Shafeequa Kurumbeth Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE18H DAY OF AUGUST201427TH SRAVANA, 1936 WP(C).No. 2211 of 2014 (B) --------------------------- PETITIONER: -------------------------- SHAFEEQUA KURUMBETH, HSA (MATHS), MIMHSS, PERODE P.O., NADEPURAM, NADAYURAM, KOZHIKODE DISTRICT - 673 504. BY ADV. SRI.POOVAMULLE PARAMBIL ABDUL KAREEM RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 695 014.

3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 001.

4. THE DISTRICT EDUCATIONAL OFFICER, VADEKKARA, KOZHIKODE DISTRICT - 673 101.

5. THEMANAGER, M.I.M.HIGHER SECONDARY SCHOOL P.O.,PERODE, NADAPURAM, KOZHIKODE DISTRICT - 673 504. R1 TO R4 BY GOVERNMENT PLEADER SMT.M.J.RAJASREE R5 BY ADV. SRI.P.M.PAREETH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1808-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WP(C).No. 2211 of 2014 (B) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS: --------------------------------------- EXHIBIT P1. TRUE COPY OF THE APPOINTMENT ORDER

ISSUED BY THE5H RESPONDENT. EXHIBIT P2. TRUE COPY OF THE REJECTION ORDER

DATED3103.2008 OF THE4H RESPONDENT. EXHIBIT P3. TRUE COPY OF THE ORDER

DATED1307.2009 ISSUED BY THE2D RESPONDENT. EXHIBIT P4. TRUE COPY OF THE REVIEW PETITION DATED2206.2011. EXHIBIT P5. TRUE COPY OF THE CLARIFICATION LETTER DATED2502.2012 SENT BY THE4H RESPONDENT TO THE1T RESPONDENT. EXHIBIT P6. TRUE COPY OF THE PROCEEDINGS DATED2212.2004 OF THE5H RESPONDENT. EXHIBIT P7. TRUE COPY OF THE PROCEEDINGS DATED2907.2008 ISSUED BY THE3D RESPONDENT. EXHIBIT P8. TRUE COPY OF THE ORDER

DATED0103.2011 ISSUED BY THE1T RESPONDENT. EXHIBIT P9. TRUE COPY OF THE ORDER

DATED0206/2012 PASSED BY THE1T RESPONDENT. EXHIBIT P10. TRUE COPY OF THE APPOINTMENT ORDER

DATED0908.2012 WITH APPROVAL DATED2209.2012. EXHIBIT P11. TRUE COPY OF THE GO(P) 46/2006/GEN. EDN. DATED0102.2006. EXHIBIT P12. TRUE COPY OF THE JUDGMENT

DATED0302.2011 PASSED BY THIS HON'BLE COURT IN W.P.(C)NO.30613/2008. RESPONDENT(S)' EXHIBITS: ----------------------------------------- N I L /TRUE COPY/ P.A.TO JUDGE Kss A.K.JAYASANKARAN NAMBIAR, J.

............................................................. W.P.(C)No.2211 of 2014 ............................................................. Dated this the 18th day of August, 2014

JUDGMENT

The petitioner has approached this Court through this writ petition aggrieved by the denial of approval to her appointment as HSA (Maths) in M.I.M.H.S.S., Perode, for the period from 01.01.2008 to 31.05.2011. The petitioner was appointed during the aforementioned period against the leave vacancy of Sri.P.K.Abdul Latheef, HSA (Maths), who had proceeded on leave without allowance for a period of 5 years from 09.08.2007. The appointment of the petitioner, when forwarded for approval to the 4th respondent, the latter rejected the claim for approval on the ground that the School in question, being a newly opened School which started functioning during the year 1995-1996, the appointments of teachers could be made only from among protected teachers. The order of the 4th respondent is produced as Ext.P2.

2. It would appear that aggrieved by Ext.P2, the 5th respondent Manager submitted an appeal before the 3rd respondent who rejected the appeal for the same reasons as in Ext.P2 Order. Thereafter, the 5th respondent Manager submitted a revision petition before the 2nd respondent who vide Ext.P3 order W.P.(C)No.2211 of 2014 2 dated 13.07.2009 confirmed the orders of the lower authorities and rejected the request for approval of appointment of the petitioner on the same ground as in the orders of the lower authorities. It is challenging the aforesaid orders that the petitioner has approached this Court through this writ petition.

3. Although, no counter affidavit has been filed on behalf of the Government, the stand taken by the Government is similar to the one taken by them in W.P.(C)No.30130 of 2013 which has been disposed of today through a separate judgment. In short, the stand taken by the Government is that the 5th respondent Manager of the School was obliged to appoint only protected teachers in terms of the mandate in the G.O.(P).No.178/2002/Gen.Edn.dated 28.06.2002. It is not in dispute, however, that during the relevant period, the Government had not furnished any list of protected teachers to the 5th respondent Manager and further that the 5th respondent Manager had not appointed protected teachers to vacancies arising in the School on earlier occasions.

4. On a consideration of the facts and circumstances of the case and taking into account the admitted position that the 5th respondent Manager had in fact complied with the mandate of the Government Order referred to above and had appointed protected W.P.(C)No.2211 of 2014 3 teachers also against earlier vacancies that arose in the School, and further that, at the time of appointing the petitioner against the leave vacancy in question, there was no list of protected teachers, that was made available to the 5th respondent Manager, from which he could effect appointments, the stand of the respondents as evidenced in Exts.P2, P3 and P9 orders cannot be legally sustained. It is relevant, in this connection, to note the decision of this Court in Nadeera v. State of Kerala (2011 (3) KLT790 that was upheld by the Division Bench in the decision reported in State of Kerala v. Nadeera (2013 (2) KLT88. Both these decisions hold the stand of the respondents to be legally flawed. Thus, respectfully following the judgments referred to above, I allow the writ petition by quashing Exts.P2, P3 and P9 orders and directing the 4th respondent to approve the appointment of the petitioner as HSA (Maths) in the M.I.M.H.S.S., Perode for the period from 01.01.2008 to 31.05.2011 and disburse the salary and other allowances due to the petitioner within a period of two months from the date of receipt of a copy of the judgment. The writ petition is allowed as above. A.K.JAYASANKARAN NAMBIAR JUDGE mns/