K. Santosh v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938** **WP(C).No. 8845 of 2014 (E) ---------------------------** **PETITIONER(S)/PETITIONER: ------------------------** **K. SANTHOSH, LAB ASSISTANT, VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR - 680 001.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM - 695 001.** **3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.** **4. DISTRICT EDUCATIONAL OFFICER, THRISSUR - 680 020.** **5. THE MANAGER, VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR - 680 001.** **6. E. ANILKUMAR,** - **L.D.CLERK (UNAPPROVED), VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR - 680 001.** **R1-R4 BY SENIOR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R5 BY ADV. SRI.G.SREEKUMAR (CHELUR) R6 BY ADV. SRI.IEANS.C.CHAMAKKALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 8845 of 2014 (E) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **EXHIBIT P1 : TRUE COPY OF THE ORDER DATED 30.06.2005 EXHIBIT P2 : TRUE COPY OF THE REPRESENTATION DATED 25.11.2013 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER** - **EXHIBIT P3 : TRUE COPY OF THE PETITION DATED 09.12.2013 WAS FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT** - **EXHIBIT P4 : TRUE COPY OF THE QUESTIONNAIRE DATED 17.07.2012 TOGETHER WITH REPLY DATED 31.07.2012** - **EXHIBIT P5 : TRUE COPY OF THE JUDGMENT DATED 18.12.2013 IN WP(C) NO.31489/2013** - **EXHIBIT P6 : TRUE COPY OF THE ORDER DATED 01.03.2014 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P7 : TRUE COPY OF THE LETTER DATED 04.01.2014** - **EXHIBIT P8 : TRUE COPY OF THE ATTESTED COPY OF RELEVANT PAGES OF PETITIONER'S SERVICE BOOK OBTAINED ON 21.2.2014.** - **EXHIBIT P9 : TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER AFTER THE ENDORSEMENT BY 5TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF G.O.NO.1656/2007/G.EDN DTD.13.4.2007.** - **EXHIBIT P11 TRUE COPY OF THE RELEVANT PART OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P12 TRUE COPY OF THE STATEMENT/ARGUMENT NOTE SUBMITTED BY THE HEADMISTRESS, V.B.H.S.S., THRISSUR.** **EXHIBIT P13 TRUE COPY OF THE LETTER DTD.19.12.2014.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** **NIL** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(C).No.8845 of 2014** **= = = = = = = = = = = = = = = Dated this the 19[th] day of December, 2016** ## **JUDGMENT** ## 1.The prayers in this writ petition are as follows:- - i. To issue a writ of certiorari quashing Ext.P6 as unjust, illegal and unsustainable. - ii. To declare that the petitioner is a claimant to the post of Lower Division Clerk in the High School Section of Vivekodyam Boys' Higher Secondary School managed by the 5[th] respondent under Chapter XIVA Rule 43 read with Chapter XXIVB Rule 7 of KER; - iii. To declare that the appointment of the 6[th] respondent as L.D.Clerk in Vivekodayam Boys' Higher Secondary School managed by the 5[th] respondent is illegal, unjust and unsustainable in view of the petitioner's claim to the post under Chapter XIVA Rule 43 read with Chapter XXIVB Rule 7 of KER; - iv. To issue a writ of mandamus directing the respondents 1 to 4 to decline approval of appointment of the 6[th] respondent; - v. To issue a writ of mandamus directing the respondents 1 to 4 to pass orders directing the Manager to appoint the petitioner as LD Clerk in the High School Section of Vivekodayam Boys' Higher Secondary School and to approve the said appointment; - vi. To issue a writ of mandamus directing the respondents 1 to 4 to interdict the respondent No.5 Manager from appointing anybody else as L.D.Clerk without or before appointing the petitioner in the said school; W.P.(C).No.8845/14 2 - vii.To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit on the facts and circumstances of the case.” 2.It is contended that the petitioner was initially appointed as Full Time Menial in the 5[th] respondent's school on 01.02.1993. He was later promoted as Peon in the High School section on 09.02.1996. While so, he was posted as Lab Assistant in a Higher Secondary School managed by the 5[th] respondent on 28.03.2003. By Exhibit P1 order dated 30.06.2005 the appointments of Lab Assistants made by the 5[th] respondent was approved by the 2[nd] respondent. However, as a condition to the said approval, it was specifically held that the approval of appointment is purely on temporary and provisional basis. It is further stated that the approval is subject to the outcome of O.Ps and writ appeals pending in the High Court and the subsequent orders of the Government in the matter. It is submitted that the said provisional approval was never confirmed and the petitioner had continued as Lab Assistant in the Higher Secondary School on the basis of Exhibit P1. Since the appointment of the petitioner was not regularised and W.P.(C).No.8845/14 3 Exhibit P1 was not varied accordingly, it is submitted that the petitioner continued to hold lien in the post of peon in the High School Section. 3.A vacancy of LDC arose in the High School Section on 01.12.2013. The petitioner had preferred a claim for appointment as against the post. Exhibit P2 is the request made by the petitioner to the Manager for appointment as LDC after reversion to the post of Peon. Exhibit P2 is dated 25.11.2013. When orders were not rendered and the 6[th] respondent was appointed by the Manager as LDC, the petitioner had preferred Exhibit P3 to the DEO pointing out that he was senior to the 6[th] respondent in the category of peon in the High School Section and that since he retained his lien in the post of peon, he was entitled to be appointed as LDC in the vacancy which arose on 01.12.2013. By Exhibit P5 judgment dated 18.12.2013, the claim of the petitioner was directed to be considered by the DEO, with notice to the Manager as well as the 6[th] respondent. By Exhibit P6 order dated 13.03.2014, pursuant to a hearing conducted on W.P.(C).No.8845/14 4 22.02.2014, the DEO rejected the claim of the petitioner and stated that the petitioner had already been posted as Lab Assistant in the Higher Secondary Section of the School and that he was still on the rolls of the Higher Secondary Section. It is stated that the post of Lab Assistant is not a feeder category for appointment as clerk in the High School. Since the 6[th] respondent is on the rolls in the seniority list of the High School under the non-teaching staff category, it was held that he was entitled for appointment as LDC. The petitioner challenges the said order. - 4.Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and the learned counsel for the 5[th] respondent. - 5.Though notice has been duly served on the 6[th] respondent, there was no appearance for the 6[th] respondent. A counter affidavit has been filed by the 4[th] respondent DEO contending that Manager had promoted the 6[th] respondent as clerk with effect from 01.12.2013. It is stated that as per the seniority W.P.(C).No.8845/14 5 list of the high school as on the date of occurrence of vacancy, the petitioner was not included in the list and the 6[th] respondent was the senior most eligible peon for appointment under Rule 43 of Chapter XIVA KER. It is stated that pursuant to Exhibit P5 judgment personal hearing was conducted on 20.02.2014 and Exhibit P6 order was passed after considering the contentions advanced on all sides. It is further contended that the lien of the petitioner on the post of peon stands permanently suspended as and when his probation in the Lab Assistant's post is successfully declared to be completed. It is also stated that the petitioner had been granted Senior Grade in the scale of pay of Lab Assistant and therefore the petitioner had continued on basis of Exhibit P1 and had been granted the Higher Grade in the post of Lab Assistant and therefore he would not be entitled to contend that he is eligible to be considered for promotion as LDC. - 6.The petitioner has filed a reply affidavit disputing his contention that his probation was ever declared in the post of Lab Assistant. It is stated on the strength of Exhibits P8 and W.P.(C).No.8845/14 6 P9 that the attested copy of the service book obtained by him for the purpose of hearing on 21.02.2014 would show that there was no endorsement as to the completion of probation as on that date. It is therefore contended that the endorsements entered regarding the declaration of probation was inserted at a later date for the purpose of this case. It is also contended by the learned counsel for the petitioner on the basis of the decisions of this Court reported in **K.J.Sulatha and others v. State and others** [1993 KHC 241], **James v. State of Kerala** [2004(2) KLT 534] and **Sachidanandan v. State of Kerala** [2011 (2) KLT 209] that the petitioner, whose appointment as HSST was approved only on a provisional basis, was entitled to retain his lien in the post of Peon and to claim promotion on the strength of such lien to the post of LDC. The learned counsel for the petitioner would further contend that even the declaration of probation of the petitioner by the Manager would not make any difference to the situation, since Exhibit P1 order of approval, which was specifically on a provisional basis, had never been varied by the 2[nd] respondent. It is therefore contended that the act of the Manager in declaring W.P.(C).No.8845/14 7 the petitioner's probation on a later date would not affect his lien, since Exhibit P1remains unaltered and the service of the petitioner in the post of Lab Assistant remains approved only provisionally. It is further contended that on the basis of the decisions of this Court as well as the Apex Court that unless the approval of petitioner's appointment as Lab Assistant is confirmed and regularised by the 2[nd] respondent, such appointment would continue to be temporary and the petitioner therefore would be entitled to retain his lien in the substantive post of Peon held by him in the High School Section. In that view of the matter, it is contended that the petitioner would be the senior most non-teaching staff eligible for promotion as LDC in High School Section and his claim for appointment against vacancy which arose on 01.12.2013 would have to be considered favourably. - 7.The learned Government Pleader appearing for respondents 1 to 4 would submit that the petitioner's appointment as Lab Assistant in the Higher Secondary School Section had been approved by Exhibit P1. Though the approval stated to be W.P.(C).No.8845/14 8 purely on temporary and provisional basis, it is contended that since the petitioner had continued on the strength of Exhibit P1 for nearly 10 years and had drawn the Higher Grade in the post of Lab Assistant, it should be deemed that his appointment had been regularised and that his lien for the post of Peon had been terminated. It is also contended that the petitioner's name stands included in the seniority list of non-teaching staff of the Higher Secondary Division of the school and is not found in the list of non-teaching staff of the High School Section. It is therefore contended that the 6[th] respondent who was the senior most peon included in the seniority list of the non-teaching staff of the High School Section was entitled to appointment. - 8.The learned counsel for the 5[th] respondent would also submit that the appointment was made on the basis of the seniority list of non-teaching staff of the High School Section which was duly approved and that the 6[th] respondent was included as the senior most in the said list was entitled to the appointment. It is further contended that the petitioner had successfully W.P.(C).No.8845/14 9 completed his period of probation in the category of Lab Assistant and had been treated as having been regularised against the post of Lab Assistant. It is contended by the learned Government Pleader that the 4[th] respondent has relied on a judgment of this Court dated 17.09.2009 in W.P.(C). No.1197 of 2009. It is contended that it has been held that the post of Lab Assistant in the Higher Secondary School is not a feeder category for appointment to the post of UPSA and that therefore the petitioner, who had been included in the rolls of Higher Secondary School Division as Lab Assistant, could not aspire for promotion as LDC. This judgment evidently considered only the question of eligibility for promotion of nonteaching staff of Higher Secondary Schools for appointment in the Upper Primary Section of the same school. The petitioner's claim being based on his lien in the post of Peon is in the High School, the said judgment has no application in the instant case. 9. I have considered the contentions advanced as well as the pleadings and the materials on record. It is not in dispute that W.P.(C).No.8845/14 10 the petitioner was appointed as Full Time Menial on 01.02.1993 and as Peon on 09.02.1996 in the High School Section of the school. It is also not in dispute that if he retains his lien in the post of Peon in the High School Section, he would be senior to the 6[th] respondent. The appointment of the petitioner as Lab Assistant to the Higher Secondary School was w.e.f. 28.03.2003. The said appointment has been approved only by Exhibit P1 order. Exhibit P1 specifically states that the approval is purely on temporary and provisional basis. There is no contention taken in the writ petition to the effect that Exhibit P1 has ever been varied by the 2[nd] respondent. In the above view of the matter, it is clear that the approval granted to the appointment of the petitioner as Lab Assistant in the Higher Secondary Section w.e.f. 28.03.2003 remains temporary and provisional. Though it is contended that the petitioner had successfully completed the period of probation as Lab Assistant, no document is produced by the Manager to show that there was an order declaring the probation of the petitioner as completed. In the above view of the matter, since the approval of the appointment of the W.P.(C).No.8845/14 11 petitioner by Exhibit P1 was purely on temporary and provisional basis, I am of the opinion that in the absence of any orders varying Exhibit P1, the petitioner cannot be said to have been regularised against the post of Lab Assistant in the Higher Secondary School Section. In that view of the matter, in view of the settled position of law and the decision of a Full Bench of this Court in **Balakrishnan Nair v.Ram Mohan** [1998 (1) KLT 766], I am of the opinion that the lien of the petitioner in the post of peon in the High School Section cannot be said to have been terminated. The steps taken by the Manager or by the department reckoning the period of service as Lab Assistant for the purpose of grant of increments or grade, cannot be a reason to hold that the lien of the petitioner stands terminated in view of the dicta laid down by the Apex Court as well as this Court. - 10.In the result, Exhibit P6 order which proceeds on the basis that the petitioner's lien in the post of Peon in the High School Section stands terminated by this inclusion in the seniority list of non-teaching staff of the Higher Secondary School Section W.P.(C).No.8845/14 12 cannot be sustained. Exhibit P6 is therefore set aside. It is declared that the petitioner is liable to be considered for promotion as LDC in the vacancy which arose in the High School Section of the 5[th] respondent's school on 01.12.2013 taking into account his seniority as non-teaching staff in the High School Section. The 5[th] respondent is directed to pass orders appointing the petitioner as LDC in the vacancy which arose on 01.12.2003 and send the proposal for approval to the 4[th] respondent within a period of one month from the date of receipt of a copy of this judgment. It is so declared. The date of effect of the appointment is left open for consideration by the 4[th] respondent, who shall pass orders on the proposal for approval to be forwarded by the Manager within one month from the date of receipt of such proposal. - 11.It is submitted by the learned counsel for the Manager that the petitioner had been appointed as the Lab Assistant in the Higher Secondary School and that in case the petitioner's claim for appointment as LD Clerk in the High School Section is accepted by the District Educational Officer, any amount W.P.(C).No.8845/14 13 disbursed to the petitioner on account of his appointment as Lab Assistant should not be reckoned as the liability of the Manager. This aspect is clarified. The 4[th] respondent shall consider the question of notional and actual date of effect of the approval to be granted to the petitioner's appointment so that no amounts may be fastened on the Manager as liability. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj