ANIL S.V v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 19 [ TH ] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 ``` ## **`WP(C) NO. 21195 OF 2022`** ``` PETITIONER/S: ``` ``` ANIL S.V AGED 50 YEARS S/O. SUKUMARAN P., KALYANI NIKETHAN, KOTTUKAL PO, THIRUVANANTHAPURAM-695 501. (CLERK, DEVASWOM BOARD HIGHER SECONDARY SCHOOL, CHERIYANADU) BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001. 2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY THE DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM 695 001. 3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY - 686507. 4 THE CORPORATE MANAGER/SECRETARY, TRAVANCORE DEVASWOM BOARD SCHOOLS, TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS, NANTHANCODE, THIRUVANANTHAPURAM-695033. BY SRI. G. BIJU, S.C., TRAVANCORE DEWASWOM BOARD SMT. NISHA BOSE, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 21195 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The petitioner states that he is working as Clerk in the Devaswom Board Higher Secondary School, Cheriyanadu, an aided School managed by the 4th respondent and governed by the provisions of the Kerala Education Act and the Rules framed thereunder. 2. Instant writ petition has been filed seeking issuance of directions to the respondents 1 to 3 to grant approval to the appointment by promotion of the petitioner by Exhibit P1 order as Clerk in recognition of his statutory right under Rule 43 of Chapter XIV A read with Rule 7 of Chapter XIV B of the Kerala Education Rules and also for a further direction to the respondents to sanction and disburse the salary and allowances with effect from the date of appointment. 3. The petitioner contends that he entered aided school service as Full Time Menial (FTM) on 03.05.2002 in the Devaswom Board Higher Secondary School, Thakazhi. The said appointment stands approved by the competent District Educational Officer. Thereafter, he got promoted as Peon/Office Attendant with effect from 29.05.2009 onwards and posted in Devaswom Board Higher Secondary School, Parumala. The said appointment was also approved by the DEO and he was disbursed with salary and allowances. While the petitioner was working as aforesaid, he ``` WP(C) NO. 21195 OF 2022 ``` ``` 3 ``` was promoted and appointed as Clerk in the Devaswom Board Higher Secondary School, Erumely, in a retirement vacancy as per Ext.P1 proceedings of the 4th respondent. The petitioner contends that the promotion granted to the petitioner was rejected by Ext.P2 order on the ground that the school was not having the sufficient number of students and is an uneconomic school. Though pending grant of the approval, the petitioner submitted an application to disburse the lower scale of salary of Peon/Office Attendant, the same was turned down by Exhibit Ext.P4 order. 4. The petitioner contends that the very same issue had earlier engaged the attention of this Court and a learned Single Judge of this Court in **Bipin Pavithran and Another v. State of Kerala and Others** [2021 (2) KHC 515] had held that denial of approval of the appointment of the petitioner therein as a Peon on the ground that the school is an “uneconomic one” was improper as the post of Peon was mandatory in every School whether or not it has sufficient students. 5. **Bipin Pavithran** (Supra) was challenged by the Government by preferring Writ Appeal Nos.1346 of 2021 and their Lordships of the Division Bench by exhibit P6 judgment had upheld the findings of the Learned Single Judge holding that the post of Peon/Office Attendant was not one which was likely to be abolished in any staff fixation since the post ``` WP(C) NO. 21195 OF 2022 ``` ``` 4 ``` itself is one that is statutorily envisaged irrespective of the student strength in the School concerned. It was held that the Government Orders based on which the claims are rejected cannot override the clear statutory provisions. 6. It is in the above backdrop that the petitioner is before this Court seeking the following reliefs: - “i) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 3 to grant approval to the appointment by promotion of the petitioner by Ext. P1 Order as Clerk in Devaswom Board High School, Erumely from the approved post of Peon/Office Attendant to the sanctioned retirement vacancy of Clerk in recognition of statutory right under Rule 43 of Chapter XIV A read with Rule 7 of Chapter XXIV B KER in the light of Exhibits-P5 to P8 rulings of this Hon’ble Court forthwith or within such time as this Hon’ble Court may deem fit and proper in the interest of justice; - ii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 3 to sanction and disburse salary and allowances to the petitioner in the post of Clerk in Devaswom Board High School, Erumely with effect from the date of appointment onwards in the light of Exhibits P5 to P8 rulings of this Hon’ble Court forthwith or within such time as this Hon’ble Court may deem fit and proper in the interest of justice; - iii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exts.P2 and P4 orders issued by respondent No. 3.” ``` WP(C) NO. 21195 OF 2022 ``` ``` 5 ``` 7. I have heard Sri. S.Subhash Chand, the learned counsel appearing for the petitioner and the learned Government Pleader. 