Rajanimol K. S. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **WP(C).No.5813 OF 2021(B)** ## **PETITIONER:** **RAJANIMOL K. S., AGED 38 YEARS W/O. SIJU P. M., HINDI TEACHER, S.N.G.U.P.S., KAKKATHURUTHY, (RESIDING AT POTTANANIYIL HOUSE, PANANGAD P. O., MATHILMULA, MATHILAKAM, PIN - 680 685.** **BY ADVS. SRI.T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SHRI.T.R.VISHNU** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695014. 3 THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE AEO, IRINJALAKKUDA, THRISSUR - 680 121. 4 THE MANAGER, SNGS UPS, KAKKATHURUTHY, EDATHIRINJI - 680 122. SRI.P.M.MANOJ-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 5813/21 2 ## **JUDGMENT** The petitioner says that she was appointed in a substantive vacancy of Junior Language Teacher (Hindi), by the Manager of 'S.N.G.U.P.S', Kakkathuruthy; but that when Ext.P5 appointment order was issued, it was shown to be on daily wages. She says that she does not know why her appointment has been granted by the Manager on daily wages, except that perhaps she was guided by the earlier Government Order, namely GO(P)No. 104/2004/G.Edn, dated 10.06.2008, which mandated that appointments made during the midst of an academic year can be offered only on daily wage basis. 2. The petitioner says that this position has been drastically altered after the judgment of the Honourable Supreme Court in **Sneha Cherian v. State of Kerala** [2013(1)KLT 755] and therefore, that the Manager ought to WPC 5813/21 3 have appointed her on a Scale-of-pay basis. 3. The petitioner, thereafter, submits that, in fact, when Ext.P5 was presented before the competent Educational Authority for approval, it was rejected through Ext.P6, saying that her appointment was irregular because she has been appointed only on daily wages though the post in question was a substantive one. She points out that Ext.P6 also carries an additional reason that the proposal for approval of her appointment is belated by about 5 days which is only a curable defect. 4. The petitioner, therefore, prays that Exts.P5 and P6 be set aside and the Manager be directed to issue a fresh order, appointing her on scale-of-pay basis, within a time frame to be fixed by this Court; and consequently direct the competent educational Authority to consider and approve the same as per law. WPC 5813/21 4 5. The afore submissions, made on behalf of the petitioner by her learned counsel – Sri.T.T.Muhamood, was answered by the learned counsel appearing for the 4th respondent – Manager, asserting that Ext.P5 had been issued appointing the petitioner on daily wages basis, since it was made with effect from 01.10.2019, being much after the academic year had commenced in June of the said year. The learned counsel submitted that, therefore, the Manager had no other option but to show the petitioner’s appointment to be on daily wage basis and prayed that this writ petition be dismissed. 6. The learned Senior Government Pleader – Sri.P.M.Manoj, submitted that Ext.P6 order has been issued by the Assistant Educational Officer (AEO), Irinjalakkuda, finding that petitioner’s appointment on daily wage basis was irregular, since it is a WPC 5813/21 5 regular post. He submitted that since the Manager had submitted the proposal with delay, this was also a reason stated in Ext.P6 to reject the approval of the petitioner. He, therefore, prayed that this writ petition be dismissed. 7. When I consider the afore rival contentions, it is clear that impression of the Manager that petitioner could have been appointed only on daily wage basis since she was offered appointment with effect from 01.10.2019, does not appear to be, _prima_ _facie,_ now tenable in view of the judgment of the Hon’ble Supreme Court in **Sneha Cherian (supra),** as also **Nair Service Society v. State of Kerala and Others** [2013 KHC 723]. 8. Since the Manager has acted without adverting to the above judgments, I am certain that Ext.P5, to the extent to which the petitioner has been offered appointment only WPC 5813/21 6 on daily wage basis, cannot find favour in law. This is more so because, even the AEO has rejected the said proposal, through Ext.P6 order, saying that since the post is substantive, appointment of the petitioner could not have been made on daily wage basis. In the afore circumstances, I allow this writ petition and set aside Ext.P5 appointment Order, to the extent to which it grants the petitioner’s appointment only on daily wage basis; with a consequential direction to the Manager of the School to issue an appropriate order, adverting to **Sneha Cherian** (supra) and ## **Nair Service Society** (supra). The afore exercise shall be completed by the Manager, as expeditiously as is possible, but not later than two weeks from the date of receipt of a copy of this judgment; and the proposal for approval of the petitioner on such basis shall be forwarded to the WPC 5813/21 7 jurisdictional AEO within a period of two weeks thereafter. On the AEO receiving the proposal for approval of appointment of the petitioner as afore, he shall consider the same after affording the Manager and the petitioner an opportunity of being heard – either physically or through video conferencing – particularly with respect to the other defects noted in Ext.P6, which shall be answered by the Manager and the petitioner, as they are advised; and thereafter, said Authority will issue appropriate orders on the proposal as per law without any avoidable delay but within two months after it reaches him. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 5813/21 8 ## APPENDIX ## PETITIONER'S/S EXHIBITS: |EXHIBIT P1|TRUE COPY OF DEGREE CERTIFICATE OF| |---|---| ||RASHTRABHASHA VISARADH AWARDED TO| ||THE PETITIONER FROM THE DEKSHINA| ||BHARAT HINDI PRACHAR SABHA, MADRAS| ||ON 19.02.2019.| |EXHIBIT P2|TRUE COPY OF DEGREE CERTIFICATE OF| ||RASHTRABHASHA PRAVEEN AWARDED TO THE| ||PETITIONER FROM THE DAKSHINA BHARAT| ||HINDI PRACHAR SABHA, MADRAS ON| ||23.03.2019.| |EXHIBIT P3|TRUE COPY OF DIPLOMA IN LANGUAGE| ||EDUCATION CERTIFICATE DATED| ||12.11.2019 ISSUED TO THE PETITIONER.| |EXHIBIT P4|TRUE COPY OF K.TET CERTIFICATE DATED| ||19.10.2020 ISSUED TO THE PETITIONER| ||BY THE BOARD OF EXAMINATIONS| ||(K.TET), DEPARTMENT OF GENERAL| ||EDUCATION, GOVERNMENT OF KERALA.| |EXHIBIT P5|TRUE COPY OF APPOINTMENT ORDER| ||01.10.2019 ISSUED BY THE 4TH| ||RESPONDENT, APPOINTING THE| ||PETITIONER AS HINDI TEACHER IN| ||S.N.G.U.P.S. KAKKATHURUTHI AGAINST| ||THE RETIREMENT VACANCY OF SMT. V. R.| ||SASIKALA.| |EXHIBIT P6|TRUE COPY OF ORDER NO.C/16790/2019| ||DATED 31.12.2019 ISSUED BY THE 3RD| ||RESPONDENT (WITH TYPED COPY).| |EXHIBIT P7|TRUE COPY OF GOVERNMENT LR.NO.G.EDN-| ||J3/182/2017 DATED 05.03.2018.|