM,
Vs
1. THE ASSISTANT EDUCATIONAL OFFICER,
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION,
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
4. STATE OF KERALA,
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :24/03/2010
O R D E R
S. SIRI JAGAN, J
----------------------
W.P.(C.) No.30994 of 2005
---------------------------------
Dated this the 24th day of March 2010
J U D G M E N T
The 1st petitioner is the Manager of an Aided school and the
2nd petitioner is a teacher working in that school. The school is
in a very remote area. The vacancy in which the 2nd petitioner
was appointed was lying vacant for a long period as the vacancy
was to be filled up by appointing a protected teacher as per the
existing government orders. However, since the area where the
school is situated is a remote hilly area, no protected teacher
was willing to work there and therefore, the vacancy could not
be filled up. In the above circumstances, in order to safeguard
the interests of the students of the school, the Manager
appointed the 2nd petitioner in the vacancy available. That was
refused to be approved by the educational authorities, resulting
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in Exts.P9, P10 and P13 orders. The petitioner therefore has
filed this writ petition seeking the following reliefs :-
” i) Issue a writ of certiorari of any other appropriate
writ order or direction quashing Exhibit P9, P10 and
P13.
ii) Issue a writ of mandamus or any other appropriate
writ, order or direction directing the respondents to
approve the appointment of the 2nd petitioner as L.P.S.A.
in the school managed by the 1st petitioner and pay her
the salary from the date of her appointment.
iii) Award to the petitioners the cost of these
proceedings ; and
iv) Grant such other and further reliefs as are just,
proper and necessary or may be prayed for.”
On 10.4.2007 this Court passed the following interim order :-
“Petitioners rely on Ext.P14 order to contend that
approval is now ordered to be granted with effect from
1.2.2006. Complaint is that the salary due as per the
same is, however, not disbursed. Learned Government
Pleader points out that under Clause (iv) of Ext.P14
order, it has to be verified as to whether the
appointment is in accordance with the Act and the
Rules. In such circumstances, there will be a direction
to the first respondent to ascertain whether the
appointment in respect of the second petitioner is in
conformity with the Act and the Rules as contemplated
under Clause (iv) of Ext.p14 and if it is found in
conformity with the Act and the Rules, the amounts due
to second petitioner shall be disbursed to her. A
decision shall be taken in this matter within a period of
three weeks from the date of receipt of a copy of this
Order, and the amounts found due, shall be disbursedW.P.(C) No.30994 of 2005
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to the second petitioner within ten days from the date of
such decision.”
Pursuant thereto, Ext.P15 order has been passed again rejecting
the approval of the 2nd petitioner’s appointment.
2. The contention in the counter affidavit is that the
vacancy being one specifically reserved for a protected teacher,
without appointing a protected teacher, the appointment of the
2nd petitioner cannot be approved.
3. I have considered the rival contentions in detail.
4. Whether a protected teacher or a regular teacher, the
primary object of appointing a teacher is to teach the students.
Certainly, the Government and educational authorities are
entitled to insist that the Manager appoints a protected teacher
as per the government orders in a vacancy reserved for the
purpose. They are also entitled to refuse approval of other
appointments to that vacancy, if the Manager does not appoint a
protected teacher in that vacancy. But that cannot be an end in
itself. There should be a protected teacher available for filling
up to that vacancy. Admittedly, in spite of the appointment of
the protected teachers in that vacancy nobody was willing to
W.P.(C) No.30994 of 2005
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work in that school because of the remoteness of the area where
the school is situated. As such, I am of opinion that the essential
object of appointing a teacher in a school is not fulfilled by the
respondents insisting on filling up the vacancy only with a
protected teacher. The respondents are very well entitled to
direct the Manager to appoint a particular teacher as a protected
teacher in that school. Only if the Manager refuses to do so, the
respondents can impose the sanctions imposable pursuant
thereto. Here admittedly, the Manager is not in the wrong. He
has done what has been dictated by the respondents. But
unfortunately no protected teacher was willing to take charge in
that school. As such I do not think that the Manager can be
found fault with for appointing the 2nd petitioner in the vacancy
which remain unfilled. It is the responsibility of the Manager to
see that there are sufficient teachers to teach the students. He
cannot be compelled to keep the vacancy unfilled because no
protected teacher is willing to join the school. Therefore in view
of the inability of the respondents to see that a protected teacher
takes charge in the school, I am of opinion that in the best
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interest of the students of the school, appointment of the 2nd
petitioner should be approved from the date of her appointment.
Accordingly, I direct the respondents to see that the appointment
of the 2nd petitioner is approved from the date of her original
appointment and monetary benefits arising therefrom disbursed
to the 2nd petitioner as expeditiously as possible, at any rate,
within two months from the date of receipt of a copy of this
judgment. In this connection, I note the contentions of the
learned Government Pleader that the appointment has been
approved with effect from 01.02.2006. If the said submission is
correct, it goes without saying that the balance salary only need
to be paid.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
Jvt