8. Having considered the submissions advanced and on a perusal of the records, I am of the view that the principles laid down in **Bipin Pavithran** (Supra) as upheld by the Division Bench would apply on all fours in the case of the petitioner as well. The only reason stated in the impugned order passed by the respondents to deny promotion to the petitioner in recognition of their statutory right under Rule 43 of Chapter XIV A of the KER is that the School in which the petitioner was working was an uneconomic School. While deciding the very same issue, a Division Bench of this Court in the common judgment dated 10.11.2021 in Writ Appeal No.1346 of 2021 and connected cases had held thus in paragraphs Nos.6 to 8 of the judgment: “6. We have given our anxious consideration to the submissions of the learned Government Pleader but find ourselves unable to accept the said contentions for the following reasons. Firstly, we find that unlike in the case of teaching staff, the provisions of Chapter XXIV B, read with Chapter XXIV A of the KER, mandate that in every Upper Primary School there can be appointed in the non-teaching establishment of such school one Peon (subsequently re-designated as Office Attendant). It is also discernible from the provisions of the KER that under certain circumstances, where the number of students exceeds a particular strength, an additional post of Peon can be sanctioned in ``` WP(C) NO. 21195 OF 2022 ``` ``` 6 ``` Aided High Schools in the State. Inasmuch as we are in these Writ Appeals concerned only with Upper Primary Schools, the said provision pertaining to High Schools may not have any relevance. We thought it necessary to refer to the said provisions only because the learned Government Pleader brought to our notice two earlier Government Orders G.O.(MS) No-179/94/G. Edn. dated 20.10.1994 and G.O (MS) No.487/95/G. Edn. Dated 26.09.1995, both of which deal with the situation of closing down of uneconomic schools in the State and the retention of posts of teachers and non-teaching staff in such situations. A perusal of the Government Orders clearly reveals that the Government having examined the matter found that in lieu of ousting the teaching and non-teaching staff from their posts consequent to the school being declared uneconomic, as a special case they could be retained in the respective schools subject to the condition that, if any of the post which are likely to be abolished in staff fixation in the school fall vacant in the said school, that post should not be filled up on any account. Even assuming that the said Government Orders still hold the field and govern the appointment of non-teaching staff in uneconomic Aided U.P Schools in the State, we are of the view that the said Government Orders can have application only when the appointment made is to a vacancy in a post that is likely to be abolished in staff fixation in the particular school. As already noted, in the instant cases, the posts of Peon/Office Attendant were not such as were likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the school concerned. We are, therefore, of the view that the Government Orders referred to by the learned Government Pleader can have no application to the facts and issues in the instant cases. 