Georgekutty v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 ``` ## **`WP(C) NO. 4963 OF 2013`** ## **`PETITIONER:`** ## **`GEORGEKUTTY,AGED 43 YEARS`** ``` OFFICE ATTENDANT (PEON), ST.JOSEH HIGH SCHOOL KUNNOTH, P.O.KILIYANTHARA, KANNUR-670 706. ``` ## **`BY ADV SRI.KALEESWARAM RAJ`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHPAURAM-695 001.`** - **`2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHPAURAM-695 001`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION KANNUR-670 001.`** - **`4 DISTRICT EDCATIONAL OFFICER KANNUR-670 001.`** - **`5 THE CORPORATE MANAGER,ARCHDIOCESE OF THALASSERY, SANDRA BAHVAN, P.B.NO.70, THALASSERY, KANNUR DIST.`** - **`BY ADVS. GOVERNMENT PLEADER GOVERNMENT PLEADER`** ## **`OTHER PRESENT:`** ``` SR.G - SUNILKUMAR KURIAKOSE ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C)No.4963 of 2013 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.4963 of 2013 .................................................................** Dated this the 25[th] day of July, 2023 ## **JUDGMENT** The above writ petition is filed challenging Exts.P9 and P14 and for a further direction to the respondents to approve the appointment of the petitioner as Full Time Menial from 26.06.2001 to 20.06.2005. 2. Petitioner is working as Office Attendant (Peon) at St.Joseph High School, Kunnoth in Kannur District. He was appointed as Menial Staff in St.Augustine's High School, Nellikutty w.e.f. 26.06.2001 in the vacancy of one Smt.Rebeccama who is promoted as Peon. As against the petitioner's appointment one Roshan T.J. approached this Court by filing O.P. No.20133 of 2001 which was ultimately dismissed. Against which an appeal was filed as W.A.No.2923 of 2001 wherein Ext.P1 interim order was passed making it clear that the appointment of the petitioner herein will be subject to the result of the appeal. The said writ appeal was also ultimately dismissed observing that it is for the Deputy Director of Education to consider whether the selection was properly done by the aided school with notice to all. Thereafter the 3[rd] respondent passed Ext.P8 order whereby the representation filed by the Sri Roshan T.J. was WP(C)No.4963 of 2013 3 rejected. The petitioner sought approval of appointment as per Ext.P2 before the 4[th] respondent . The said request was turned down by Ext.P3. Thereafter by Ext.P4 order the approval of the appointment of the petitioner as Full Time Menial w.e.f. 26.06.2001 was rejected. Against which the Manager preferred Exts.P5 and P6 appeals before the 3[rd] and 2[nd] respondents respectively. Thereafter also the approval of the appointment of the petitioner was rejected as per Ext.P9. But in Ext.P9 a different reason has been stated for the rejection, that the St.Augustine's High School, Nellikutty is a newly opened school and hence the vacancy has to be filled up by a protected hand in terms of G.O(Ms) No.123/91/G.Edn dated 05.08.1991. Aggrieved by Ext.P9 the Manager preferred Ext.P10 revision. While so by Ext.P11 order the 4[th] respondent approved the appointment of certain Full Time Menial, though the school to which they were appointed was also newly opened school. Highlighting all these aspects petitioner has preferred a writ petition as W.P(C) No.22590 of 2009 before this Court and by Ext.P12 judgment the Government was directed to take a decision in the matter. Thereafter the same was rejected by Ext.P14. In Ext.P14 it is stated that there were two protected Full Time Menials available for deployment in the district and as such the vacancy should have been filled up by appointing a Full Time Menial. Petitioner submits that later he was promoted to the post of Peon WP(C)No.4963 of 2013 4 w.e.f. 20.06.2005. But on account of Ext.P14 and earlier rejections of proposal for approval of his appointment the petitioner was denied approval of appointment as Full Time Menial from 26.06.2001 to 20.06.2005 though his subsequent appointment as Peon w.e.f. 20.06.2005 was approved. Petitioner further submits that even a copy of Ext.P14 was not issued on the petitioner and he had to approach the Government under the Right to Information Act and only thereafter a copy was served on him. Aggrieved by the same petitioner has approached this Court. 3. Counter affidavits have been filed on behalf of the 2[nd] respondent as well as the 3[rd] respondent wherein it is reiterated that at the time of appointment of the petitioner two Full Time Menials were available for deployment as protected hands and therefore the vacancy could have been filled up only by appointing protected hands. The 3[rd] respondent in the counter affidavit would further submit that the Government as per Circular No.53503/J2/90/G.Edn. dated 12.11.1990 has clarified that the certificate regarding availability of protected hands in each category should be given by the Deputy Director of Education to the Manager as soon as the request is received from the Manager. In this case no such request was made by the 5[th] respondent. Hence the argument that no such list of protected Full Time Menial was even furnished by the WP(C)No.4963 of 2013 5 Government or the departmental authorities to the Manager is not true to facts. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. Petitioner submits that it is the duty of the educational officers to furnish the list of protected teachers to the Manager of the school and in the absence of such a list furnished, the Manager could not have appointed any Full Time Menial in the school. It is the obligation of the Government/educational authorities to furnish such a list and demand appointment of such protected Full Time Menial if any available. In the absence of such a demand, the Government or the other respondents cannot decline the approval of appointment as held by this Court in _**Nadeera T.S. and another v. State of Kerala and others (2011 (3) KHC 650)**_ and _**Moosakutty Puthuvalappan v. District Educational Officer, Wandoor and others (2009 (3) KLT 863)**_ which was subsequently followed in W.P.(C) No.14278 of 2009 and 37887 of 2008. _**Nadeera T.S.**_ ’s case (supra) was taken up in appeal by the State ( _**State of Kerala and others v. T.S.Nadeera and another (2013 (2) KLT 88**_ ) wherein it was held that it is mandatory on the part of the department to maintain list of protected teachers and once such list is sent to the managements, if there is violation of any direction or guidelines, then the WP(C)No.4963 of 2013 6 managements could be found fault with. It is further held that there is no obligation on the part of the managements to secure the list of protected teachers and only obligation cast on the Managers of the aided schools is that they must appoint protected teachers whenever a list is sent. In the present case the only stand taken by the 3[rd] respondent in the counter affidavit is that the Manager has not requested for the list of protected teachers and therefore the list was not furnished. Whereas in _**Nadeera T.S.**_ ’s case (supra) the Division Bench of this Court has specifically held that there is no obligation on the part of the management of the aided school to secure list of protected teachers and the only obligation cast on the Managers of the aided schools is that they must appoint protected teachers whenever a list is sent. 6. Admittedly no list of protected teachers was sent by the educational authorities to the 5[th] respondent whereby obliging him to appoint a protected teacher in the vacancy to which the petitioner is appointed. In view of the above I find considerable force in the argument of the learned counsel for the petitioner and hold that the petitioner is entitled for the reliefs sought for in the writ petition. Therefore Exts.P9 and P14 orders are quashed with a direction to the respondents to approve the appointment of the petitioner as Full Time Menial from WP(C)No.4963 of 2013 7 26.06.2001 to 20.06.2005 with all attendant benefits including arrears of pay and other allowances. With the abovesaid direction the above Writ Petition is allowed. Sd/- **VIJU ABRAHAM JUDGE** cks WP(C)No.4963 of 2013 8 ## **APPENDIX** ## **PETITIONER’S EXHIBITS:** **EXT.P1- TRUE COPY OF THE ORDER DATED 24.7.2001 IN WA. NO.2923/2001 EXT.P2 -TRUE COPY OF THE LETTER DATED 6.4.2002 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT** **EXT.P3-TRUE COPY OF THE LETTER DATED 6.5.2002** **EXT.P4 TRUE COPY OF THE ORDER DATED 19.5.2004** **EXT.P5 TRUE COPY OF THE ORDER DATED 12.1.2005** **EXT.P6 TRUE COPY OF THE APPEAL DATED 4.2.2005 FILED BY THE MANAGER BEFORE THE 2ND RESPONDENT** **EXT.P7 TRUE COPY OF THE JUDGMENT DATED 10.11.2004 IN WA NO.2923/2001** **EXT.P8 TRUE COPY OF THE ORDER DATED 19.4.2005** **EXT.P9 TRUE COPY OF THE ORDER DATED 26.7.2005 ISSUED BY THE 2ND RESPONDENT** **EXT.P10 TRUE COPY OF THE REVISION PETITION FILED BY THE MANAGER BEFORE THE 1ST RESPONDENT** **EXT.P11 TRUE COPY OF THE APPOINTMENT ORDERS DATED 6.6.2001, 8.3.2004 AND 17.7.2002** **EXT.P12 TRUE COPY OF THE JUDGMENT DATED 10.8.2009 IN WP© NO.22590/2009 EXT.P13 TRUE COPY OF THE NOTES OF ARGUMENT FILED ON BEHALF OF THE PETITIONER** **EXT.P14 TRUE COPY OF GO(Rt) NO.1156/10 DATED 16.3.2010**