High Court of KeralaSingle JudgeWrit petition allowed in part; Ext.P14 set asid...

Brijin. P v. State of Kerala and others

Case / Petition Number:WP(C) NO. 20220 OF 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2023-03-31
Court Decision / Holding
Writ petition allowed in part: Ext.P14 is set aside; the 1st respondent is directed to reconsider the matter after giving sufficient opportunity of hearing to the petitioner and the 7th respondent within four months from receipt of a certified copy of the judgment, and to consider whether Krishnan v. Muraleedharan applies to the facts. The petitioner shall produce a stamped copy of this judgment along with the petition before the 1st respondent for compliance. The 1st respondent shall also consider the applicability of Krishnan’s principle (supra).
Final Disposition
Writ petition allowed in part; Ext.P14 set aside; remand to 1st respondent for reconsideration with due hearing within four months; consider Krishnan’s principle; comply by producing stamped copy of judgment.

Parties to the Case

Appellants / Petitioners

  • Brijin. P

Respondents

  • The State of Kerala represented by its Secretary to Government of General Education, Government Secretariat, Thiruvananthapuram
  • The Director General of Education, Directorate of General Education, Jagathy P.O, Thiruvananthapuram
  • The Deputy Director of Education, Downhill P.O, Malappuram
  • The District Education Officer, Civil Station, Tirur P.O, Malappuram
  • The Manager, VVM HSS Marakkara, Marakkara P.O, Malappuram
  • The Headmaster, VVM HSS Marakkara, Marakkara P.O, Malappuram
  • Haridas Valancherry

Legal Representation & Advocates

Counsels for Petitioners

  • • J.G. Syam Nath
  • • S. Aneesh

Counsels for Respondents

  • • S. Krishna

Case Synopsis & Summary

The petitioner, Brijin. P., employed as a Full Time Menial (FTM) at VVM Higher Secondary School, Marakkara, challenges the retrenchment of his post and seeks salary arrears, back monetary benefits, and promotion to the existing vacancy of Office Attendant. The facts show that the 7th respondent was promoted to HSA (Malayalam) from FTM, but during staff fixation for 2018-19 one HSA post was reduced. The 7th respondent was not reverted, and after reopening of the school on 06.06.2019, the Manager issued a letter reverting the 7th respondent to FTM and retrenching the petitioner for want of vacancy. The 2nd respondent rejected the Manager’s appeal to retain the 7th respondent, and Ext.P14 (the government order) was issued, while Ext.P13 indicated a hearing notice for 14.07.2021. The petitioner contends Ext.P14 was issued without affording an opportunity of hearing, and that the 7th respondent’s appointment was a fresh appointment, not a promotion. He relies on Krishnan v. Muraleedharan (2000 KHC 628) to argue that retrenchment cannot be effected by reverting a promoted employee where a fresh appointment exists. The court found a lack of due process in Ext.P14 and remanded the matter to the 1st respondent to reconsider after providing sufficient hearing to both parties, within four months, and to consider Krishnan’s principle. The petitioner must produce a stamped copy of this judgment for compliance. The petition is allowed in part.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that his promotion to the vacancy was thwarted by the 7th respondent’s (Haridas Valancherry) appointment as a fresh HSA and that his subsequent retrenchment was illegal for lack of vacancy and due process. He asserts that Ext.P14 (the government order) was issued without affording a meaningful opportunity of hearing, despite Ext.P13 indicating a hearing notice. He relies on the principle in Krishnan v. Muraleedharan (2000 KHC 628) that a fresh appointment should not be used to sideline a preexisting employee, and seeks quashing of Exts. P3, P7, and P14, and salary, back benefits, and promotion to the existing vacancy. He urges that the matter be remitted for proper consideration with due process.

Contentions of Respondents

The respondents contend that Ext.P14 reflects a cabinet-level or government reconsideration after examining representations (Exts. P8, P9, P14) and that due process was involved, with hearing notices and opportunities as appropriate. They argue that the 7th respondent’s appointment may be a fresh appointment within the school’s staffing structure and that retrenchment was grounded in vacancy and policy considerations. They submit that Ext.P14 was issued following due procedure and that the writ petition seeks to circumvent the administrative process. They maintain that Exts. P13–P14 show that the petitioner was heard or given an opportunity to be heard, and that the government’s decision should stand. They request dismissal of the petition or limited relief consistent with the established policy and due process.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Krishnan v. Muraleedharan2000 KHC 628PositiveThe court relies on this principle to hold that the 7th respondent cannot be reverted to FTM where the 7th respondent’s appointment is a fresh appointment, and directs reconsideration consistent with that principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

WP(C) NO. 20220 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945** **WP(C) NO. 20220 OF 2021** ## **PETITIONER/S:** BRIJIN. P AGED 26 YEARS S/O BALAN P, FULL TIME MENIAL , V.V.M H.S.S, MARKKARA, MARAKKARA P.O, MALAPPURAM-676553, RESIDING AT POTTALATHIL HOUSE, TRIKKULAM, THIRURANGADI P.O, MALAPPURAM-6763063 BY ADVS. J.G.SYAMNATH S.ANEESH ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR GENERAL OF EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY P.O, THIRUVANANTHAPURAM-695014. 3 THE DEPUTY DIRECTOR OF EDUCATION DOWNHILL P.O, MALAPPURAM-676519. 4 THE DISTRICT EDUCATION OFFICER CIVIL STATION, TIRUR P.O, MALAPPURAM-67601. 5 THE MANAGER VVM HSS MARAKKARA, MARAKKARA P.O, MALAPPURAM-676553. 6 THE HEADMASTER VVM HSS MARAKKARA, MARAKKARA P.O, MALAPPURAM-676553. 7 HARIDAS VALANCHERRY WP(C) NO. 20220 OF 2021 2 FULL TIME MENIAL, VVM HSS MARAKKARA, MARAKKARA P.O, MALAPPURAM-676553. BY ADVS. S.KRISHNA ADVOCATE GENERAL OFFICE KERALA ## **OTHER PRESENT:** SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20220 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** ## **--------------------------------------W.P.(C) No. 20220 of 2021** **-------------------------------------Dated this the 31[st] day of March, 2023** ## **JUDGMENT** The above writ petition is filed with following prayers : i) “To call for the records leading to Exhibits P3, P7 and P14 and quash the same by the issuance of a Writ of Certiorari. ii) To issue a Writ of Mandamus directing respondents 1 to 5 to disburse the salary of the petitioner from 15.07.2018 to 01.05.2019 and from 01.06.2020 along with all monetary benefits due to him forthwith. iii) To issue a Writ of Mandamus directing the 5th respondent to promote the petitioner to the existing vacancy in the post of Office Attendant existing in the school since 02.05.2019. iv) To declare that the retrenchment of the petitioner for want of vacancy of Full Time Menial as per Exhibit P3 letter is highly illegal and arbitrary. v) To declare that the petitioner is entitled to be promoted as Office Attendant in the existing vacancy. vi) To grant such other relief as this Hon'ble Court deems fit and proper to grant.” [SIC] WP(C) NO. 20220 OF 2021 4 2. The petitioner is working as Full Time Menial under the 5[th] respondent at VVM HSS, Marakkara. According to the petitioner, he was appointed in the promotion vacancy of the 7[th] respondent who was promoted to the post of HSA (Malayalam). Thereafter, during the staff fixation for the year 2018-19, one post of HSA was reduced. However, the 7[th] respondent was not reverted to the post of Full Time Menial and allowed to continue in the post of HSA (Malayalam) until 05.06.2019 is the submission. After the reopening of the school on 06.06.2019, a letter was issued by the Manager to the Headmaster reverting the 7[th] respondent to the post of Full Time Menial and retrenching the petitioner for want of vacancy. It is the case of the petitioner that the said order was not intimated to the petitioner. The petitioner is continuously working in the post of Full Time Menial without break is the submission. The 2[nd] respondent has rejected the appeal submitted by the Manager seeking retention of the 7[th] respondent in the post of HSA (Malayalam) with certain observations that are prejudicial to the claim of the petitioner vide Ext.P7 is the submission. Ext.P7 order has been issued WP(C) NO. 20220 OF 2021 5 without issuing notice to the petitioner is the submission. Although the petitioner submitted Ext.P8 statutory appeal and Ext.P9 representation before the 1[st] respondent and the same was considered by the Government and dismissed the same as per Ext.P14. It is the case of the petitioner that even though in Ext.P14, it is stated that the petitioner was heard, a perusal of Ext.P13 will show that it is an order passed without giving an opportunity of hearing to the petitioner. The petitioner also submitted that the appointment of the 7[th] respondent is a fresh appointment and hence, in the light of the principle laid down by this Court in **Krishnan v. Muraleedharan** [2000 KHC 628], the petitioner cannot be retrenched by reverting the 7[th] respondent to the post of FTM because the appointment of the 7[th] respondent is a fresh appointment. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P13 which is the hearing notice issued by the 1[st] respondent. In Ext.P13, it is clearly stated that the hearing is scheduled on 14.07.2021 at 2.30 pm, but Ext.P14 order is passed on 30.06.2021. Even though in WP(C) NO. 20220 OF 2021 6 Ext.P14, it is stated that the petitioner was heard in Google Meet, I am of the opinion that in the light of Ext.P13, there is some force in the argument of the petitioner that Ext.P14 is an order passed without giving sufficient opportunity of hearing. On that ground itself, Ext.P14 can be set aside. Moreover, the petitioner has got a case that the 7[th] respondent is appointed as a fresh hand and not as a promotee. In such circumstances, the 7[th] respondent cannot be reverted to the post of Full Time Menial, in the light of the principle laid down by this Court in **Krishnan's** case (supra). I do not want to make any further observation about the same. Since the matter is remanded to the 1[st] respondent, the 1[st] respondent will reconsider the matter and will also consider whether the dictum laid down in **Krishnan's** case (supra) is applicable in the facts and circumstances of this case. Therefore, this writ petition is allowed in the following manner : - 1) Ext.P14 is set aside. - 2) The 1[st] respondent is directed to reconsider the matter after giving sufficient opportunity of hearing to the WP(C) NO. 20220 OF 2021 7 petitioner and the 7[th] respondent as expeditiously as possible at any rate, within four months from the date of receipt of a stamped certified copy of this judgment. - 3) While passing orders, the 1[st] respondent will also consider the applicability of the principle laid down by this Court in **Krishnan's** case (supra) - 4) The petitioner will produce a stamped certified copy of this judgment along with the copy of this writ petition before the 1[st] respondent for compliance. ## **Sd/-** ## **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 20220 OF 2021 8 ## **APPENDIX OF WP(C) 20220/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF ORDER DATED 01.06.2017 ISSUED| |---|---| ||BY THE 5TH RESPONDENT.| |Exhibit P2|TRUE COPY OF ORDER DATED 01.06.2017 ISSUED| ||BY THE 5TH RESPONDENT.| |Exhibit P3|TRUE COPY OF LETTER DATED 06.06.2019| ||ISSUED BY THE 5TH RESPONDENT TO THE 6TH| ||RESPONDENT.| |Exhibit P4|TRUE COPY OF REPRESENTATION DATED| ||22.09.2020 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT.| |Exhibit P5|TRUE COPY OF JUDGMENT DATED 14.01.2021 IN| ||WPC NO.24351 OF 2020.| |Exhibit P6|TRUE COPY OF JUDGMENT DATED 14.09.2020 IN| ||WPC NO.18734 OF 2020.| |Exhibit P7|TRUE COPY OF ORDER DATED 23.01.2021 ISSUED| ||BY THE 2ND RESPONDENT.| |Exhibit P8|TRUE COPY OF REVISION PETITION DATED| ||06.02.2021 SUBMITTED BY THE PETITIONER| ||BEFORE THE 1ST RESPONDENT.| |Exhibit P9|TRUE COPY OF REPRESENTATION DATED| ||08.02.2021 SUBMITTED BY THE PETITIONER| ||BEFORE THE 1ST RESPONDENT| |Exhibit P10|TRUE COPY OF JUDGMENT DATED 11.02.2021 IN| ||WPC NO.3560 OF 2021.| |Exhibit P11|TRUE COPY OF JUDGMENT DATED 09.03.2021 IN| ||WPC NO.6114 OF 2021.| |Exhibit P12|TRUE COPY OF HEARING NOTICE DATED| ||22.03.2021 ISSUED BY THE 1ST RESPONDENT.| 9 WP(C) NO. 20220 OF 2021 Exhibit P13 TRUE COPY OF HEARING NOTICE DATED 11.06.2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P14 TRUE COPY OF ORDER DATED 30.06.2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P15 TRUE COPY OF CIRCULAR DATED 19.11.2018 ISSUED BY THE 1ST RESPONDENT.