7. That brings us to the question as to whether there is any other Government Order or Circular, which enables the Government to reduce the benefits envisaged under the statute to persons appointed ``` WP(C) NO. 21195 OF 2022 ``` ``` 7 ``` as Peon/Office Attendant pursuant to the statutory provisions under the KER. The learned Government Pleader has not been able to bring to our notice any such Circular and we find that his contentions based on the provisions in the Circulars dated 06.11.2012 cannot be accepted since the Circular admittedly applies only in respect of teaching staff in uneconomic schools in the State. His vehement contention that the mention of the phrase “all vacancies” in the said Circular would take within its ambit vacancies of non-teaching staff also cannot be legally countenanced for the Circular itself indicates that it applies only to teaching staff. At any rate, we are of the view that when the statutory provisions clearly mandate that there has to be a post of Peon/Office Attendant in a U.P. School, and there were in fact vacancies of Peon/Office Attendant in the schools in question which were filled by candidates whose eligibility for the post was never in dispute, the statutory benefit of a regular scale of pay cannot be taken away by a Circular. We are in agreement with finding of the learned Single Judge that the ambit of the statutory provisions cannot be curtailed/restricted by the provisions of any Circular issued by the Government. 8. The upshot of the above discussion is that we find the stand of the Educational Authorities/Government that the post of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on daily wage basis to be legally unsustainable. So long as there is a vacancy to an established post of Peon/Office Attendant, and the post is not one which is likely to be abolished in any staff fixation conducted in the school, the appointments made to the post have to be approved on regular scale of pay and not on daily wage basis” 9. While dismissing the appeal filed by the State, this Court had held that the stand of the Educational Authorities/Government that the post ``` WP(C) NO. 21195 OF 2022 ``` ``` 8 ``` of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on a daily wage basis, was legally unsustainable. It was held that so long as there is a vacancy to an established post of Peon/Office Attendant, and the post is not one which is likely to be abolished in any staff fixation conducted in the School, the appointments made to the post have to be approved on a regular scale of pay and not on a daily wage basis. 10. The records reveal that the promotion granted to the petitioner will fall within the ambit of Rule 43 of Chapter XIVA of the KER. In **Manager P.K. High School and Ors. v. State of Kerala and Ors.** [2011 (4) KLT 365], a learned Single Judge of this Court, after an extensive analysis of the law laid down by this Court, has held that even protected teachers who would be entitled to preference under R.5A may have to pave way for promotees under R.43. This has been reiterated in **Ciji P. Jose v. State of Kerala and Ors.** [2012 (1) KLT 867], and in **State of Kerala and Ors. v. Ciji P Jose and Ors.** [2015 (1) KLT 458] though in the context of Rule 51A of the KER. 11. In view of the discussion above, Exhibit P2 order passed by the 3rd respondent cannot be sustained under law, and the same is set aside. ``` WP(C) NO. 21195 OF 2022 ``` ``` 9 ``` 12. This writ petition will stand allowed. There will be an order directing respondents 1 to 3 to grant approval to the appointment by promotion of the petitioner as Clerk in Devaswom Board High School, Erumely from the approved post of Peon/Office Attendant to the sanctioned retirement vacancy of Clerk in recognition of the statutory right under Rule 43 of Chapter XIV A of the KER and Rule 7 of Chapter XIV B of the KER and in the light of Ext.P5 to P8 judgments. Orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall be entitled to salary in the lower scale till orders are passed as directed above, and the respondents 1 to 3 shall ensure that the same is disbursed. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** avs ``` WP(C) NO. 21195 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 21195/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 TRUE COPY OF THE PROCEEDINGS OF RESPONDENT NO. 4 BEARING ROC NO.2917/21/EDN. DATED 23.09.2021. ``` ``` Exhibit P2 TRUE COPY OF THE ORDER BEARING NO.B3/30618/2021 DATED 04.02.2022 THUS PASSED BY RESPONDENT NO.3. ``` - `Exhibit P3 TRUE COPY OF THE REQUEST DATED NIL OF THE PETITIONER.` - `Exhibit P4 TRUE COPY OF THE ORDER BEARING NO.B3/8057/2021 DATED 04.02.2022 THUS ISSUED BY RESPONDENT NO.3 AND COMMUNICATED TO THE HEAD MASTER OF THE DEVASWOM BOARD HIGH SCHOOL, ERUMELY.` - `Exhibit P5 TRUE COPY OF THE RULING OF THIS HON'BLE COURT IN BIPIN PAVITHRAN V. & ANOTHER V. STATE OF KERALA & OTHERS (2021 (2) KHC 515).` ``` Exhibit P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 10/11/2021 IN W.A. NO. 1358 OF 2021 AND CONNECTED APPEALS. ``` ``` Exhibit P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 16158/2021 OF THIS HON'BLE COURT. Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 02.06.2022 IN WP(C) NO. 5716/2022 THUS PASSED BY THIS HON'BLE COURT. ```