P. Sasikumar v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 ## **WP(C).No. 15902 of 2007(R)** ## **PETITIONER:** P.SASIKUMAR, S/O SIVARAMA PANICKER, PATTARODATH KIZHAKETHIL, KURATTISSERY, MANNAR, MAVELIKARA(PEON, N.S.HIGH SCHOOL FOR GIRLS, MANNAR). BY ADV. SRI.S.SUBHASH CHAND ## **RESPONDENTS** : 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION(N)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR(EDUCATION), OFFICE OF THE DEPUTY DIRECTOR(EDUCATION), PATHANAMTHITTA AT THIRUVALLA. 4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, MAVELIKARA. 5. THE MANAGER, - N.S.HIGH SCHOOL FOR GIRLS, MANNAR. - SR. GOVERNMENT PLEADER SMT.T.B.REMANY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **' PETITIONER S EXHIBIT** S: EXT.P1 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 1/3/1995 ISSUED BY RESPONDENT NO.5 AND APPROVED BY RESPONDENT NO.4. EXT.P2 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 2/8/1999 ISSUED BY RESPONDENT NO.5. EXT.P3 TRUE COPY OF THE ORDER BEARING NO.B4/8177/03/L.DIS. DATED 6/2/2004 ISSUED BY RESPONDENT NO.4. EXT.P4 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1 DATED 5/3/2004. EXT.P5 TRUE COPY OF THE ORDER DATED 18/3/2006 PASSED BY RESPONDENT NO.3. EXT.P6 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN RESPECT OF SRI.K.R.SANKARA PILLAI, PEON, N.S.HIGH SCHOOL FOR GIRLS, MANNAR. EXT.P7 TRUE COPY OF THE JUDGMENT DATED 6/6/2006 IN WP(C) NO.4487/2005. EXT.P8 TRUE COPY OF THE ORDER DATED 5/12/2006 PASSED BY RESPONDENT NO.1. EXT.P9 TRUE COPY OF THE PETITION DATED 5/1/2007 SUBMITTED BY THE PETITIONER THROUGH PROPER CHANNEL BEFORE RESPONDENT NO.4 FOR ONWARD TRANSMISSION TO RESPONDENT NO.1. EXT.P9(a) TRUE COPY OF THE COMMUNICATION DATED 30/3/2007 ISSUED BY RESPONDENT NO.4. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** **-------------------------------------------W.P.(C) NO. 15902 OF 2007 R -------------------------------------------Dated this the 14[th] July, 2008** ## **JUDGMENT** The petitioner is working as Peon in N.S. High School for Girls, Mannar, which is an aided school managed by the fifth respondent. The petitioner was appointed as part-time menial in the School on 1.12.1994 and he became a full-time menial with effect from 1.3.1995 onwards. The petitioner was appointed as full-time menial as per Ext.P1 appointment order dated 1.3.1995. When a regular vacancy of Peon arose in the School, the petitioner was promoted and appointed as Peon by the Manager. The promotion was approved by the District Educational Officer. 2. The petitioner claims that as per 1997 Pay Revision Order he is entitled to an advance increment as provided in paragraph 47 thereof. Paragraph 47 of G.O.(P)3000/98/Fin. Dated 25.11.1998 reads as follows: “47. Where promotion posts happen to have the scale of pay of feeder category posts, one advance increment will be granted to the incumbents appointed by promotion in posts carrying the scale of pay of feeder category posts. This advance increment will not be granted in the case of promotion from a time-bound higher grade to a regular promotion post in the same scale of pay.” W.P.(C) NO.15902 OF 2007 :: 2 :: 3. The District Educational Officer passed Ext.P3 order dated 6.2.2004, holding that the appointment of Peons in aided schools from the category of full time menials cannot be considered as promotion and, therefore, the petitioner is not entitled for an advance increment. On Revision by the petitioner, the Government also took the same view as per Ext.P8 order dated 5.12.2006. In Ext.P8, it was held that full-time menial is not a feeder category for promotion to the post of Peon. The relevant portion of Ext.P8 order reads as follows: :.. FTM is not a feeder category for promotion to the post of Peon. Though the posts of FTM and Peon have same scale of pay, the appointment is not by promotion but by transfer from a non-feeder category.” 4. Sri.S.Subhash Chand, learned counsel for the petitioner submits that Exts.P3 and P8 orders are clearly illegal in view of the specific provision in Chapter XXIVA Rule (1) of the Kerala Education Rules. Category 3 in Rule 1 of Chapter XXIVA of the Kerala Education Rules mentions about “sweepers and other staff”. Rule 1 reads as follows: “1. The number of persons that may be appointed in the Non-teaching establishment of aided schools may be as follows:- ## **Upper Primary Schools (complete) Basic and Non-Basic – one Peon. High Schools (complete)** 1. One Lower Division Clerk for schools with a strength below 1500 and two for schools with a strength of W.P.(C) NO.15902 OF 2007 :: 3 :: 1500 and above and excluding the strength in the Lower Primary Classes, if any. 2. Peons Two in general. 3. Sweepers and other staff – Two full time posts for Schools having a strength of 700 and above upto 1500, 3 posts for schools having a strength of 1500 and above. For strength below 700, only one full time post will be allowed. These persons are intended to be Sweepers, Scavengers, Watchers, Gardeners etc. In computing the strength of High Schools, the strength in Lower Primary classes, if any, shall be excluded. ## **High Schools (incomplete)** ---------------------------------------------------------------------------------Schools with Std. Schools with Std.IX as Schools with Std.IX VIII as the highest the highest with a stre- as the highest with ngth of 700 and above strength of 1500 but below 1500 and above. |----------------------------------------------------------------------------------| |---| |Peons<br>1 2 2| |Other members| |such as Sweepers, 1 Full-time 2 Full-time| |watchers etc. 1 Part-time 1 Part-time 1 Part-time| |---------------------------------------------------------------------------------| |As for High Schools| |Higher Secondary Schools One Lower Division Clerk| |Training School<br>One Attender| |One Part-time Sweeper| |---------------------------------------------------------------------------------| Provided that qualified non-teaching staff appointed against sanctioned posts prior to 1969-70 on a regular basis will be allowed to continue as such. They shall, if they are qualified, be appointed either by transfer or by promotion against permanent vacancies that may arise in the same school or the schools under the same Educational Agency and upon such appointments being made, the posts already held by them as excess shall be abolished. If there are no vacancies for such appointments they may be allowed to continue as such till such posts become vacant by death, retirement, resignation and the like and these posts shall be abolished as soon as they become so vacant. W.P.(C) NO.15902 OF 2007 :: 4 :: Note:- (1) In schools where diversified courses are introduced special staff may be sanctioned by the Director according to the nature of the course. (2) None of the members of non-teaching staff, if any, of the Lower Primary Schools shall be entitled to Government rates of pay. **Explanation:- (I)** The posts of Sweepers and other staff mentioned in this rule shall be a feeder category for appointment to the post of peon. **Explanation :- (II)** The post of Lower Division Clerk shall be filled up by promotion of attenders, peons, Sweepers and other staff, if they possess the qualification prescribed for the post of Lower Division Clerk in sub-rule (1) or rule 2. If there are more than one claimant for appointment as Clerk under these categories preference shall be given in the order of attenders, Peons, Sweepers and other staff. If there are more than one claimant under a particular category, the order of preference shall be according to the date of their first appointment. If the date of first appointment be the same, then preference shall be given with reference to age, the older being given first preference.” Explanation (I) to Note (2) of Rule 1 of Chapter XXIVA of the Kerala Education Rules provides that the posts of Sweepers and other staff mentioned in this rule shall be a feeder category for appointment to the post of Peon. There is no dispute that the petitioner was appointed as full time menial. It is also not in dispute that he was appointed as Peon as per Ext.P2 order. The question is whether the appointment of the petitioner as Peon was really a promotion for the purpose of paragraph 47 of 1997 Pay Revision Order. W.P.(C) NO.15902 OF 2007 :: 5 :: 5. Category No.3 of Rule 1 of Chapter XXIVA states that these persons (sweepers and other staff) are intended to be Sweepers, Scavengers, Watchers, Gardeners etc. The counsel submits that the expression “full time menial” is not defined in the Kerala Education Rules. In the Chambers Dictionary, for the word “menial”, the meaning is shown as follows: “adj. of or pertaining to a train of servants or work of a humiliating or servile nature; servile – n. a domestic servant; someone performing servile work; a person of servile disposition.” In Webster's New Dictionary & Thesaurus, “menial” is defined thus: “adj abject, attending, base, boring,degrading, demeaning, dull, fawning, groveling, helping, humble, humdrum, ignoble, ignominious, low, lowly, mean, obsequious, routine, servile, slavish, sorry, subservient, sycophantic, unskilled, vile. n. attendant, creature, dog's body, domestic, drudge, eta, flunky, laborer, lackey, peon, serf, servant, slave, underling.” The Law Lexicon by P.Ramanatha aiyar defines “menial” as follows: “Menial. As an adjective, belonging to the retinue of servants; belonging to the retinue or train of servants. As a noun, the word is said to mean a domestic servant; one of the train of servants; a company or retinue; the company or collected number of a household or family. (Richardson Dic). A barkeeper in a tavern is a “menial servant.” “In short, all the hirelings employed in service in and about the household affairs, or whose business it is to assist in the economy of the family; the stable boy, the coachman, and all that class of hirelings, fall within the reason of the law. W.P.(C) NO.15902 OF 2007 :: 6 :: In legal phrase, they are menial servants; and whether, in common parlance, they are called servants, or whether, as that term seems degrading, courtesy gives them a less offensive appellation, as gardener, house keeper nurse, coachman or barkeeper, they are menial servants; are servants within the meaning of the law.” (Ame. Cyc)” I am of the view that the expression “Sweepers, Scavengers, Watchers, Gardeners etc.” would mean that they are “menials”. It is common knowledge that such persons are appointed and treated as “Full Time Menial” or “Part Time Menial”, as the case may be, by the Managers of Schools, educational authorities and by common man. The posts of “Sweepers and other staff” would constitute a feeder category for the appointment to the post of peon, as is clear from Explanation (1) to Note 2 of Rule 1 of Chapter XXIV-A, K.E.R. Therefore, I hold that Full Time Menial is a feeder category for the appointment to the post of peon. This view is fortified by the Division Bench decision in **Rajendran** v. **State of Kerala** (1993 (1) KLT 893). It was held by the Division Bench that from Explanation II to Rule 1 of Chapter XXIVA of the Kerala Education Rules it is clear that Sweepers, Watchers, etc., whether full-time or part-time, are in the feeder category for filling up the post of Lower Division Clerk. 6. Therefore, the view taken by the Government in Ext.P8 order that full time menial is not a feeder category for promotion to the post of Peon is clearly unsustainable. W.P.(C) NO.15902 OF 2007 :: 7 :: The Writ Petition is allowed and Exts.P3 and P8 orders are quashed. Fresh orders shall be passed by the District Educational Officer expeditiously, in the light of the observations contained in this judgment. **(K.T.SANKARAN) Judge** ahz/