STATE OF KERALA Vs. NADEERA

JUDGEMENT

(1.) THESE two Writ Appeals are taken up for consideration together, as they arise out of a common judgment dated 4.8.2011 of the learned Single Judge. It is not in dispute that the party respondents/writ petitioners were appointed against a clear vacancy as early as in 2005 as High School Assistants in Mathematics and Natural Science. It is also not in dispute that though they were appointed as early as in 2005, approval of their appointments came to be done only with effect from 1.6.2010. The grievance of the writ petitioners was, as they were appointed against a regular vacancy by the Manager of the respondent School, for no fault of theirs, there cannot be postponement of their approval from the actual date of appointment in the year 2005. So far as the stand of the Government was, as and when the vacancy arises or in the vacancy already existing, the Manager should appoint atleast one protected teacher in the vacancy, therefore, according to the stand of the Government, in the absence of not appointing protected teachers, approval of appointment of regular teacher has to be postponed and it can only be from the date on which a protected teacher is appointed. This stand of the Government was mainly on account of Government order dated 19.11.2009. As against this, the stand of the writ petitioners was, till Government order dated 19.11.2009 came into existence, there was no compulsion as indicated in the Government order to appoint atleast one protected teacher in the vacancy available in the schools and otherwise, the regularly appointed teachers' approval will be postponed. Therefore, in the absence of any such compulsion on the part of the Managers of aided schools, the appointments, which were done in 2005 cannot be frustrated by postponing the date of approval to a future date.

(2.) AFTER going through all the Government orders and the facts in the present two cases, the learned Single Judge opined that neither the Managers nor the writ petitioners could be found fault with for not appointing any protected teacher against clear vacancy in 2005, as a duty was cast on the officers of the Education Department to send the list of protected teachers of the schools concerned, so that the Managers could comply with the undertaking given to the Government as per Rule 6(viii) of Chapter V of the Kerala Education Rules. Against this judgment of the learned Single Judge, the Government is in appeals before us contending that there is an obligation on the part of the Managers to follow the directions issued by the Government from time to time by securing the list of protected teachers, so that the existing vacancies would be filled up by the protected hands.

(3.) THE relevant Government orders which came up for consideration before the learned Single Judge were Exhibits P10 and P7 Government orders of 2002 and 2006 respectively and the judgments referring to these two Government orders are at Exhibits P12 to P15. Before we take up these two relevant Government orders, Exhibits P7 and P10, it is pertinent to mention that as per G.O.(Ms).No.123/91/G.Edn. dated 5.8.1991, on account of decrease in the number of protected teachers, the Managers of aided schools were permitted to call for applications for appointments without appointing protected teachers. By G.O (Ms).No.347/98/G.Edn dated 1.9.1998, the department came out with another direction, wherein they indicated that all the vacancies arising in the schools newly opened had to be filled up by protected teachers only. Later on in 2002, as referred above, G.O.(P).No.178/02/G.Edn. dated 28.6.2002 was issued, wherein the Government issued guidelines for the redeployment of protected teachers. The Managers of newly opened or upgraded aided schools were directed to fill up all the existing/arising vacancies in these schools only by appointing protected teachers. It was further directed that the Deputy Directors of Education concerned shall make available to the managers, district-wise and category-wise list of protected teachers on the basis of total length of service of teachers to be so appointed. Exhibit P11 circular is dated 24.1.2005, wherein the Government directed the Managers to comply with the instructions in strict sense given under this Government order. So far as this circular is concerned, the emphasis was instructions to the Educational Officers how they should draw the list of protected teachers and send it to various schools in order to comply with the earlier guidelines issued in the year 2002. Apart from this Exhibit P11, there is another relevant notification, i.e., Exhibit P7 G.O.(P). No.46/06/G.Edn dated 1.2.2006. There is yet another notification, i.e., G.O.(Rt).No.3776/06/G.Edn dated 24.8.2006, wherein anguish was expressed by the Government in not adhering to earlier directions to fill up the vacancies with protected hands. Therefore, they came up with the above said Government order dated 24.8.2006. Paragraphs 2 and 3 of the above Government order are relevant, which read as under: