FR.SAJU M.D. v. State of Kerala & Others (WP(C) No. 39191 of 2022)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 9[TH]DAY OF JANUARY 2023 / 19TH POUSHA,1944 ``` ## **`WP(C) NO. 39191 OF 2022`** ## **`PETITIONER/S:`** ``` FR.SAJU M.D., AGED 50 YEARS S/O.M.K.DEVASSY, THE CORPORATE MANAGER, SACRED HEART CORPORATE EDUCATIONAL AGENCY OF CMI SCHOOLS, RAJAGIRI.P.O., KALAMASSERY, ERNAKULAM DISTRICT, PIN-683104. BY ADVS. C.A.CHACKO BABU V.P. C.M.CHARISMA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2ADDITIONAL DIRECTOR OF GENERAL EDUCATION (ACADEMIC), DIRECTORATE OF GENERAL EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 3DISTRICT EDUCATIONAL OFFICER, DISTRICT EDUCATIONAL OFFICE, ALUVA, ERNAKULAM DISTRICT, PIN-683101. 4DISTRICT EDUCATIONAL OFFICER, DISTRICT EDUCATIONAL OFFICE, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688524. 5ASSISTANT EDUCATIONAL OFFICER, ANGAMALY, ERNAKULAM DISTRICT, PIN-683572. SMT ANIMA M GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON09.01.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 39191 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The petitioner herein is the Corporate Manager of the Sacred Heart Corporate Educational Agency of CMI Schools, Kalamassery. This writ petition is filed seeking to quash Exhibits P1, P3, and P4 orders and for a declaration that the respondents are bound to grant approval to the appointment of Mr.Rony Sherin as Office Attendant with effect from 14.05.2020 and for ancillary reliefs. 2. It is the case of the petitioner that in his capacity as Corporate Manager of the Educational Agency, the petitioner appointed Mr. Rony Sherin as Full Time Menial on 01.09.2016 in a promotion vacancy of one Baby Xavier in the St. Theresa’s High School, Manappuram. The said appointment was approved on 24.10.2017. Thereafter, the petitioner promoted the aforesaid Mr. Rony Sherin as Office Attendant on 14.05.2020, and he was appointed in a retirement vacancy of certain V.V. Antony, which arose on 30.04.2020 at the St. Thomas U.P. School, Karukutty. Though the proposal for approval was forwarded to the 5th respondent, the same was rejected by Exhibit P1 order. The petitioner asserts that the order of rejection was on the strength of Exhibit P2 Government Order issued by the 1st respondent, as per which certain guidelines were issued for ``` WP(C) NO. 39191 OF 2022 ``` ``` 3 ``` appointments of teachers made in uneconomic schools, not having sufficient strength of students. According to the petitioner, Exhibit P2 Government Order can have no application in so far as appointments of non-teaching staff are concerned. Though the petitioner challenged Exhibit P1 order before the Appellate Authority, the same was rejected by Exhibits P3 and P4 orders by the respondent Nos. 3 and 2, respectively. The petitioner asserts that as per Exhibit P5 staff fixation order issued by the 5th respondent, there is an approved post of full-time Office Attendant. It was ignoring the said aspect that the impugned order has been issued. The petitioner states that though the petitioner had carried out other appointments in terms of Exhibits P6 and P8, the files were returned on the ground of the non-approval of the appointment of the aforesaid Rony Sherin as Office Attendant. It is in the afore circumstances, that this writ petition is filed seeking the following reliefs: i) issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Ext.P1, Ext.P3 & Ext.P4 orders, respectively issued by respondents 5, 3 and 2. after calling for the records leading to its issuance; ii) declare that Mr.Rony Sherin is entitled to get approval of his appointment as Office Attendant w.e.f. 14/05/2020: ``` WP(C) NO. 39191 OF 2022 ``` ``` 4 ``` iii) issue a Writ of Mandamus or any other appropriate writ, order or direction to the respondents to approve the appointment of Mr.Rony Sherin as Office Attendant w.e.f. 14/05/2020 and approve the subsequent appointments made by the petitioner in St.Theresa's High School, Manappuram in the posts of Office Attendant and Full Time Menial, which were not approved due to non approval of appointment of Rony Sherin and disburse all consequential benefits to them. 3. Smt. Charisma, the learned counsel appearing for the petitioner, submits 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 the 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. The petitioner asserts that **Bipin Pavithran** (Supra) was challenged by the Government by preferring Writ Appeal Nos. 1346 of 2021, and their Lordships of the Division Bench 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 itself is one that is statutorily envisaged irrespective of the student strength in the School concerned. ``` WP(C) NO. 39191 OF 2022 ``` ``` 5 ``` 4. I have heard the learned Government Pleader who submitted that the judgment rendered by the Division Bench has been carried in appeal before the Hon’ble Supreme Court and the matter is pending. 5. I have considered the submissions advanced. 6. By a common judgment dated 10.11.2021 in Writ Appeal No.1346 of 2021 and connected cases, it was held by the Division Bench 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 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 ``` WP(C) NO. 39191 OF 2022 ``` ``` 6 ``` 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 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 ``` WP(C) NO. 39191 OF 2022 ``` ``` 7 ``` 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” 7. While dismissing the appeal filed by the State, this Court had held that 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 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. ``` WP(C) NO. 39191 OF 2022 ``` ``` 8 ``` 8. The principles laid above apply to the facts of the instant case as well. As the post of Peon is mandatory in every school, whether or not it has sufficient student strength, the rejection of approval on the ground that the school was uneconomic cannot be sustained. In that view of the matter, the petitioner is entitled to succeed. This writ petition is ordered, and the following directions are issued: (i) Exhibits P1, P3, and P4 orders will stand set aside. (ii) There will be a direction to competent among respondents to grant approval to Sri. Rony Sherin as Office Attendant and thereafter, to consider grant of approval of appointments made by the petitioner and pass appropriate orders. (iii) Orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** ``` avs ``` ``` WP(C) NO. 39191 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 39191/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF ORDER DATED 10/11/2020 OF 5TH RESPONDENT. ``` ``` Exhibit P2TRUE COPY OF GO(MS)NO.83/2018/G.EDN. DATED 12/6/2018 ISSUED BY 1ST RESPONDENT. ``` ``` Exhibit P3TRUE COPY OF ORDER DATED 18/6/21 OF 3RD RESPONDENT. ``` - `Exhibit P4 TRUE COPY OF ORDER OF 2ND RESPONDENT DATED 21/7/2022.` ``` Exhibit P5TRUE COPY OF ORDER DATED 8/8/2022 ISSUED BY THE 5TH RESPONDENT. ``` ``` Exhibit P6TRUE COPY OF APPOINTMENT ORDER DATED 18/5/2020 ISSUED BY PETITIONER - ``` ``` Exhibit P7TRUE COPY OF COMMUNICATION OF 4TH RESPONDENT DATED 2/11/2021. ``` ``` Exhibit P8TRUE COPY OF APPOINTMENT ORDER DATED 16/11/20 ISSUED BY PETITIONER. ``` ``` Exhibit P9TRUE COPY OF ORDER DATED 10/2/22 OF 4TH RESPONDENT. ```