High Court of KeralaSingle Judge2016-07-01The writ petition is allowed. Directions issued...

K G Preeja, C. Shibu, and A. S. Akhil Dev v State of Kerala and others

Case / Petition Number:WP(C).NO.520 OF 2015 (L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Jayasankaran Nambiar
Judgment Date: 2016-07-01
Court Decision / Holding: The writ petition is allowed. The 1st petitioner is entitled to approval as Peon with effect from 01.04.2011, directing the 4th respondent to pass orders accordingly within one month and to disburse consequential benefits within three months. The 2nd and 3rd petitioners are to be approved as Full-time Menial with effect from 02.04.2011 and 01.04.2011 respectively, with monetary benefits within three months. Exts. P12, P13 and P15 are quashed insofar as they deny these approvals. The 4th respondent is directed to pass appropriate orders approving the appointments in accordance with the directions herein. The Government is to consider an appropriate revision if required and register the necessary compliance.” ,
Final Disposition: The writ petition is allowed. Directions issued for approvals and disbursement of benefits; 1st petitioner to be approved as Peon from 01.04.2011; 2nd and 3rd petitioners to be approved as Full-time Menial with effect from respective dates; monetary benefits to be disbursed within the specified time; further orders to be passed by the DPI and Government within set timeframes.

Parties to the Case

Appellants / Petitioners

K G Preeja
C. Shibu
A. S. Akhil Dev

Respondents

The State of Kerala represented by its Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-695001
Director of Public Instructions Jagathy, Thiruvananthapuram-695014
The Deputy Director of Education Thrissur at Ayyanthole-680003
The District Educational Officer Thrissur District-680001
The Corporate Manager, Sree Ramanantha School Committee, Kanimangalam, Thrissur District-680027
Sri. V.C. Jijish, Peon (not approved), S.N.G.Higher Secondary School, Kanimangalam, Thrissur District-680027

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. A. Muhammed
• Sri M. Sajjad

Counsels for Respondents

• Government Pleader SMT. Nisha Bose

Case Synopsis & Summary

This writ petition (WP(C) No.520 of 2015) challenges the denial of approval to the appointments of three school staff at Sree Ramanantha School, Kanimangalam, Thrissur. The petitioners—K G Preeja (Peon, not approved), C. Shibu (Full-time Menial), and A. S. Akhil Dev (Full-time Menial)—were promoted to vacancies created from 2010-2011 onward. The Government and educational authorities denied approval on grounds that vacancies had not been established and that the manager had not complied with undertakings to appoint protected non-teaching staff, under GO (P) No. 10/10/G.Edn. The court examined Exts. P1–P16 (promotion orders, government orders, and revisions) and the DPI/ Government orders, concluding that, with Ext. P1 (approval of Clerk’s appointment), the vacancy to which the 1st petitioner was promoted as Peon was established and that there was no irregularity in approving the 1st petitioner’s promotion from 01.04.2011. Regarding the 2nd and 3rd petitioners, the court found the grounds for denial based on the manager’s undertakings under GO 10/10/G.Edn unsustainable, citing Nadeera v. State of Kerala (2011 (3) KLT 790) and distinguishing an earlier 2013 decision (W.P.(C). No. 23433 of 2011) as inapplicable to the present GO. The writ petition was allowed: the 1st petitioner must be approved as Peon and the 2nd and 3rd petitioners must be approved as Full-time Menial, with consequential monetary benefits to follow and directions to the DPI/ Government to act within specified timeframes.

Provisions of Law Cited

G.O.(P) No.10/10/G.Edn dated 12.01.2010

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s case rested on the establishment of vacancies and the validity of promotions based on Ext. P1, which purportedly approved the Clerk’s post succeeding a promoted Peon. They argued that once Ext. P1 established the vacancy, there could be no irregularity in approving the 1st petitioner’s promotion from 01.04.2011, and that the manager’s undertakings under GO 10/10/G.Edn should not defeat the appointments of the 2nd and 3rd petitioners where a list of protected nonteaching staff was not shown to have been available or acted upon. They relied on the court’s decision in Nadeera v. State of Kerala (2011 (3) KLT 790) to claim relief when the manager failed to comply with undertakings, and contended that Exts. P12, P13 and P15 denying approvals were unlawful. They urged appropriate orders approving these appointments with consequential benefits. Respondents: The respondents argued that GO 10/10/G.Edn imposes a specific obligation on the manager to appoint protected non-teaching staff and that there was no established vacancy or breach of undertakings. They contended that older precedents did not apply to this GO and that the approvals were rightly denied pending due process and compliance, including government oversight and revision petitions.”},

