Mohammed Jaleel P. v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936 WP(C).No. 36654 of 2009 (B) ---------------------------- PETITIONER: -------------------- MOHAMMED JALEEL.P., FULL TIME ARABIC TEACHER, B.T.M.U.P.SCHOOL, ALANKOD EDAPPAL, MALAPPURAM DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR. 5. THE ASSISTANT EDUCATIONAL OFFICER, EDAPPAL, MALAPPURAM DISTRICT. BY SR.GOVERNMENT PLEADER SRI.V.VIJULAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WPC NO.36654/2009 ## APPENDIX ## PETITIONER'S EXHIBITS: |EXT.P1:|TRUE COPY OF THE STAFF FIXATION ORDER DTD 29.7.2008| |---|---| |EXT.P2:|TRUE COPY OF THE APPEAL DTD 4.9.2009 BEFORE THE 3RD RESPONDENT| |EXT.P3:|TRUE COPY OF THE ORDER DTD 30.3.2009| |EXT.P4:|TRUE COPY OF THE APPEAL DTD 4.5.2009 BEFORE THE 2ND| ||RESPONDENT| |EXT.P5:|TRUE COPY OF THE ORDER DTD 14.10.2009| |EXT.P6:|TRUE COPY OF THE REVISION DTD 3.11.2009 SUBMITTED BEFORE THE| ||GOVERNMENT| |EXT.P7:|TRUE COPY OF GO(Ms)NO.371/2000 DTD 13.11.2000| |EXT.P8:|TRUE COPY OF THE CIRCULAR DTD 18.4.2002| |EXT.P9:|TRUE COPY OF THE ORDER DTD 30.4.2009 BY THE 5TH RESPONDENT| |EXT.P10:|TRUE COPY OF THE ORDER DTD 31.3.2009| |EXT.P11:|TRUE COPY OF THE INSPECTION REPORT ALONG WITH LETTER DTD| ||19.12.2008| |EXT.P12:|TRUE COPY OF THE ORDER DTD 26.2.2011| |EXT.P13:|TRUE COPY OF THE ORDER DTD 31.12.2010 ISSUED BY THE 2ND| ||RESPONDENT| |EXT.P14:|TRUE COPY OF THE ENDORSEMENT DTD 27.1.2011| |EXT.P15:|TRUE COPY OF THE REPRESENTATION DTD 11.1.2014 SUBMITTED BY THE| ||PETITIONER BEFORE THE GOVERNMENT.| ## RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ VPS PA TO JUDGE ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No.36654 of 2009 -------------------------Dated this the 16[th] day of July, 2014** ## **J U D G M E N T** The petitioner was appointed as Full-Time Arabic Teacher in B.T.M.U.P.School, Alankode by appointment order dated 6.6.2008 in the retirement vacancy of Smt.H.Safiath Beevi, who retired from service on 31.3.2008. Shortly thereafter, the Assistant Educational Officer, Edappal fixed the staff strength of the school for the academic year 2008-2009 as per Ext.P1 staff fixation order dated 29.7.2008. By that order, on account of the fact that the incumbent had retired from service on 31.3.2008, the Assistant Educational Officer sanctioned only a part time post of Junior Arabic Teacher in the school. The Manager thereupon filed Ext.P2 appeal dated 4.9.2008 before the Deputy Director of Education, Malappuram contending that a full-time post of Arabic teacher should have been sanctioned by diversion from Group C subjects. The Deputy Director of Education dismissed the appeal by Ext.P3 order dated 30.3.2009 on the short ground that the appeal is barred by limitation. 2. Aggrieved thereby, the Manager filed Ext.P4 appeal petition before the Director of Public Instruction, Thiruvananthapuram. By 2 W.P.(C) No.36654/2009 Ext.P5 order dated 14.10.2009, the Director of Public Instruction dismissed the appeal on the ground that there is no statutory support to divert periods from one subject to another. Aggrieved thereby, the Manager filed Ext.P6 revision dated 3.11.2009 before the Secretary to Government, General Education Department. In the instant writ petition filed on 17.12.2009 the petitioner challenges Exts.P3 and P5 orders and seeks the following reliefs: - _“(i) To issue a writ of certiorari quashing Exts.P3 and P5 as unjust, illegal and unsustainable._ - _(ii) To declare that the post held by the petitioner is that of Full Time Arabic Teacher and it is entitled to be treated so, and the petitioner is entitled to get all the benefits attached to the said post._ - _(iii) To issue a writ of mandamus directing the respondents to sanction the post held by the petitioner as that of Full Time Arabic Teacher with effect from 6.6.2008._ - _(iv) To issue a writ of mandamus directing the respondents to pay the entire salary due to the Full Time Arabic Teacher to the petitioner with effect from 6.6.2008 together with interest.”_ 3. Relying on Ext.P7 Government order dated 13.11.2000, it is contended that the Government have by the said order clarified that the posts created by virtue of Group C diversion cannot be treated as protected and that such full-time posts cannot be converted into part time posts and therefore, Ext.P1 order is to be suitably modified. Reliance is placed on Ext.P10 order dated 31.3.2009 issued by the Deputy Director of Education, Malappuram in respect of another school namely, V.P.U.P. School, Kaladi and Ext.P9 order dated 30.4.2009 W.P.(C) No.36654/2009 3 issued by the Assistant Educational Officer, Edappal in respect of that aided school to contend for the position that group C diversion of posts is permissible. 4. When the writ petition came up on 22.12.2009 this Court directed the State Government to examine Ext.P6 revision petition and pass orders thereon within three months from the date of receipt of a copy of the order. The Government accordingly considered Ext.P6 revision petition and issued G.O.(Rt) No.2390/10/G.Edn dated 3.6.2010. By that order, the Government allowed Ext.P6 revision petition filed by the Manager accepting his contention that diversion of group C posts is permissible and directed the Assistant Educational Officer to retain the full-time post of Arabic teacher in B.T.M.U.P.School, Alankode from the year 2008-09 if enough periods are available for diversion from group C subjects. 5. In the meanwhile, the Assistant Educational Officer declined to approve the petitioner’s appointment as full-time Junior Arabic teacher. The appeal filed by the Manager before the District Educational Officer was also rejected. The Manager thereupon moved the Director of Public Instruction by fling an appeal. The said appeal was allowed by Ext.P13 order dated 31.12.2010 and the Assistant Educational Officer was directed to approve the appointment of the W.P.(C) No.36654/2009 4 petitioner as full-time Junior Arabic Teacher from 6.6.2008 till the end of the academic year 2008-2009 on daily wages basis and on a regular basis from the beginning of academic year 2009-2010 onwards, if it is otherwise in order. Ext.P14 produced along with I.A.No.8480 of 2014 discloses that by order passed on 27.1.2011 the Assistant Educational Officer Edappal approved the petitioner’s appointment as Junior Arabic Teacher (Full Time) from 6.6.2008 to the closing date of academic year 2008-2009 on daily wages basis and on a regular basis with effect from the beginning of the academic year 2009-2010 onwards. The petitioner has aggrieved by the said order to the extent it denies approval on a regular basis for the period from 6.6.2008 onwards, filed Ext.P15 revision petition before the State Government and the said revision petition is pending. 6. It is evident from G.O.(Rt)No.2390/10/G.Edn dated 3.6.2010 that the grievance of the petitioner regarding the staff fixation order stands redressed. The grievance regarding approval of appointment also stands partly redressed by Ext.P13 order issued by the Additional Director of Public Instruction, Thiruvananthapuram and the consequential order dated 27.1.2011 issued by the Assistant Educational Officer Edappal. The grievances of the petitioner thus stand redressed substantially. The only remaining question is whether W.P.(C) No.36654/2009 5 he is entitled to have his appointment as Junior Arabic Teacher approved on a regular basis with effect from 6.6.2008. That issue is admittedly pending before the Government in Ext.P15 revision petition. In such circumstances, I am of the opinion that the only relief which is required to be granted at this stage in view of the subsequent events is to direct the State Government to dispose of Ext.P15 revision petition at the earliest. The petitioner was appointed on 6.6.2008. Six years have passed thereafter. The petitioner relies on the decision of the Apex Court in **State of Kerala v. Sneha Cheriyan** (2013 (1) KLT 755 (SC) and the decision of a learned single Judge of this Court in **Nair Service Society v. State of Kerala** (2013 (4) KLT 921) in support of his contention. In such circumstances, I deem it appropriate to direct the State Government to dispose of Ext.P15 revision petition expeditiously and in any event within an outer limit of three months from the date on which the petitioner produces a certified copy of this judgment along with a copy of the writ petition and a copy of I.A.No.8480 of 2014 before the Secretary to Government, General Education Department. I accordingly dispose of the writ petition with a direction to the State Government to dispose of Ext.P15 revision petition expeditiously and in any event within an outer limit of three months from the date W.P.(C) No.36654/2009 6 on which the petitioner produces a certified copy of this judgment along with a copy of the writ petition complete in all aspects as also a copy of I.A.No.8480 of 2013 before the Secretary to Government, General Education Department. The State Government shall before disposing of the revision petition issue notice to and afford the petitioner, the Assistant Educational Officer, Edappal as also the Manager of the school an opportunity of being heard and shall after orders are passed, communicate copies thereof to all the parties. The Government shall while disposing of the revision petition have due regard to the law laid down by the Apex Court in **State of Kerala v. Sneha Cheriyan** (2013 (1) KLT 755 (SC) and the decision of this Court in **Nair Service Society v. State of Kerala** (2013 (4) KLT 921). **P.N.RAVINDRAN,** **(JUDGE)** vps