K.J. Ronichan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 15TH DAY OF DECEMBER 2017/24TH AGRAHAYANA, 1939** **WP(C).No. 16238 of 2014 (D) ----------------------------** **PETITIONER:** - **-----------** **K.J.RONICHAN, S/O.JOSEPH, FULL-TIME MENIAL, HOLY FAMILY HIGHER SECONDARY SCHOOL, MUTTAM, CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** **RESPONDENT:** - **------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, ALAPPUZHA DISTRICT-685 014..** **3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA DISTRICT-688001.** **4. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA DISTRICT-688524.** **5. THE CORPORATE MANAGER, ARCHDIOCESAN CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF ERNAKULAM, ANGAMALI, RENEWAL CENTRE, KALOOR, ERNAKULAM DISTRICT-682017.** **R1-R4 BY GOVERNMENT PLEADER (SR.) SRI.T.K.SHAJAHAN R5 BY ADV. SRI.V.M.KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16238 of 2014 (D)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXT.P1 COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 31.7.2008** **EXT.P2 COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1.3.2010** **EXT.P3 COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 1.11.2008** **EXT.P4 COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF EDUCATION DATED 1.6.2009** **EXT.P5 COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 16.10.2009** **EXT.P6 COPY OF THE ORDER OF THE MANAGER DATED 9.4.2012** **EXT.P7 COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 16.8.2012** **EXT.P8 COPY OF THE ORDER OF THE GOVERNMENT DATED 17.7.2013.** **EXT.P9 COPY OF THE ORDER OF THE GOVERNMENT DATED 1.10.2013 EXT.P10 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) 30720/2013-DATED 12.12.2013** **EXT.P11 COPY OF THE G.O(RT)NO.1899/2014/G.ED.DATED 16.05.2014** **EXT.P12 COPY OF THE TEACHER'S ATTENDANCE REGISTER OF THE SCHOOL** **EXT.P13 COPY OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 11.10.2010** **EXT.P14 COPY OF THE G.O.(RT)NO.1207/14/G.EDN.DATED 06.03.2014 OF THE GOVERNMENT.** **EXT.P15 COPY OF THE JUDGMENT IN W.P.(c) NO.6847/2003-M DATED 8.4.2008.** **RESPONDENT'S EXHIBITS: NIL ----------------------** **TRUE COPY** **PA TO JUDGE** Scl. ## **DEVAN RAMACHANDRAN, J.** ## **-------------------------------------** W.P.(C) No.16238 of 2014 -------------------------------------Dated this the 15[th] day of December, 2017 ## **JUDGMENT** The petitioner asserts to have been appointed as a Fulltime Menial in the services of the Holy Family Higher Secondary School, Muttam, Cherthala, which is under the corporate management of the 5[th] respondent. The petitioner has placed on record Ext.P1, which he claims is his initial order of appointment, which shows that he was appointed in a leave vacancy with effect from 31.7.2008 till 28.2.2010. 2. According to the petitioner, this vacancy arose because the Full-time Menial in service, a certain Sri.Antony took leave till 28.2.2010. The petitioner submits that even though Sri.Antony was to return back to duty with effect from 1.3.2010, he had refused to do so, compelling the authorities to issue Ext.P6 order removing him from service. The petitioner says that when Sri. Antony was so removed from W.P.(C) No.16238 of 2014 -2- service, he was re-appointed, based on Ext.P2 appointment order stated to have been issued by the corporate management, dated 1/03/2010. The petitioner is seen therein to have been appointed with effect from 1.3.2010 to a regular vacancy, which apparently arose on account of Sri.Antony not rejoining service, as mentioned above. 3. When the Corporate Manager placed the appointment orders of the petitioner for approval before the competent statutory Authorities, they were rejected through Ext.P3 order, wherein the approval with respect to Ext.P1 appointment order was denied and Ext.P4 order, wherein the approval with respect to Ext.P2 appointment was not granted. This led to the manager approaching the statutory authority in the hierarchy of the Kerala Educational Act and Rules ('KER' for short) which culminated in Exts.P8 order. As per Ext.P8 order, the service of the petitioner was directed to be regularised from 31.7.2008 to 31.3.009 and from 1.6.2009 to 28.2.2010, but only on daily wage basis. The manager appears W.P.(C) No.16238 of 2014 -3- to have filed a review application before the Government against Ext.P8, which led to Ext.P9 order, wherein it was held that the provisions of Government order G.O.(P) No.104/08/G.Edn. dated 10/6/2008 is applicable to nonteaching staff also, meaning thereby that the petitioner's scale of pay cannot be approved because he has been appointed midway during the academic year. 4. The petitioner thereafter appears to have challenged Exts.P8 and P9 orders by filing W.P.(C) No.30720 of 2013 before this Court which concluded in Ext.P10 judgment wherein this Court quashed both Exts.P8 and P9 orders and directed the competent secretary of the Government to reconsider the revision petition filed by the manager of the school against the refusal of the approval of the petitioner's appointment. The competent secretary of the Government subsequently considered the matter and issued Ext.P11 order, again rejecting the approval of the petitioner's service, which order has been impugned in this writ petition. W.P.(C) No.16238 of 2014 -4- 5. I have heard the learned counsel for the petitioner Sri.M.Sajjad, the learned Standing Counsel appearing for the fifth respondent Sri.K.T.Thomas and the learned Senior Government appearing for respondents 1 to 4. 6. I have examined Ext.P11 order which is impugned in this writ petition. As per this order, the Secretary of the Government has been pleased to reject the revision petition filed by the manager on two grounds. For the first, it has been held therein that since the rigor of government order No.104/2008 is applicable, the petitioner's prayer cannot be approved. For the second, it has been found that the petitioner was, in fact, appointed only on 1.6.2010 and not on 1.3.2010, as has been asserted by the manager, and therefore, that action should have been taken against the petitioner and the manager for producing 'falsified documents'. 7. On a reading of the impugned order, it become discernible that the competent Authority has arrived at the above findings on account of the fact that even though Ext.P6 W.P.(C) No.16238 of 2014 -5- order was issued by the competent Authority to terminate the services of the aforementioned Sri.Antony only in the year 2012, the then manager of the school had issued Ext.P2 order pre-dating it as 1.3.2010, showing the petitioner's appointment to be with effect from that date. The Authority also found that the Government order No.104/2008 is applicable and, therefore, that the petitioner's appointment which is admittedly during an academic year, which cannot be considered for fixing his pay scale. 8. Sri.Sajjad, the learned counsel appearing for the petitioner refuted the various allegations contained in Ext.P11 saying for the first that, G.O.No.104/2008 would not be applicable in view of the judgment of the honourable Supreme Court in **State of Kerala v. Sneha Cheriyan [2013 (1) KLT** **755]** . Secondly, he also asserts that the Full-time Menial cannot be seen to be a non-vacation staff and that their service are required even during vacation. Thirdly, he relies the Government order No.275/99/G.Edn. dated 9.11.1999, W.P.(C) No.16238 of 2014 -6- wherein the Government has clarified that the services of leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. Sri.Sajjad, further submits that it is not in dispute that the aforementioned Sri.Antony had taken leave and that his client had been appointed, through Ext.P1, in that vacancy from 31.7.2008 to 28.2.2010. According to him, since G.O.No.104/2008 is not applicable, the petitioner's scale ought to have been fixed taking into account the undisputable fact that he had worked in the school in the period shown in Ext.P1. As regards Ext.P2 order is concerned, he says that the petitioner had worked in the school from 1.3.2010 onwards and he has produced Ext.P12, which is an extract of the attendance register, to show this factum. According to him, therefore, the facts noted in Ext.P11 order are contrary to the truth and the petitioner ought to have been granted the approval, if not regularisation, in terms of the Government order mentioned above. W.P.(C) No.16238 of 2014 -7- 9. Sri.K.T.Thomas, the learned counsel appearing for the fifth respondent management contends that they came into the picture only in the year 2010, subsequent to the appointment of the petitioner and that the management of the school was earlier with another individual manager. According to him, even though the fifth respondent did not make the appointments, the petitioner deserves to be granted approval or regularisation, as the case may be, since he has, in fact worked in the school, as has been asserted by him. 10. The learned Senior Government Pleader in opposition of all the above submissions, supports Ext.P11 order and says that the petitioner is not entitled to any relief since he has approached this Court with unclean hands. The learned Government Pleader vehemently says that in an earlier proceedings, it was clearly asserted by the Manager that the petitioner was appointed only with effect from 1.6.2010, whereas in the present proceedings what has been requested is the approval of the petitioner with effect from 1.3.2010. He W.P.(C) No.16238 of 2014 -8- says therefore that Ext.P11 order is irreproachable and that it should be allowed to be implemented. 11. I have considered the syllogistic submissions made by the various learned counsel as above. I am afraid that I am unable to take an affirmative view in this regard for the reason that the facts involved are not really clear. I say this because even when the petitioner and the fifth respondent maintains that the former had worked in the school continuously ever since he was appointed through Ext.P1, in Ext.P11 order, the authority has concluded factually that he had not worked between 1.3.2010 and 1.6.2010. The Authority perhaps was justified in holding so, because nothing was placed before him to establish that the petitioner had worked for such period. However, in this writ petition, the petitioner has produced Ext.P12 attendance register, which is also vouched by the fifth respondent, to show that he had continuously worked for that period. This fact was not available to the information of the statutory Authority while issuing Ext.P11. There is also W.P.(C) No.16238 of 2014 -9- another reason why this Court may not be in a position to exercise jurisdiction at this point of time. This is because the statutory Authority while issuing Ext.P11 has not considered the impact of the judgment of the honourable Supreme Court in _**Sneha Cheriyan**_ **(supra)** . If this had been done, then the Authority would have perhaps concluded in a different manner because the impact of G.O.No.104/2008, especially in view of the judgment above, now stands altered, perhaps in favour of the petitioner. Since these are matters which squarely fall within the domain and purlieu of facts, it is certain that this Court, while acting under Article 226 of the Constitution, would not be in a position to conclusively take a view on the same. I am certainly of the opinion that these are matters that require to gain the attention of the competent Authorities since they alone will have the competency to consider these issues, especially with respect to the analysis of the facts that may be placed before it. 12. In such circumstances, I deem it appropriate to W.P.(C) No.16238 of 2014 -10- order this writ petition quashing Ext.P11, not because I have considered it on merits, but to enable a reconsideration of the entire facts and circumstances, as are now detailed by the petitioner, in its proper perceptive and in the confines of the submissions made before me so as to obtain a final view. I order so. 13. Consequently, the competent secretary of the first respondent Government of Kerala will be enjoined to reconsider the revision filed by the petitioner, which led to Ext.P11 order, adverting to the observations in this judgment and to the various contentions to be raised before it by the petitioner and the manager, specifically with respect to the impact of the judgment of the Honourable Supreme Court in _**Sneha Cheriyan**_ **(supra)** as also the documents, that may be placed before it by the petitioner, to show that he worked between 1.3.2010 and 1.6.2010 uninterruptedly. 14. In such circumstances, this writ petition is disposed of with a direction to the competent secretary to afford an W.P.(C) No.16238 of 2014 -11- opportunity of being heard to the petitioner and the fifth respondent manager of the school and to take a final decision as directed above, as expeditiously as possible, but not later than three months from the date of receipt of a copy of this judgment. This writ petition is thus ordered, but I deem it appropriate not to make any order as to costs and leave the parties to suffer their respective costs. **Sd/DEVAN RAMACHANDRAN JUDGE** Scl/15.12.2017