Shafeequa Kurumbeth vs State of Kerala

A.K. Jayasankaran Nambiar, J.—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.

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 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.

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.

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 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 2011 (3) KHC 650 (Ker) that was upheld by the Division Bench in the decision reported in State of Kerala Vs. Nadeera, . 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.