Muhammed Shabeer M. v. Manager, Lajnathul Muhammadiya Higher Secondary School, Alappuzha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932** **WP(C).No. 22107 of 2005(F)** **---------------------------------------** ## **PETITIONER(S):** **------------------------** **MUHAMMED SHABEER. M., AGED 36 YEARS, S/O.SRI.M. MOOSAKUTTY, LAB ASSISTANT, L.M.H.S.S., ALAPPUZHA.** **BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR, SRI.K.KRISHNANKUTTY NAYAR, SRI.B.SOMADASAN.** **RESPONDENT(S):** **--------------------------** **1. THE MANAGER, LAJNATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL, ALAPPUZHA.** **2. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA.** **3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** **4. SRI.AJAS. E.M., LOWER DIVISION CLERK, L.M.H.S.S., ALAPPUZHA.** **R1 & R4 BY ADV. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA.** **R2 & R3 BY GOVT. PLEADER MR.K. SANILKUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **WP(C) NO. 22107/2005-F** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 20/09/1999 ISSUED BY THE FIRST RESPONDENT.** **EXT.P2(a): COPY OF THE DECLARATION DATED 20/09/1999 GIVEN BY THE FIRST RESPONDENT.** **EXT.P2(b): COPY OF THE DECLARATION DATED 20/09/1999 GIVEN BY THE FIRST RESPONDENT.** **EXT.P3: COPY OF THE REPRESENTATION DATED 14/05/2005 FILED BEFORE THE FIRST RESPONDENT BY THE PETITIONER.** **EXT.P4: COPY OF THE ADVERTISEMENT APPEARED IN THE MALAYALA MANORAMA DAILY DATED 20/05/2005.** **EXT.P5: COPY OF THE REPRESENTATION DATED 01/06/2005 SUBMITTED TO THE FIRST RESPONDENT WITH COPY TO THE SECOND AND THIRD RESPONDENT.** **EXT.P6: COPY OF THE JUDGMENT DATED 21/06/2005 IN WP(C) NO. 18470/2005. EXT.P7: COPY OF THE ORDER NO.M/1/LMHSS/ALAPPUZHA DATED 11/07/2005.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(a): COPY OF THE DECISION REPORTED IN 2004 (3) K.L.T. CASE NO.2 (S.N.2). EXT.R1(b): COPY OF THE DECISION REPORTED IN 2000 (2) K.L.T. 109 (F.B.).** ## **//TRUE COPY//** **P.S. TO JUDGE** **rs** **C.R** ## **C.T. RAVIKUMAR, J. --------------------------------------------** ## **W.P.(C). NO.22107 OF 2005** ## **--------------------------------------------** Dated this the 11[th] day of August, 2010 ## **JUDGMENT** The petitioner who is working as Laboratory Assistant in the Higher Secondary section of Lajnathul Muhammadiya High School, Alappuzha filed this Writ Petition seeking declaration that the appointment of the fourth respondent to the post of Lower Division Clerk in the High School section of the said school is illegal and that he is entitled to be promoted to the said post of L.D.Clerk that arose with effect from 1.7.2005. The further prayer is for issuance of a writ of mandamus commanding the first respondent-Manager to promote the petitioner to the post of L.D.C in the high school section of the said school forthwith. 2. The claim of the petitioner for the aforesaid reliefs are founded on the following factual matrix:- He was appointed as Laboratory Assistant as per Ext.P1 order of the first respondent with effect from 20.9.1999. The said appointment was approved as per order dated 2.3.2005 with retrospective effect from 28.3.2003. He has passed Pre-Degree and also has passed the **W.P.(C) NO.22107/2005** 2 departmental tests in KER and MOP in June, 2000. A vacancy in the post of L.D clerk in the high school section of the said school arose with effect from 1.7.2005 on account of retirement on superannuation of one Smt.Sakeenath Beevi. Thereupon, the petitioner submitted Ext.P3 representation to the first respondent – Manager to consider him for promotion to the said post In the meanwhile, the first respondent made Ext.P4 advertisement on 20.5.2005 inviting applications for appointment to the said post of L.D.Cerk. Pursuant to Ext.P4, the petitioner has submitted Ext.P5 representation. It carried a contention that by virtue of his appointment as Laboratory Assistant in the higher secondary section of the school on 20.9.1999, he was entitled to get promotion against the aforesaid vacancy of L.D.Clerk that occurred in the high school section of the said school on 1.7.2005. Non-existence of promotional avenue to Laboratory Assistants was also highlighted therein. According to him, when a vacancy of L.D.Clerk arise in the high school section under the educational agency and when a qualified hand is available under the higher secondary section, the first respondent is bound to promote that qualified hand. Further, it is contended that as per Rule 7 of Chapter XXIV-B of the **W.P.(C) NO.22107/2005** 3 Kerala Education Rules regarding appointment, promotion, seniority etc. contained in Chapter XIVA of the Kerala Education Rules applicable to teachers of aided schools shall mutatis mutandis apply to non-teaching staff in aided schools. Note 1 to Rule 1 of Chapter XIVA of the KER provides that a member of the non-teaching staff under the category of clerks, Peons shall be eligible for appointment as teachers subject to qualifications. That apart, as per Rule 43 of Chapter XIVA of the KER, vacancies in the higher grade post shall be filled up by promotion of qualified hands in the lower grade according to the seniority. It is contended that the combined effect of the aforesaid provisions would make a qualified person under the higher secondary section of a particular educational agency entitled to get promotion to the cadre of L.D.Clerk in the high school section under the same educational agency. That apart, it is contended that Chapter XXXII of the KER provides for the method of appointment and qualifications of teachers and non-teaching staff in the aided Higher Secondary schools. As regards the appointment of L.D.Clerk, it is provided thereunder as follows: Lower Division Clerk (1) By promotion from **W.P.(C) NO.22107/2005** 4 qualified Peons, Sweepers and other Staff under the Educational Agency (2) In the absence of (1) above, by direct recruitment It is based on his own interpretation to the aforementioned provisions under the KER that the petitioner seeks a claim for promotion to the post of L.D.Clerk that occurred in the high school section of the said school on 1.7.2005. 3. Earlier, raising grievance of delay in the matter of disposal of his representations and inaction on the part of the first respondent to consider his claim for promotion, the petitioner had approached this Court by filing Writ Petition No.18470/2005. It was disposed of as per Ext.P6 judgment with a direction to the first respondent to dispose of Ext.P3 representation therein within six weeks from the date of production of copy of the judgment. According to the petitioner, ignoring the **W.P.(C) NO.22107/2005** 5 information regarding Ext.P6 judgment, hasty steps were taken by the first respondent and a written test and interview were respectively conducted on 25.6.2005 and 29.6.2005. In fact, according to the petitioner, the fourth respondent was selected based on the said written test and interview and was given appointment orally and even without signing the attendance register he is performing his duties. Later, based on Ext.P6 judgment, the first respondent has considered the representation submitted by the petitioner and rejected the same as per Ext.P7 order dated 11.7.2005. It is in the said circumstances that the petitioner approached this Court by filing this Writ Petition with the aforementioned prayers. 4. Separate counter affidavits have been filed by respondents 1 and 3 in this Writ Petition. As per the third respondent, the appointment of teaching and non- teaching staff in the aided higher secondary schools are being done as per Chapter XXXII of the KER whereas such appointments are effected in aided high schools and high school section of Higher Secondary schools in terms of Chapters XXIV B and XIVA of the KER. It is specifically stated in the counter affidavit that the petitioner cannot be regarded as a person among the non- teaching staff of the said school **W.P.(C) NO.22107/2005** 6 eligible for the purpose of promotion to the post of L.D.C under the high School section of the school. In the counter affidavit filed by the first respondent, it is stated that the starting of higher secondary in the year 1998 was not an upgradation of the high school whilst it was, in fact, starting of a higher secondary school. It is further stated that as relates the higher secondary section of a school or a Higher Secondary School, administrative control vests with the Director of Higher Secondary Education and as regards the high school sections, it vests with the Director of Public Instructions. Being an appointee directly into the higher secondary section, he cannot stake any claim for promotion to the post of L.D.Clerk occurring in the high school section relying on Rule 43 of Chapter XIVA of the KER, it is contended. The contentions of the petitioner are unsustainable in the light of the Full Bench Decision of this Court reported in **Varghese v. Deputy Director of Education (2000 (2) KLT 109)** and decision reported in **Krishnankutty & others v. State of** **Kerala (1998 (2) KLJ 301)** . It is further contended that as per the decision in **1998 (2) KLJ 301 (supra)** , a Division Bench of this Court held that the higher secondary system is totally outside the purview of the KER **W.P.(C) NO.22107/2005** 7 and therefore, Chapter XIVA of KER has no application. That apart, it is contended that the petitioner has no lien in the non-teaching staff of the high school section and being an appointee to a regular post of Lab Assistant in the higher secondary section of the school, he cannot claim for lien in the high school section or claim that he is liable to be considered for promotion under a vacancy occurred in any category under the high school section by virtue of Rule 43 of Chapter XIVA of KER. To buttress the contentions, the petitioner relied on the decisions of this court reported in **Sam Joseph v. State of Kerala (2009 (3) KLT 99), Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha (2006( 3) KLT 867)** and **Jayasree v. Director of Higher Secondary Education (2009 (2) KLT 352** . Admittedly, there is nothing under Rule 7 of Chapter XIV B and XIVA of the KER to suggest that the posts under the higher secondary section fall under the feeder category for promotion to the post of L.D.C in high school section merely because for appointment to the post of L.D.Clerk under the higher secondary section, promotions have been effected from qualified peons/sweepers and other staffs under the educational agency. The petitioner cannot contend that he should be **W.P.(C) NO.22107/2005** 8 regarded as a person falling under the feeder category for promotion to the post of L.D.Clerk in the high school section as long as he is an appointee directly to the higher secondary section of the school and did not have a lien under the high school section. Therefore, I cannot countenance the contentions of the petitioner and uphold that he is entitled to be considered as a 4B claimant under Chapter XIVA of the KER ignoring the fact that he was a regular appointee to the higher secondary section of the school. Therefore, no illegality can be attributed to the action on the part of the first respondent in inviting applications for direct recruitment to the post of L.D.Clerk that occurred in the high school section on 1.7.2005 in the absence of claimants under Rule 43 in the feeder category for promotion to the post of LDC. There is no merit in the contentions of the petitioner and accordingly, the Writ Petition is dismissed. ## **(C.T. RAVIKUMAR, JUDGE)** ## **spc** **W.P.(C) NO.22107/2005** 9 **C.T. RAVIKUMAR, J.** **W.P.(C) NO.22107/2005** 10 **JUDGMENT September, 2010**