Mushthaque v. State of Kerala

**WP(C) NO. 33621 OF 2019** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** ## **WP(C) NO. 33621 OF 2019** ## **PETITIONER/S:** MUSHTHAQUE.V AGED 42 YEARS H.S.A.(PHYSICAL SCIENCE),I.U.HIGHER SECONDARY SCHOOL,PARAPPUR,MALAPPURAM DISTRICT. BY ADVS. GEORGE ABRAHAM SHRI.JOBY D JOSEPH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,DEPARTMENT OF GENERAL EDUCATION,SECETARIAT,THIRUVANANTHAPURAM695001. 2 DIRECTOR OF GENERAL EDUCATION, JAGATHY,THIRUVANANTHAPURAM-695014. 3 DISTRICT EDUCATIONAL OFFICER, THIRURANGADI,MALAPPURAM-676306. 4 DISTRICT EDUCATIONAL OFFICER, THIRURANGADI,MALAPPURAM-676306. 5 MANAGER,I.U.HIGHER SECONDARY SCHOOL, OARAOOYR.P.O,KOTTAKKAL-676503. MALAPPURAM DISTRICT. ## **OTHER PRESENT:** SMT.NISHA BOSE, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 33621 OF 2019** **2** ## **P.V.KUNHIKRISHNAN, J** ## **--------------------------------------W.P.(C) No. 33621 of 2019** **-------------------------------------Dated this the 23[rd] day of March, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : (i) to Issue a Writ of Certiorari; or any other appropriate writ, order or direction, to quash Exhibit P-7 and P9 orders issued by the respondents 1 to 3. (ii) to issue a Writ of Mandamus; or any other appropriate writ, order or direction, directing the respondents 1 to 4 to approve the appointment of the petitioner as H.S.A. (Physical Science) for the period from 16/9/2002 to 14/7/2004. (iii) To declare that the vacancy available with the 5[th] respondent school consequent to the leave availed by Sri.A.C. Ashraf has to be filled up by an HSA (Physical Science) teacher and not by an HSA (English) teacher . (iv) To grant such other and further reliefs as this Hon'ble Court may consider just and proper in the facts and circumstances of the case.” [SIC] 2. The petitioner was appointed as HSA (Physical Science) on 16.09.2002. The said appointment was to a leave **WP(C) NO. 33621 OF 2019** **3** vacancy available in school is the submission. Later, he was appointed again on 15.07.2004 and the said appointment was approved by the department. The petitioner is continuing in the school as HSA (Physical Science) with approval. The Department rejected the approval of appointment of the petitioner during the period from 16.09.2002 to 14.07.2004 on the reason that the Manager ought to have appointed an HSA (English) instead of appointing the petitioner. It is the case of the petitioner that the Government passed GO(MS) No. 11/22-2/Gen.Edn dated 07.01.2002 and the said Government Order was initially set aside by this Court by virtue of the dictum laid down in **Suguna Prakash v. State of Kerala [2002 (3) KLT 488]** . Subsequently, the Division Bench set aside that judgment and restored the original order. It is the case of the petitioner that the appointment of the petitioner was during the interregnum period. Hence, the petitioner approached this Court by filing W.P.(C.) No. 23011/2009. This Court directed to consider this aspect by the Government. The grievance of the petitioner is that the Government has not considered the matter as directed in **WP(C) NO. 33621 OF 2019** **4** Ext.P8. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The main grievance of the petitioner is that the Government has not considered the issue in a proper perspective in Ext.P9, in the light of Ext.P8 judgment. It will be better to extract the relevant portion of Ext.P8 judgment. “3. Contention of the petitioner is that GO(MS) No.11/02 was set aside by this court in the decision in **Suguna Prakash v. State of Kerala** [2002 (3) KLT 488] holding that Government Order creating new cadre of H.S.A (English) cannot be enforced without there being corresponding amendment in the Kerala Education Rules. The said decision was rendered on 02/08/2002. But subsequently a Division Bench of this court had reversed the above said decision as reported in **Baiju v. Suguna Prakash** [2003(2) KLT 182]. The said decision was rendered on 16/11/2002. Since the appointment of the petitioner on 16/09/2002 was during the interregnum period, when validity of GO(MS) No.11/02 remained nullified, appointment of the petitioner is liable to be approved, is the contention. It is pointed out by the learned counsel appearing for the petitioner that on various occasions as illustrated in Exts.P5 to P8 the Government have sanctioned approval of various appointments on the basis that GO(MS) No.11/02 which stood set aside as per the decision of this court reported in [2002 (3) KLT 488] (supra). 