Allowed

Bujair Ahammed.v v. the State of Kerala and Others

Kerala HC16 Oct 2019WP(C)/594/2011

Case brief

AI extract

What is this about?

Petitioner challenged withholding of salary due to alleged defect in appointment procedure regarding protected teachers. Court held no list was provided to management, thus appointment valid and subsequent cancellation orders unsustainable.

What did the court decide?

Directives Exs. P3, P4 and P5 set aside. Petitioner granted approval in Ext. P1 and all consequential benefits.

Bujair Ahammed.v Vs the State of Kerala and… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941

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WP(C).No.594 OF 2011(Y)

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PETITIONER:

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BUJAIR AHAMMED.V AGED 29 YEARS, S/O.UMMER, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), P.T.M.YATHEEMKHANA HIGHER SECONDARY SCHOOL, P.O.EDAPPALAM, NADUVATTOM, PALAKKAD DISTRICT, PIN-679303.

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BY ADV. SRI.V.A.MUHAMMED

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RESPONDENTS:

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1 THE STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM-695014.

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3 THE ACCOUNTANT GENERAL (A & E) KERALA THIRUVANANTHAPURAM-695039.

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4 THE PERSONAL ASSISTANT TO THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD DISTRICT-679101.

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5 THE MANAGER

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P.T.M.YATHEEMKHANA HIGHER SECONDARY SCHOOL, P.O.EDAPPALAM, NADUVATTOM, PALAKKAD DISTRICT, PIN-679303.

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Wpc No. 594 of 2011

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6 THE HEADMASTER P.T.M.YATHEEMKHANA HIGHER SECONDARY SCHOOL,, P.O.EDAPPALAM, NADUVATTOM, PALAKKAD DISTRICT, PIN-679303.

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R1 BY GOVERNMENT PLEADER

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OTHER PRESENT:

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GP SRI. RON BASTIAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Wpc No. 594 of 2011

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J U D G M E N T

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This writ petition is filed by the petitioner seeking

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the following prayers ;

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i) call for the records relating to Exhibits P4 and Exhibit P5 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order.

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ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 4^th respondent P A to the District Education Officer, Ottappalam to disburse the salary and allowances to the petitioner as High School Assistant (Physical Science) from 1.11.2010 onwards forthwith.

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iii) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.

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Heard the learned counsel for petitioner and

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learned Government Pleader.

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It is submitted by the learned counsel for petitioner that the petitioner was appointed as High School Assistant (Physical Science) in the 5^th respondent school on 18.06.2003. The appointment

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Wpc No. 594 of 2011

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was initially approved by the District Educational Officer with effect from 15.07.2003. An appeal was preferred against the said order and the Deputy Director of Education granted approval with effect from 18.06.2003. Thereafter, by Ext. P3 order, the Additional Director of Public Instruction had directed cancellation of approval already granted to teachers, including the petitioner, on the ground that the school was a newly opened school and that those vacancies have to be filled by appointing protected teachers. Ext. P4 audit query was raised and on the basis of the same, Ext. P5 direction is issued to withhold the salary of the petitioner from November 2010.

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It is submitted by the learned counsel for petitioner that there was no list of protected teachers made available to the Manager, as provided in Ext.P7 Government Order dated 28.06.2002 and that as such, the Manager was under no obligation to have appointed protected teachers. It is submitted that the issue stands squarely covered by the decision of this

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Wpc No. 594 of 2011

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Court including in State of Kerala Vs. Nadeera (2013 (2) KLT 1988) also the various decisions wherein it has been stated that unless a list has been specifically made available to the Manager, the Manager would be under no obligation to appoint protected teachers.

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A counter affidavit has been placed on record on behalf of respondent Nos. 1, 2 and 4. It is stated therein that the petitioner was appointed on 18.06.2003 in the 5^th respondent school, which started functioning in 1995. It is stated that going by Ext. P7 Government Order, all vacancies ought to have been filled up by appointing protected hands. It is further stated that even if there are no protected teachers under the category in the educational district the Manager should have ascertained and confirmed whether there were any protected teachers awaiting deployment elsewhere in the State and appointment should have been made by the Manager. It is stated that there were protected teachers available in other educational districts in Palakkad and that therefore, the

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Wpc No. 594 of 2011

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appointment of the petitioner was not proper.

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I have considered the contentions advanced.

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The counter affidavit filed by the respondents would make it clear that no list of protected teachers had been made available by the Deputy Directior of Education to the Manager of the school as provided in Ext. P7 Government Order. In identical situations, this Court has repeatedly held that, where no list was made available, the Manager was under no obligation to appoint a protected teachers and that appointments made by the Manager should have been approved. In the instant case the petitioner's appointment stood approved with effect from 15.07.2003. The monetary benefits had also been released to the petitioner. It is at this juncture that Ext. P3 has been issued by the Additional Director of Public Instruction.

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In view of the binding decisions of this Court in Nadeera's case and various other judgments the directions issued in Ext. P3 are completely unsustainable. Exts. P3, P4 and P5 are therefore set

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Wpc No. 594 of 2011

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aside. The petitioner will be entitled for approval are

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granted in Ext. P1 and to all consequential benefits.

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The writ petition is ordered accordingly.

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(Sd/-)

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ANU SIVARAMAN JUDGE

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Wpc No. 594 of 2011

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF DATED 18-06-2003/02- 03-2005.
EXHIBIT P2	TRUE COPY OF THE ORDER NO.K.DIS. B5/6574/05 OF THE DISTRICT EDUCATIONAL OFFICER DATED 04/04/2006.
EXHIBIT P3	TRUE COPY OF THE ORDER NO.EM1/64139/06/DPI/D.DIS. OF TH 2ND RESPONDENT DATED 16/11/2006.
EXHIBIT P4	TRUE COPY OF THE AUDIT OBJECTION OF THE ACCOUNTANT GENERAL OF KERALA.
EXHIBIT P5	TRUE COPY OF THE ORDER NO.N.DIS.B5/10354/10 OF THE 4TH RESPONDENT DATED 30/11/2010.
EXHIBIT P6	TRUE COPY OF THE CIRCULAR NO.2/96/G.EDN. OF THE GOVERNMENT DATED 28/03/1996.
EXHIBIT P7	TRUE COPY OF THE GO(P) NO.178/2002/G.EDN. OF THE GOVERNMENT DATED 28/06/2002.
EXHIBIT P8	TRUE COPY OF THE CIRCULAR NO.74101/J2/2004/G.EDN. OF THE GOVERNMENT DATED 24/01/2005.
EXHIBIT P9	TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.2563/2008 DATED 24/09/2008.
EXHIBIT P10	TRU COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.8039/2008-F DATED 01/06/2009.
EXHIBIT P11	TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.18986/2009-P DATED 09/07/2010.
EXHIBIT P12	TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.770/1987 DATED 24/10/1987.
EXHIBIT P13	TRUE COPY OF THE DECISION REPORTED IN 2009 (3) KLT 863 DATED 29/06/2009.

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Wpc No. 594 of 2011

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EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.183/2010 DATED 21/07/2010.

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EXHIBIT P15 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.29151/2009 DATED 04/06/2010.

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// True Copy // PA to Judge

Bujair Ahammed.v v. the State of Kerala and Others

Case brief

What is this about?

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Bujair Ahammed.v v. the State of Kerala and Others

Case brief

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