Dispute is with respect to approval of appointment of the petitioner as H.S.A (Malayalam) in the 5th respondent's school, with effect from 01-06-2005. She was appointed against the retirement vacancy of one Sri. K. Gopalan Nair, who was a protected teacher appointed in the 5th respondent's school. Approval of appointment was rejected by the 1st respondent through Ext.P1 stating the reason that the vacancy need to be filled up with a protected teacher as stipulated in G.O (MS) No.123/91, since the school is a newly upgraded one. Appeal filed against Ext.P1 was also rejected by the 2nd respondent stating that the Manager ought to have appointed another protected teacher on the retirement of Sri. K. Gopalan Nair. Further revision before the 3rd respondent was also rejected through Ext.P3 stating that protected teachers under the category was available in the District and by virtue of G.O (P) No.46/2006/G.Edn dated 01-02-2006 the Government have ordered that resultant vacancy of protected teacher consequent to relieve/retirement should be filled up by another protected teacher under the same category. Matter was taken up before the Government in a further revision which was disposed of through Ext.P9 confirming the very same reasons. The petitioner is challenging Exts.P1 to P3 and P9 in this writ petition. Inter alia, direction is sought to approve the appointment of the petitioner as H.S.A (Malayalam) in the 5th respondent's school from 01-06-2005 onwards.
2. It is evident that the 5th respondent had appointed the petitioner in another retirement vacancy of Smt. P. Chandramathi Amma, H.S.A (Malayalam), on 01-06-2000. The appointment was approved on daily wage basis with effect from 13-07-2010 to 31-03-2011 and on a regular basis from 01-06-2011. Approval for the period from 13-07-2010 to 31-03-2011 on daily wage basis, was again subjected to challenge. In Ext.P10 order passed by the 1st respondent it was ultimately decided that the appointment can be approved on a regular basis with effect from 13-07-2010 onwards in terms of G.O (P) No.56/2011/G.Edn dated 26-02- 2011, because the period of appointment extemd over one academic year.
3. In view of approval of the appointment with effect from 13-07-2010 the dispute now remains limited with respect to approval for the period from 01-06-2005 upto 13-07-2010. Insistence for appointment of a protected teachers in the newly established/upgrade schools was introduced by virtue of G.O (MS) No.123/1991/G.Edn dated 05-08-1991. Various subsequent orders are issued by the Government on the subject matter. Later as per G.O (P) No.46/2006/G.Edn, dated 01-02-2006 the Government have taken a decision that schools opened or upgraded during 1990 may be exempted from the condition to appoint protected hands, provided they have satisifed the condition for the appointment of the minimum of one protected teacher. On the basis the Government have issued direction for approval of appointment of various teachers from the date of that order onwards. This court had occasion to consider various issues related to insistence for appointment of protected teachers in the newly established/upgraded schools. In the decision in Nadeera V. State of Kerala (2011 (3) KLT 790) it is held that in G.O (P) No.46/2006 there is no mention about time factor. It was held that availability of protected hands may be delayed and non-availability of protected hand in certain posts may be there. Therefore the Manager cannot be compelled to postpone the appointment of any qualified teacher against a post sanctioned through staff fixation. It will got against the scheme of the Act and the Rules. Exercising powers of the Manager for making appointment in the existing vacancies cannot be said as against the scheme of Act. It is held that postponement of the approval on the plea that the same can be done only from the date of appointment of the protected hand may not be justified. In view of Rule 7 of Chapter XIV-A K.E.R when the Manager had appointed a protected hand in terms of Rule 6 (viii) of Chapter V of K.E.R, there is no enabling provision which allows the educational authority to postpone the approval till a protected hand is appointed, is the findings.
4. The above decision was challenged in appeal before the Division Bench. In State of Kerala V. Nadeera (2013 (2) KLT 88) it was held that what is required as per the circular is that, if a list of protected teachers is forwarded by the Assistant Educational officer concerned to the Deputy Director, which is made available to the Managers, then the Managers have no choice or option than to appoint protected teachers by filling up all the vacancies with protected teachers upto 2006 Government order. After 2006 at least one protected teacher had to be appointed from the said list. What is relevant is the list of protected teachers from other managements will not be available with the schools, where the vacancies existed or arise in future. This information would be available only with the Department. Therefore it is mandatory from the side of the Department to maintain such list and to forward such list to the managements. In the absence of sending such list the guidelines cannot be expected to be implemented by the schools. It is held that the 2009 circular can have only prospective effect and the appointments made earlier cannot be rejected approval.
5. Another Division Bench of this court in Marcia Collin Noronha V. State of Kerala (2014 (3) KLT 300) held that the order of approval relates back to the date of appointment. It is stated that whatever be the date of approval order issued by the statutory authorities, such approval would relate back to the date of appointment and its efficacy will be for the entire period for which the appointment has been made and approved.
6. Learned counsel for the petitioner had pointed out that there is nothing to show that the educational authority had forwarded a list of any protected teachers to the 5th respondent Manager and there is nothing to show that any protected teacher was available in the category in question within the District, at the time when the petitioner was appointed on 01-06-2005. Hence it is contended that the denial of approval of the petitioner as H.S.A with effect from 01-06-2005 cannot be sustained.
7. While considering the issue this court is of the opinion that the matter requires reconsideration at the hands of the Government in view of the changes occurred in settled legal position. It is evident that this court had made interpretation with respect to various Government orders issued on the subject and it remains settled that the obligation of the Manager for appointment of protected teacher is subject to various factors. In the case at hand it is evident that none of such factors were considered while rejecting the claim for approval of appointment of the petitioner from 01-06-2005 onwards.
8. Hence this writ petition is allowed in part and Ext.P9 order passed by the Government is hereby set aside. The matter is remitted for fresh consideration and disposal in view of observations contained herein above. The Government shall pass appropriate orders after affording an opportunity of personal hearing to the petitioner and the 5th respondent Manager, taking note of all settled legal precedents on the subject matter. A fresh decision with respect to approval of appointment of the petitioner from 01-06-2005 till 13-07-2010 shall be taken at the earliest possible, at any rate within a period of 2 months from the date of receipt of a copy of this judgment.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge