N T Upper Primary School, Thondikulam, Noorani, Palakkad – 678 004 v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 12[ TH ] DAY OF JANUARY 2023 / 22ND POUSHA, 1944`** ## **`WP(C) NO. 40455 OF 2022`** ## **`PETITIONER:`** ``` N T UPPER PRIMARY SCHOOL THONDIKULAM, NOORANI, PALAKKAD - 678 004 REPRESENTED BY MANAGER K SARASWATHY, AGED 76 YEARS W/O SIVARAMAKRISHNA IYER , HOUSE NO. 32/768, NURANI VILLAGE, PALAKKAD -678 004 ``` ``` BY ADVS. U.BALAGANGADHARAN R.PRADEEP KUMAR ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM - 695 014 3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD- 678 001 4 THE ASSISTANT EDUCATIONAL OFFICER, KOPPAM, PALAKKAD -678 001 ``` ``` SMT NISHA BOSE, SR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.40455 of 2022 2 ## **J U D G M E N T** The petitioner states that he is the Manager of N T Upper Primary School, Thondikulam. He has approached this Court challenging Ext.P7 order issued by the 1[ st ] respondent and further directions to the 4[ th ] respondent to sanction one post of Office Attendant in the petitioner’s school for the academic year 2019-2020 and ancillary reliefs. 2. The contention of the petitioner is that the school, in respect of which the petitioner is the manager, has been sanctioned with a post of peon, and one Natarajan was working in the said post. Natarajan retired from service on 31.03.2011. Thereafter the post was not filled, and it remained vacant for several years. The petitioner asserts that under Rule 1 of Chapter XXIVA of KER, every Upper Primary School is entitled to appoint an Office Attendant/Peon, and the same is a statutory requirement. It is stated that by Ext.P2 order, the petitioner appointed one Sri. K.G Arun as Office Attendant on 02.12.2019, against the post which occurred on account of the retirement and which continued to exist thereafter. However, the W.P.(C) No.40455 of 2022 3 proposal for approval of the aforesaid Arun was declined on the ground that there was no sanctioned post. In the said circumstances, the petitioner submitted a revision petition before the 2[ nd ] respondent and later approached the 1[ st ] respondent by preferring Ext.P3 by invoking Rule 12F of Chapter XXIII of KER. The petitioner also preferred Ext.P4 revision petition invoking Rule 92 of Chapter XIVA of KER challenging the denial of approval of the appointment of Sri. Arun to the post of Office Attendant. 3. Pursuant to directions issued by this Court, the revision petitions were taken up, and Ext.P6 order was issued by the 1[ st ] respondent, directing the AEO to consider sanctioning the post when the staff fixation for the year 2020-2021 is finalized. The petitioner asserts that thereafter without issuing a notice to the petitioner and without affording an opportunity of being heard, Ext.P7 letter was issued virtually canceling Ext.P6. It is stated in the letter that Sri. Arun, who has been appointed as Office Attendant, is not entitled to be approved, and his appointment is void. The petitioner asserts that Ext.P7 order cannot be sustained under law, as the authority which passed Ext.P6 order has now become functus officio. The petitioner also asserts that going by the law laid down by this Court in **Bipin Pavithran V. and Another v. State of Kerala** [2021 (2) KLT 964], the post of Peon in W.P.(C) No.40455 of 2022 4 every school is mandatory, whether or not it has sufficient students. It is in the afore circumstances that this writ petition is filed seeking the following prayers; (i) Call for the records leading to Exhibit P7 and set aside the same by issuing writ in the nature of certiorari; (ii) Writ in the nature of mandamus commanding the 4[ th ] respondent to sanction one post of O.A. in petitioner school for the academic year 2019-2020 and approve the appointment as per Exhibit P.2. (iii) Writ in the nature of mandamus commanding the 4 respondent to approve the appointment of Sri. Arun as Office Attendant from 2.12.2019 on scale of pay with all consequential benefits. (iv) Declare that a post of Office Attendant is liable to be sanctioned in the petitioner school from the academic year 2018-2019 and the appointment made against the post is liable to be approved from 2.12.2019 with all consequential benefits; 4. Sri. U Balagangadharan, the learned counsel appearing for the petitioner, submits that Ext.P7 letter issued by the Government cannot be sustained under law. According to learned counsel, Ext.P6 order has been issued by correctly relying on the principles laid down in **Bipin Pavithran** (supra). However, while issuing Ext.P7, all that is stated is that the petitioner W.P.(C) No.40455 of 2022 5 had approached the Government without invoking statutory requirements. 5. The learned Government Pleader contends that Ext.P7 order cannot be unsettled, as it has been passed, taking note of the facts that the petitioner had approached the Government without availing the statutory remedies. 6. I have considered the submissions advanced. 7. In **Bipin Pavithran and Another v. State of Kerala and Others** [2021 (2) KLT 964], this Court has held that the denial of approval of the appointment of the petitioner therein as a Peon on the ground that the school is an “uneconomic one” was improper as the post of Peon was mandatory in every School whether or not it has sufficient students. **Bipin Pavithran** (Supra) was challenged by the Government by preferring Writ Appeal Nos.1346 of 2021, and their Lordships of the Division Bench had upheld the findings of the learned Single Judge holding that the post of Peon/Office Attendant was not one which was likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the School concerned. The relevant portion is in paragraphs Nos.6 to 8 of the judgment: W.P.(C) No.40455 of 2022 6 “6. We have given our anxious consideration to the submissions of the learned Government Pleader but find ourselves unable to accept the said contentions for the following reasons. Firstly, we find that unlike in the case of teaching staff, the provisions of Chapter XXIV B, read with Chapter XXIV A of the KER, mandate that in every Upper Primary School there can be appointed in the non-teaching establishment of such school one Peon (subsequently re-designated as Office Attendant). It is also discernible from the provisions of the KER that under certain circumstances, where the number of students exceeds a particular strength, an additional post of Peon can be sanctioned in Aided High Schools in the State. Inasmuch as we are in these Writ Appeals concerned only with Upper Primary Schools, the said provision pertaining to High Schools may not have any relevance. We thought it necessary to refer to the said provisions only because the learned Government Pleader brought to our notice two earlier Government Orders G.O.(MS) No-179/94/G. Edn. dated 20.10.1994 and G.O (MS) No.487/95/G. Edn. Dated 26.09.1995, both of which deal with the situation of closing down of uneconomic schools in the State and the retention of posts of teachers and non-teaching staff in such situations. A perusal of the Government Orders clearly reveals that the Government having examined the matter found that in lieu of ousting the teaching and non-teaching staff from their posts consequent to the school being declared uneconomic, as a special case they could be retained in the respective schools subject to the condition that, if any of the post which are likely to be abolished in staff fixation in the school fall vacant in the said school, that post should not be filled up on any account. Even assuming that the said Government Orders still hold the field and govern the appointment of non-teaching staff in uneconomic Aided U.P Schools in the State, we are of the view that the said Government Orders can have application only when the appointment made is to a vacancy in a W.P.(C) No.40455 of 2022 7 post that is likely to be abolished in staff fixation in the particular school. As already noted, in the instant cases, the posts of Peon/Office Attendant were not such as were likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the school concerned. We are, therefore, of the view that the Government Orders referred to by the learned Government Pleader can have no application to the facts and issues in the instant cases. 