Contentions of Respondents

The State and education authorities represented by a Government Pleader opposed the petitions on grounds of non-establishment of vacancies, the need to adhere to GO 10/10/G.Edn, and undertakings for protected non-teaching staff; they asserted that the manager’s failure to comply warranted denial of approvals and maintenance of the revised appointments until proper compliance could be demonstrated.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Nadeera v. State of Kerala	2011 (3) KLT 790	Positive	Cited to support relief to petitioners regarding appointment of protected non‑teaching staff when the manager’s undertakings fell short, aligning with the court’s reasoning to grant relief.
W.P.(C). No.23433 of 2011	W.P.(C).No.23433 of 2011	Distinguished	Cited as an earlier judgment; the court distinguished it as relating to an earlier Government Order and not GO( P) No.10/10/G.Edn, which governs the present matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938** **WP(C).NO. 520 OF 2015 (L) --------------------------** **PETITIONER(S):** **-------------** **1. K G PREEJA WIFE OF RAJTHILAKAN, AGED 35 YEARS** **PEON (NOT APPROVED), S.N.B.HIGH SCHOOL, KANIMANGALAM, THRISSUR DISTRICT.** **2. C.SHIBU** **SON OF CHANDRAN, AGED 31 YEARS** **FULL-TIME MENIAL, S.N.B.HIGH SCHOOL, KANIMANGALAM, THRISSUR DISTRICT.** **3. A.S.AKHIL DEV** **SON OF A.K.SURESH, S.N.G.HIGHER SECONDARY SCHOOL, KANIMANGALAM, THRISSUR DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE-680 003.** **4. THE DISTRICT EDUCATIONAL OFFICER THRISSUR DISTRICT-680 001.** **5. THE CORPORATE MANAGER** **SREE RAMANANTHA SCHOOL COMMITTEE, KANIMANGALAM, THRISSUR DISTRICT-680 027.** ## **6. SRI.V.C.JIJISH** **PEON (NOT APPROVED), S.N.G.HIGHER SECONDARY SCHOOL, KANIMANGALAM, THRISSUR DISTRICT-680 027.** **R1 -R4 BY ADV. GOVERNMENT PLEADER SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 520 OF 2015 (L) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1- TRUE COPY OF THE APPOINTMENT ORDER OF SMT.MANJUSHA DATED 1.4.2011.** **P2- TRUE COPY OF THE APPOINTMENT ORDER OF SRI.P.D.PRAJITH DATED 1.4.2011.** **P3- TRUE COPY OF THE ORDER NO.B5/2869/11/K.DIS. DATED 11.08.2011 OF THE 4TH RESPONDENT.** **P4- TRUE COPY OF THE ORDER NO.B3/17293/11/K.DIS. DATED 22.6.2012 OF THE 3RD RESPONDENT.** ## **P4(A)- TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P4.** **P5- TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE MANAGER DATED 9.11.2011.** **P6- TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 2.4.2011.** **P7- TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 1.4.2011.** **P8- TRUE COPY OF THE ORDER NO.B5-2877/11/L.DIS. DATED 25.01.2012 OF THE 4TH RESPONDENT.** **P9- TRUE COPY OF THE ORDER NO.B5/3109/11/K.DIS. DATED 8.6.2011 OF THE 4TH RESPONDENT.** **P10- TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF EDUCATION DATED 20.10.2011.** **P10(A)- TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P10.** **P11- TRUE COPY OF THE ORDER NO.B3-2935/12/K.DIS. DATED 1.6.2012 OF THE 3RD RESPONDENT.** **P11(A)- TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P11.** **P12- TRUE COPY OF THE ORDER NO.EC4/82816/2011/DPI/K.DIS. DATED 17.8.2012 OF THE 2ND RESPONDENT.** **P13- TRUE COPY OF THE ORDER NO.EC4/43992/2012/DPI/K.DIS. DATED 29.11.2012 OF THE 2ND RESPONDENT.** **P14- TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT BY THE MANAGER DATED 6.11.2012.** **P15- TRUE COPY OF THE ORDER NO.18798/N2/14/GEN. EDN. DATED 01.08.2014 OF THE GOVERNMENT.** **EXT.P16:TRUE COPY OF THE APPOINTMENT ORDER OF SRI.V.C.JEJESH DATED 1.4.2011 AND APPROVAL THEREON RESPONDENT(S)' EXHIBITS:NIL** **-----------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.520 of 2015 ............................................................. Dated this the 1[st] day of July, 2016** ## **J U D G M E N T** The 1[st] petitioner and the 6[th] respondent in the writ petition were promoted as Peons in the school under the management of the 5[th] respondent, against the promotion vacancies of Smt.Manjusha and Sri.P.D.Prajith, who were promoted as Clerks in the same School. To the consequential vacancies in the post of Fulltime Menial, the 2[nd] and 3[rd] petitioners were appointed. The promotion of the 1[st] petitioner as Peon was not approved by the educational authority, who denied approval on the ground that, insofar as the promotion of the previous incumbent in the post in question had not been approved, the vacancy to which the 1[st] petitioner was promoted had not been established in the School. Against Ext.P4 order of the Deputy Director that denied approval to the promotion of the 1[st] petitioner as Peon, he preferred Ext.P5 revision petition before the Director of Public Instructions which is stated to be pending. As regards the 2[nd] and 3[rd] petitioners, the approval to their appointments as Full-time Menial pursuant to -2- ## **W.P.(C).No.520 of 2015** Exts.P6 and P7 orders was denied by Exts.P8 and P9 orders, on the ground that, the Manager of the School who had executed a bond in the light of G.O.(P) No.10/10/G.Edn dated 12.01.2010 had not complied with the undertaking with regard to appointment of protected non-teaching staff in the vacancies that arose in the school from 2010-2011 onwards. Although, the said petitioners preferred revision petitions first before the Deputy Director, and then before the Director of Public Instructions, the said revisions were rejected by Exts.P10 to P13 orders. Thereafter, although the Manager of the school moved the Government for an approval to the said promotion, the said application was also rejected by Ext.P15 order of the Government which, inter alia, pointed out that the vacancy to which the 2[nd] and 3[rd] petitioners were promoted had also not been established. In the writ petition, the petitioners impugn Exts.P4, P12, P13 and P15 to the extent they confirm the decision against the petitioners, denying approval to their respective appointments. 2. A counter affidavit has been filed on behalf of the -3- ## **W.P.(C).No.520 of 2015** respondents wherein the impugned orders are sought to be justified for the reasons contained therein. In particular, it is pointed out that, unlike in the case of the earlier Government orders issued in the subject, in the case of G.O.(P) No.10/10/G.Edn there was a specific provision which mandated that the Manager of a School should execute a bond undertaking to appoint protected non-teaching staff of the school also, before resorting to fresh appointments. It is pointed out that this was a condition for the Manager availing the benefit of the Government order which had the effect of lifting the ban on appointments. The counter affidavit of the respondent is silent, however, on whether there was any list of protected non-teaching staff made available to the Manager of the school, and a subsequent refusal by the Manager to appoint anybody from the said list. In a reply affidavit filed by the petitioner, the petitioner has also produced Ext.P16 order of approval to the appointment of the 6[th] respondent with effect from 01.04.2011 in the post of Peon. It is pointed out, therefore, that on a reading of Ext.P1 order together with Ext.P16 order, the vacancies to which the 1[st] petitioner and the 6[th] respondent were -4- ## **W.P.(C).No.520 of 2015** promoted had become established, and therefore, there could be no irregularity in the approval of the appointment of the 1[st] petitioner and the 6[th] respondent. 3. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that with the passing of Ext.P1 order, whereby the promotion to the post of Clerk, of the incumbent who earlier held the post of Peon to which vacancy the 1[st] petitioner was appointed, was approved by the educational authorities, the vacancy to which the 1[st] petitioner was promoted as Peon stood established, and therefore, there would be no irregularity in approving the said promotion of the petitioner to the post of Peon. Thus, despite the fact that Ext.P5 revision petition, claiming the same relief, is pending consideration before the 2[nd] respondent, I deem it appropriate to declare that the 1[st] -5- ## **W.P.(C).No.520 of 2015** petitioner is entitled for an approval to his promotion as Peon with effect from 01.04.2011. The 4[th] respondent shall therefore pass appropriate orders approving the appointment of the 1[st] petitioner as Peon in the School with effect from 01.04.2011 within a period of one month from the date of receipt of a copy of this judgment and disburse to the said petitioner all consequential benefit flowing from the said approval within a further period of three months thereafter. 5. As regards the appointment of the 2[nd] and 3[rd] petitioners as Full-time Menial, I find that the only reason cited in Exts.P12 and P13 orders of the Director of Public Instructions and Ext.P15 order of the Government is that the said appointments were made by the Manager disregarding his obligation, pursuant to the undertaking furnished by him to the Government, to appoint protected non-teaching staff to vacancies that arose in the school after 2011. While the learned counsel for the petitioner would rely on the judgment dated 22.02.2013 of this Court in W.P.(C). No.23433 of 2011 to contend that this Court had already taken a -6- ## **W.P.(C).No.520 of 2015** view that the Government order in question did not oblige the Manager to appoint protected non-teaching staff, I find that the reference in the said judgment was to an earlier Government Order and not G.O.(P) No.10/10/G.Edn where there is a specific provision which relates to appointment of protected non-teaching staff. I find, however, that it is not the case of the respondents that a list of protected non-teaching staff was made available to the Manager at any point in time, and that the Manager had refused to appoint a person from the said list. In that event, the petitioners would be entitled to the benefit of the judgment of this Court in **Nadeera v. State of Kerala (2011 (3) KLT 790)** and the reason cited in Exts.P12, P13 and P15 orders, cannot be a ground for denying approval to the appointment of the 2[nd] and 3[rd] petitioners as Full-time Menial in the School in question. Accordingly, I quash Exts.P12, P13 and P15 orders, insofar as they deny approval to the appointment of the 2[nd] and 3[rd] petitioners as Full-time Menial in the school with effect from 02.04.2011 and 01.04.2011 respectively. The 4[th] respondent shall pass appropriate orders approving the appointment of the 2[nd] and 3[rd] petitioners as -7- ## **W.P.(C).No.520 of 2015** Full-time Menial in the school with effect from 02.04.2011 and 01.04.2011 respectively, within a period of one month from the date of receipt of a copy of this judgment, and thereafter, disburse all monetary benefits flowing from the said approval to the said petitioners within a further period of three months. The writ petition is allowed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/1.07.16