M. MUHAMMED SHAKKIR v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945** ## **WP(C) NO. 17858 OF 2023** ## **PETITIONER:** M.MUHAMMED SHAKKIR AGED 40 YEARS SON OF MUHAMMED SALI, UPPER PRIMARY SCHOOL ASSISTANT, SCV BOYS HS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT - 695 304. (RESIDING AT SALAMATH MANZIL, KANNYAKULANGARA, VEMBAYAM P O, THIRUVANANTHAPURAM DISTRICT -, PIN - 695615 BY ADVS. V.A.MUHAMMED M.SAJJAD ## **RESPONDENTS:** 1 STATE OF KERALA THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, THIRUVANANTHAPURAM-695 001, PIN - 695001 2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014, PIN - 695014 3 THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM - 695 036., PIN - 695036 4 THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM DISTRICT - 695 101., PIN - 695101 5 THE MANAGER, NOBLE GROUPS OF SCHOOLS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT - 695 304., PIN - 695304 6 THE HEADMASTER, SCV BOYS HS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT - 695 304, PIN - 695304 7 THE PRINCIPAL, SSV GHSS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT - W.P (C) No.17858 of 2023 2 695 304., PIN - 695304 8 THE HEADMASTER, CV LPS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT - 695 304., PIN - 695304 9 THE HEADMASTER SNV HSS, PANAYARA, VARKALA, THIRUVANANTHAPURAM DISTRICT - 695 145, PIN - 695145 10 SMT. REMA DEVI HSST (MALAYALAM) SSV GHSS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT - 695 304, PIN - 695304 11 SMT. INDU KRISHNA LPSA SNV HSS, PANAYARA, VARKALA, THIRUVANANTHAPURAM DISTRICT - 695 145., PIN - 695145 ## **OTHER PRESENT:** SMT.SURYA BINOY, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.17858 of 2023 3 ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** W.P (C) No.17858 of 2023 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 2[nd] day of June, 2023 ## **JUDGMENT** This writ petition is filed with the following prayers:- _“(i) declare that the Petitioner is entitled to be shifted against the regular vacancy of UPSA/LPSA w.e.f 04.06.2012 in preference to the 10[th] and 11[th] Respondents._ _(ii) call for Exhibits P-4 P-5.P-9.P-12 and P-13, P-18 and set aside the originals of the same to the extent it granted appointment and approval to 10[th] and 11[th] Respondents from 04.06.2012 onwards in preference to the Petitioner as UPSA/LPSA against permanent vacancy._ _(iii) call for Exhibit P-14 and set aside the original of the same to the extent it failed to consider the claim of the Petitioner for approval as UPSA against a permanent vacancy from 04.06.2012 in preference to the 10[th] Respondent._ _(iv) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to grant appointment and approval to the Petitioner as UPSA against a permanent vacancy w.e.f 04.06.2012 in preference to 10[th] Respondent and consequential benefits there on._ W.P (C) No.17858 of 2023 4 _(v) issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to grant appointment and approval to the petitioner as LPSA against a permanent vacancy w.e.f 04.06.2012 in preference to the 11[th] Respondent and consequential benefits there on._ _(vi) issue a writ of mandamus or other appropriate writ order or direction directing the 1[st] Respondent to take a decision on Exhibits P-7,P-8 and P-15 adverting to Exhibits P-6, P-20, P-21 and P-22 with notice to the Petitioner in a time bound manner._ _(vii) to dispense with filing of English translation of vernacular documents produced in the Writ Petition._ _(viii) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” (SIC)_ 2. The petitioner is challenging mainly Ext.P18 order passed by the Government in a revision filed by the petitioner. This Court perused Ext.P18. 