7. That brings us to the question as to whether there is any other Government Order or Circular, which enables the Government to reduce the benefits envisaged under the statute to persons appointed as Peon/Office Attendant pursuant to the statutory provisions under the KER. The learned Government Pleader has not been able to bring to our notice any such Circular and we find that his contentions based on the provisions in the Circulars dated 06.11.2012 cannot be accepted since the Circular admittedly applies only in respect of teaching staff in uneconomic schools in the State. His vehement contention that the mention of the phrase “all vacancies” in the said Circular would take within its ambit vacancies of non-teaching staff also cannot be legally countenanced for the Circular itself indicates that it applies only to teaching staff. At any rate, we are of the view that when the statutory provisions clearly mandate that there has to be a post of Peon/Office Attendant in a U.P. School, and there were in fact vacancies of Peon/Office Attendant in the schools in question which were filled by candidates whose eligibility for the post was never in dispute, the statutory benefit of a regular scale of pay cannot be taken away by a Circular. We are in agreement with finding of the learned Single Judge that the ambit of the statutory provisions cannot be curtailed/restricted by the provisions of any Circular issued by the Government. W.P.(C) No.40455 of 2022 8 8. The upshot of the above discussion is that we find the stand of the Educational Authorities/Government that the post of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on daily wage basis to be legally unsustainable. So long as there is a vacancy to an established post of Peon/Office Attendant, and the post is not one which is likely to be abolished in any staff fixation conducted in the school, the appointments made to the post have to be approved on regular scale of pay and not on daily wage basis” 8. In the case on hand, while issuing Ext.P6 order, the 1[ st ] respondent had rightly adverted to the principles laid down in **Bipin Pavithran** (supra) and had issued directions to the AEO to consider the grant of approval of Sri. Arun, as and when the staff fixation for the year 2021 is finalized. However, after passing such an order, 1[ st ] respondent has come up with Ext.P7 letter saying that the petitioner had approached the Government without exhausting the statutory remedies. Before issuing Exhibit P7 order, no opportunity was afforded to the petitioner. The law declared in **Bipin Pavithran** (supra) was also not adverted to while issuing Exhibit P7. In that view of the matter, I am of the considered opinion that Exhibit P7 order cannot be sustained under law. As Ext.P6 order was issued in terms of the law laid down by this Court after interpreting the statutory provisions and after reckoning all relevant aspects, respondents are bound to implement the directions in Ext.P6. W.P.(C) No.40455 of 2022 9 Resultantly, this writ petition will stand allowed. Ext.P7 will stand quashed. There will be a direction to the 1[ st ] respondent to implement Ext.P6 and pass appropriate orders as directed above. The needful shall be done expeditiously, in any event, within two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** avs W.P.(C) No.40455 of 2022 10 ## **`APPENDIX OF WP(C) 40455/2022`** ``` PETITIONER’S EXHIBITS: ``` ``` Exhibit P1 ``` ``` A TRUE COPY OF STAFF FIXATION ORDER NO D. DIS/B/1749/2015 DATED 13.4.2016 ISSUED BY THE 4TH RESPONDENT FOR THE YEAR 2015-16 ``` ``` Exhibit P2 A TRUE COPY OF APPOINTMENT ORDER DATED 2.12.2019 ``` ``` Exhibit P3 A TRUE COPY OF REVISION PETITION DATED 5.8.2021 SUBMITTED BY THE PETITIONER UNDER RULE 12F OF CHAPTER XXIII OF KER BEFORE THE FIRST RESPONDENT ``` ``` Exhibit P4 ``` ``` A TRUE COPY OF REVISION PETITION FILED BY THE PETITIONER UNDER RULE 92 OF CHAPTER XIVA OF KER BEFORE THE FIRST RESPONDENT DATED 5.8.2021 ``` ``` Exhibit P5 A TRUE COPY OF JUDGMENT DATED 17.9.2021 IN W.P.(C)NO. 16667/2021 OF THIS HON'BLE COURT ``` ``` Exhibit P6 A TRUE COPY OF GOVT. ORDER [MS] NO. 2670/2022/GEDN DATED 27.4.2022 ``` ``` Exhibit P7 A TRUE COPY OF GOVT. LETTER ISSUED BY THE 2ND RESPONDENT DATED 11.11.2022 ``` ``` RESPONDENTS’ NIL EXHIBITS: ```