4. Question whether appointment of the petitioner **WP(C) NO. 33621 OF 2019** **5** for the period from 16/09/2002 to 14/07/2004 can be approved on the basis that, as on the date of appointment GO(MS.)No.11/02 stood set aside by this court, is a matter which needs to be considered by the Government, at the first instance. Therefore this court is of the opinion that direction for fresh consideration of the matter by the Government would suffice to meet the ends of justice. 5. Under the above mentioned circumstances this writ petition is hereby disposed of by quashing Ext.P4 order to the extent it declined approval of the appointment of the petitioner. The Revision Petition filed by the 5th respondent in this regard shall be reconsidered by the Government and shall be disposed of afresh, after affording opportunity of personal hearing to the petitioner, the 5th respondent and the Educational Officer concerned. The Government shall take into consideration of the contentions mentioned above and a decision shall be taken considering the question with respect to the effect of the Division Bench decision reported in [2003 (2) KLT 182] (supra). While taking such decision the Government should also consider as to whether any approval was granted to similarly situated persons in any of the orders. 6. A decision in this regard shall be taken at the earliest possible, at any rate within a period of two months from the date of receipt of copy of this judgment. 7. It is made clear that this court has not expressed any opinion with respect to applicability of GO(MS.) No.11/02/GE dated 07/01/2002 as on the relevant date of appointment of the petitioner. The Government will be at liberty to take an independent decision in the matter considering all legal and factual aspects.” **WP(C) NO. 33621 OF 2019** **6** 5. Ext.P9 is the consequential order passed by the Government. It will be better to extract the relevant portion of Ext.P9 judgment. “The Government have examined the case in detail. Sri. Musthaque was not a 51 A claimant and there is no post in HSA (PS) during 2002-03 to retain him. As per the circular No. 67679/J1/2002/GEdn dated 26/2/2002, the one who was not a-51A/43 claimant cannot be regularized in the post of HSA (English). Hence the appointment in respect of Sri Musthaque. V for the period from 16/9/2002 to 14/7/2004 is rejected and the judgment dated 7/4/2015 is complied with accordingly.” 6. I am of the considered opinion that the Government has not considered the issue which is directed to be decided by this Court in Ext.P8 judgment. According to me, a reconsideration by the Government is necessary in this case, in the light of the specific directions issued by this Court in Ext.P8 judgment. Therefore, this writ petition is to be allowed, Ext.P9 can be set aside and the Government can be directed to reconsider the matter. Therefore, this writ petition is allowed in the following **WP(C) NO. 33621 OF 2019** **7** manner : - 1) Ext.P9 is set aside. - 2) The 1[st] respondent is directed to reconsider the matter in the light of the specific directions in Ext.P8 judgment as expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. - 3) The petitioner will produce a certified copy of this judgment along with the copy of this writ petition before the 1[st] respondent for compliance. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS **WP(C) NO. 33621 OF 2019** **8** ## **APPENDIX OF WP(C) 33621/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 16/9/2002 ISSUED BY THE MANAGER. EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 15/7/2004. EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/8/2007. EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/9/2015. EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER DATED 28/8/2002. EXHIBIT P6 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2004-05. EXHIBIT P7 TRUE COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 17/8/2004. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN W.P(C)NO.23011/09 DATED 7/4/2015 EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER G9(RT)NO.267/2016/GEN EDN.DATED 21/1/2016. EXHIBIT P10 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED FROM THE OFFICE OF THE HON'BLE MINISTER FOR EDUCATION DATED 10/2/2016.