Raihanath K.K. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **WP(C).No.4296 OF 2012(J)** ## **PETITIONER:** **RAIHANATH K.K. AGED 33 YEARS** **WIFE OF SHERIEF, UPPER PRIMARY SCHOOL ASSISTANT, THIRUVALAYANNUR HIGH SCHOOL, THRISSUR DISTRICT, (RESIDING AT THEKKEKOMBATH, KALLUR-VADAKKEKKAD679562).** **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT-680003.** - **4 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT-680506.** - **5 THE MANAGER THIRUVALAYANNUR HIGH SCHOOL, KALLUR- VADAKKEKKAD-679 562, THRISSUR DISTRICT.** **R1 BY GOVERNMENT PLEADER** ## **GP. SHRI. RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.4296 OF 2012(J) 2 ## JUDGMENT ## This writ petition is filed seeking the following prayer:- “call for the records relating to Exhibits P-3, P-3(a) and P-8 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ order or direction”. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The learned counsel for the petitioner submits that the petitioner had been appointed as UPSA on 05.06.2006 in a death vacancy. The petitioner had been paid salary pursuant to the approval of appointment. The staff fixation orders for relevant years also shows the existence to the post to accommodate the petitioner, according to the learned counsel. However, by Ext.P3 order dated 05.03.2010, the Deputy Director of Education has issued an order revising the staff fixation for the years 2006-2007 and 2007-2008 and directing the retention of one Smt.T.K. Mini as UPSA in the death vacancy to which the petitioner had been appointed and canceling the staff fixation to the extent of additional post had been WP(C).No.4296 OF 2012(J) 3 sanctioned applying the ratio of 1:40 to accommodate Smt. T.K.Mini. It was found that the salary of the petitioner for the period from 05.06.2006 to 01.06.2008 is liable to be recovered and that the petitioner can be accommodated against the retirement vacancy of Smt.Vilasini UPSA, which arose on 31.03.2008. 4. The petitioner submitted that Ext.P4 revision petition before the Government, which has been dismissed by Ext.P8 order. It is stated in Ext.P8 order of the Government that since the appointment orders issued in favour of the petitioner by Manager on 05.06.2006 were illegal, the only remedy of the petitioner is to seek damages from the Manager. 5. The learned counsel for the petitioner submits that the Deputy Director of Education has no power to issue an order in the nature of Ext.P3 and that the power, if any, is vested in the DPI in terms of Rule 12E (3) of Chapter XXIII of KER. It is submitted that the Government ought to have found that the orders passed by the Deputy Director of Education were without jurisdiction. It is submitted that a decision of this WP(C).No.4296 OF 2012(J) 4 Court in Usuvathunnisa v. Assistant Educational Officer (1990 (2) KLT 530), which has been relied on in several subsequent decisions of this Court, is authority on the point that there is no power vested in any of the educational agencies except the DPI to pass an order in the nature of Ext.P3 and that too only after putting the petitioner on notice specifically and after considering the objection raised with regard to the same. 6. A counter affidavit has been placed on record by the 4[th] respondent. An additional counter affidavit has also been filed on 28.02.2015. It is sought to be contended that the staff fixation order for the years 2006-2007 and 2007-2008 were erroneous in as much as Smt.T.K.Mini had been retained on giving the protection as per 1:40 ratio. The said teacher ought to have been adjusted against the death vacancy, which arose on 20.02.2006 and that there would have been no post to accommodate the petitioner till the retirement vacancy arose in 2008. It is stated that the action of the Manager who appointed a fresh hand while teacher was being retained by extending 1:40 ratio was completely illegal. It is stated that it is the WP(C).No.4296 OF 2012(J) 5 Manager, who should be aggrieved by Ext.P8 order since the petitioner has been permitted to seek damages from the Manager. 7. The learned Government Pleader submits that the petitioner had claimed salary for the period 2006-2007, 20072008 and 2008-2009 and there was no post to accommodate her till 14.07.2009. An additional counter affidavit has also been filed. It is submitted in the additional counter affidavit that one additional post had been sanctioned for the year 20062007 in compliance with the judgment of this Court in W.P(C) No.20037/2009 and that the staff fixation order has been further revised on 23.11.2010. It is stated that the petitioner can be accommodate against the additional post of UPSA so sanctioned. It is stated that there is no necessity for throwing the petitioner out of service in respect of 2006-07 and 2007-08 and that the petitioner has a clear vacancy to accommodate her from 05.07.2006 to 14.07.2009. 8. I have considered the contentions advanced. The challenge raised in the writ petition as against Ext.P3 WP(C).No.4296 OF 2012(J) 6 proceedings issued by the Deputy Director of Education. The decision of this Court in Usuvathunnisa v. AEO (supra) is authority on the point that the DPI is the officer authorised in terms of Rule 12E (3) of Chapter XXIII of KER to pass an order reviewing the staff fixation orders in respect of prior periods. It is admitted by the learned Government Pleader in the additional counter affidavit and there was an additional post of UPSA sanctioned in respect of the academic year 2006-2007 to accommodate the petitioner as well. In the above view of the matter, I am of the opinion that Ext.P3 proceedings by which the staff fixation was found erroneous and the petitioner's appointment was held objectionable cannot survive in view of the further review of the staff fixation for the year 2006-2007, which has been implemented by Ext.R1(a) order dated 23.11.2010. Further Ext.P3 is bad for want of jurisdiction as also the fact that the approval of the appointment already granted by Ext.P1 had not been canceled in any manner known to law. In the above view of the matter, Exts.P3 and P8 orders are set aside. The WP(C).No.4296 OF 2012(J) 7 petitioner will be entitled for the benefit of a approval accorded to her appointment with effect from 05.06.2006. This writ petition is ordered accordingly. Sd/- ANU SIVARAMAN JUDGE Bng/30.11.19 WP(C).No.4296 OF 2012(J) 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DATED 05.06.2006 AND APPROVAL THEREOF.** **EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER 2005-06 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER DATED 05.08.2005.** - **EXHIBIT P2 A TRUE COPY OF THE STAFF FIXATION ORDER 2006-07 OF THE 4TH RESPONDENT DATED 28.12.2006.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.B4/19696/09 OF THE 3RD RESPONDENT DATED 05.03.2010.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER NO.B4/19696/09 OF THE 3RD RESPONDENT DATED 05.03.2010.** - **EXHIBIT P4 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 20.03.2010.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)NO.14844 OF 2010-E.** - **EXHIBIT P6 TRUE COPY OF THE NOTICE NO.21982/B2/2010/G.EDN. DATED 14.10.2010.** - **EXHIBIT P7 TRUE COPY OF THE LETTER NO.B5-10336/2011 OF THE 4TH RESPONDENT DATED 27.10.2011.** **EXHIBIT P7 A TRUE COPY OF THE AUDIT OBJECTION OF THE 3RD RESPONDENT DATED NIL. EXHIBIT P8 TRUE COPY OF THE GO(RT)NO.662/11/G.EDN. DATED 18.02.2011 OF THE GOVERNMENT.** ## **RESPONDENTS EXHIBITS:** **EXHIBIT R4 A A TRUE COPY OF THE STAFF FIXATION ORDER NO.B5-9511/10/D.DIS DATED 23.11.2010.**