3. When a revision under Rule 92 Chapter XIV A KER is considered, this is not the way in which a revision is to be disposed. This Court in _**Sudheer T. vs. M.V.Susheela and others (2009 (3) KHC 991)**_ considered this point and made certain observations. The observation is extracted hereunder:- W.P (C) No.17858 of 2023 5 _“So, whatever be the nature of the jurisdiction, whether it be appellate or revisional, conferred on the Government, they must take the decision, as provided under Art.166 of the Constitution of India, read with the relevant Rules of Business.”_ 4. In the light of the same, I am of the considered opinion that Ext.P18 is not a speaking order. I do not want to make any observation on merit and I am of the considered opinion that Ext.P18 can be set aside on the simple reason that it is not a speaking order and not in tune with the principle laid down by this Court in _**Sudheer T. vs. M.V.Susheela (supra).**_ Therefore, Ext.P18 can be set aside and there can be a direction to the Government to consider Exts.P7, P8 and P15 in the light of Exts.P6, P20, P21 and P22. Therefore, this writ petition is allowed in the following manner:- i) Ext.P18 is set aside. ii) The 1[st] respondent is directed to consider Exts.P7, P8 and P15, after giving an opportunity of hearing to the petitioner and respondent Nos. 5 to 11 , as expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. W.P (C) No.17858 of 2023 6 iii) While deciding this matter, the 1[st] respondent also consider the applicability of Exts.P6, P20, P21 and P22. v) The petitioner will produce a certified copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng W.P (C) No.17858 of 2023 7 ## **APPENDIX OF WP(C) 17858/2023** PETITIONER EXHIBITS |Exhibit P-1|TRUE COPY OF THE APPOINTMENT ORDER OF| |---|---| ||THE PETITIONER DATED 01.06.2011| |Exhibit P-2|TRUE COPY OF THE APPOINTMENT ORDER OF| ||THE PETITIONER DATED 03.06.2013| |Exhibit P-3|TRUE COPY OF THE PROCEEDINGS OF THE| ||DISTRICT EDUCATIONAL OFFICER, ATTINGAL| ||VIDE ORDER NO. B6/917/2021/DEO/D.DIS| ||DATED 12.03.2021| |Exhibit P-4|TRUE COPY OF THE APPOINTMENT ORDER OF| ||SMT. INDU KRISHAN S DATED 01.06.2011| |Exhibit P-5|TRUE COPY OF THE PROCEEDINGS OF THE| ||ASSISTANT EDUCATIONAL OFFICER, VIDE| ||ORDER NO. 3/677/2020/D.DIS DATED| ||04.06.2020| |Exhibit P-6|TRUE COPY OF THE GO(MS) NO.| ||275/99/G.EDN DATED 09.11.1999| |Exhibit P-7|TRUE COPY OF THE REVISION PETITION| ||SUBMITTED BY THE PETITIONER BEFORE THE| ||GOVERNMENT DATED 29.06.2021| |Exhibit P-8|TRUE COPY OF THE LETTER SUBMITTED BY| ||THE PETITIONER BEFORE THE GOVERNMENT| ||DATED 25.12.2021| |Exhibit P-9|TRUE COPY OF THE APPOINTMENT ORDER OF| ||THE 10TH RESPONDENT DATED 11.11.2020| |Exhibit P-10|TRUE COPY OF THE OBJECTION SUBMITTED BY| ||THE PETITIONER BEFORE THE DISTRICT| ||EDUCATIONAL OFFICER, ATTINGAL DATED| ||28.09.2020| |Exhibit P-11|TRUE COPY OF THE OBJECTION SUBMITTED BY| ||THE PETITIONER BEFORE THE DIRECTOR| ||DATED 30.10.2020| W.P (C) No.17858 of 2023 8 - Exhibit P-12 TRUE COPY OF THE ORDER NO. ET5/4658/2020/DGE/K.DIS DATED 05.11.2020 OF THE DIRECTOR - Exhibit P-13 TRUE COPY OF THE ORDER NO. B6/3928/2020/DEO/D.DIS DATED 11.11.2020 OF THE DISTRICT EDUCATIONAL OFFICER - Exhibit P-14 TRUE COPY OF GO(RT) NO.1761/2021/G.EDN DATED 19.02.2021 - Exhibit P-15 TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 25.11.2021 - Exhibit P-16 TRUE COPY OF THE GOVERNMENT LETTER NO. A1/191/2021/G.EDN - PART II DATED 02.02.2022 ADDRESSING THE DIRECTOR - Exhibit P-17 TRUE COPY OF THE JUDGMENT IN WPC NO.34643/2022 DATED 02.11.2022 - Exhibit P-18 TRUE COPY OF THE LETTER NO. A1/191/2021/G.EDN DATED 13.04.2023 OF THE GOVERNMENT - Exhibit P-19 TRUE COPY OF THE STAFF FIXATION ORDER NO. D.DIS/B/2054/2019 DATED 02.03.2020 FOR THE ACADEMIC YEAR 2012-13 FOR SANCTIONING THE ADDITIONAL VACANCY - ExhibitP-20 TRUE COPY OF GO(RT) NO. 4002/2010/G.EDN DATED 14.09.2010 - Exhibit P-21 TRUE COPY OF G.O(RT)NO.2613/2018/G.EDN DATED 12.07.2018, - Exhibit P-22 TRUE COPY OF GO(RT) NO. 3568/2019/G.EDN DATED 04.09.2019 - Exhibit P-23 TRUE COPY OF THE GO(RT) NO. 4425/2009/G.EDN DATED 23.10.2009