The petitioner, who is an HSA in Hindi, has approached this Court with the grievance that her appointment was approved only from 1.2.2006 though she was appointed with effect from 6.6.2001. 2. The petitioner alleges that she was appointed HSA (Hindi) with effect from 6.6.2001 by the third respondent against the retirement vacancy. Previously, she was appointed as HSA Hindi from 3.10.2000 to 31.12.2000 against a leave vacancy. The second respondent rejected the request for approval of the appointment of the petitioner by order dated 8.1.2002 stating that the appointment cannot be approved as the third respondent is bound to appoint a protected teacher.
3. The petitioner alleges that there was no protected teacher in the subject and therefore, the Manager was at liberty to appoint HSA (Language) in the absence of a protected teacher.
4. The petitioner also alleges that the Educational Officer had approved all previous appointment of the teachers notwithstanding Rule 6 (vii) of Chapter V of the K.E.R. introduced as per notification dated 2.5.1979. Therefore, according to the petitioner, the educational authorities should not have rejected the request of the petitioner for approval of the petitioner from 6.6.2001.
5. The petitioner further alleges that the 5th respondent had offered to give an undertaking to appoint protected teacher in the next arising vacancy. In such circumstances, he filed a revision before the first respondent under Rule 92 Chapter XIVA of Kerala Education Rules and pursuant to Ext.P1, the first respondent passed orders rejecting the revision petition against the order refusing approval of appointment of the petitioner from 6.6.2001 on the very same ground. However, pursuant to Ext.P2, Government of Kerala issued an order dated 1.2.2006 directing to approve the appointment of the teachers from the date of the order in all such cases where approval was pending due to the condition that the school has not appointed protected teachers. Accordingly, the appointment of the petitioner was approved from 1.2.2006. The petitioner alleges that this is wrong as she was appointed with effect from 6.6.2001. It is with this background the petitioner has come up before this Court.
6. In a detailed counter affidavit filed by the respondent State, they have contended that the petitioner's appointment was rejected as the Manager was bound to fill up the arising vacancies of protected hands as it was a newly opened school after 1979. According to the respondents, the petitioner's claim cannot override the terms of G.O.P.No.123/91 dated 5.8.1991 and that is why the Deputy Director of Education did not consider the appointment for approval. According to them, as the Manager was bound to appoint a protected teacher in the first arising vacancy and as the 5th respondent has not taken any necessary action in the matter and appointed a fresh hand, the petitioner's case could not be considered.
7. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader in the matter quite in extenso.
8. The learned Senior Government Pleader inviting my attention to Ext.P2 would submit that at the time of appointment of the petitioner, there were five protected hands waiting for appointment. According to the learned Senior Government Pleader, the 5th respondent who was the Manager was bound to fill up the then existing vacancies of the Protected teachers on the basis of the agreement entered into between the Manager and the Government.
9. Admittedly, the petitioner was appointed as HSA (Hindi) in the school of the 5th respondent with effect from 6.6.2001 against a retirement vacancy. The approval was rejected by the Educational Officer on the ground that the Manager was bound to appoint a protected teacher as the school is a newly opened school after 22.5.1979.
10. The petitioner's case is that as there was no protected teacher, the Manager of the school was at liberty to appoint an HSA in the subject available in the district. However, it can be seen from the matters placed on record that there were five protected teachers awaiting appointment. But the fact remains that the respondents do not have a case that the list of protected teachers were made available to the 5th respondent so that he could make appointment from the said list.
11. A Division Bench of this Court in State of Kerala and others V Haseena and another (2013(2) KHC 103 has observed that the authorities, who gave the guidelines from time to time were also required to see that necessary material or list of protected teachers available with them was sent to various schools to reduce the misery of protected teachers. Having not done so, without taking action against those officials, who did not care to see that their guidelines are implemented, shifting the disadvantage to the regularly appointed teachers is unreasonable and arbitrary.
12. Here, in this case, the Government approved the appointment of the petitioner but with effect from a subsequent date. When the Manager exercised his power to make appointment in terms of staff fixation order and when a qualified person was appointed in terms of the staff fixation order, the approval of protected teachers cannot be postponed to the date of appointment of the protected hand. It is the settled law and its position has been upheld by this Court in number of cases.
13. It is also relevant to note that the same principle has been followed by the Government while issuing Ext.P9 which was produced before this Court. That is the reason why the petitioner approached the second respondent in Ext.P10 requesting to approve her appointment as HSA Hindi from 6.6.2001 to 31.1.2006 seeking the benefit of the judgment of this Court. However, respondents 1 and 2 had not considered Ext.P10 in the correct perspective.
14. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is entitled to succeed and to get a relief as prayed for.
In the result, this writ petition is allowed. Exts.P2, P4 and P5 are quashed. The second respondent is directed to approve the appointment of the petitioner with effect from 6.6.2001 which is the date of actual appointment.
Formal orders to this effect shall be issued within a period of three months from the date of receipt of a copy of this judgment.
sd/-A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE