Rajeena Samuel v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ``` WP(C) NO. 12445 OF 2023 ``` ## **`PETITIONER:`** ``` RAJEENA SAMUEL AGED 40 YEARS, W/O. JAIN K. KUNJAPPY, KUZHIKKALAYIL HOUSE, V.KOTTAYAM PO, PATHANAMTHITTA-. (OFFICE ATTENDANT, CMS HIGH SCHOOL, THALAVADY), PIN - 686637 BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - ., PIN - 695001` - `2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY DIRECTOR OF PUBLIC INSTRUCTION), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,JAGATHY, THIRUVANANTHAPURAM, PIN - 695014` - `3 THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), ALAPUZHA -, PIN - 688001` - `4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KUTTANAD - 688506` - `5 THE CORPORATE MANAGER THE CORPORATE EDUCATIONAL AGENCY, CMS SCHOOLS, CSI DIOCESAN OFFICE, CATHEDRAL ROAD, KOTTAYAM-, PIN - 686001 BY ADV SMT.NISHA BOSE, SR.GOVERNMENT PLEADER` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.12445/2023 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.12445 of 2023** **---------------------------------------------Dated this the 05[th] day of April, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ in the nature of certiorari or any other appropriate writ, order quashing Ext.P4 order for the blatant violation of the law laid down by this Hon'ble Court in Exts.P5, P6, P7, P8, P9, P10 and P11 judgments passed by this Hon'ble Court. - ii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent No.4 to approve the appointment of the petitioner as Office Attendant in CMS High School, Thalavady with effect from 01.12.2022 onwards as per Ext.P3 promotion under Rule 43 of Chapter XIV A KER in the light of the law laid down in the rulings reported as Exts. P5, P6, P7, P8, P9, P10 and P11 forthwith along with the salary and allowances or within such time as this Hon'be Court may deem fit and proper in the interest of justice. - iii. To issue a declaration that the petitioner is entitled to be promoted and appointed as Office WP(C).No.12445/2023 **3** Attendant in CMS High School, Thalavady with effect from 01.12.2022 itself as Ext.P3 order under Rule 43 of Chapter XIV A KER and the same is liable to be approved in preference to a protected hand/daily wage hand in an uneconomic school in the light of the rulings reported as Exts. P5, P6, P7, P8, P9, P10 and P11 along with salary and allowances forthwith and denial of the same by respondent No.4 by Ext.P4 order is absolutely arbitrary and untenable in law rendering the same liable to be struck down as unconstitutional being violative of Articles 14 and 21 of the Constitution of India. iv. Dispense with the production of English translation of documents in vernacular language. v. To mould and grant such other reliefs as this Hon'ble Court may deem fit and proper in the interest of justice. (SIC) 2. Petitioner was promoted and appointed as Office Attendant in CMS High School, Thalavady, with effect from 01.12.2022 onwards, in a regular promotion vacancy. Ext.P3 is the order passed by the 5[th] respondent. But the 4[th] respondent rejected Ext.P3 appointment by promotion of the petitioner under Rule 43 of Chapter XIV A KER as per Ext.P4 WP(C).No.12445/2023 **4** order on the ground that the school in question, viz., CMS High School, Thalavady, was an uneconomic school and therefore, a protected hand/daily hand ought to have been appointed. It is submitted that the issue in question has been specifically covered by Exts.P5 and P6 judgments of this Court. The petitioner contended that Government Orders/Executive Orders could not either cripple or cabin statutory provisions contained in Rule 51A and Rule 43 of Chapter XIV A KER. Hence this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. This Court, as per judgment dated 04.04.2023 in W.P.(C). Nos.10753 and 11984 of 2023, disposed similar grievance raised by the staff of the same school. There also, the approval was denied because it is an uneconomic school. Those writ petitions were disposed setting aside the impugned orders and directing to reconsider the matter in the light of the decisions delivered by this Court on similar issue. It will be better to extract the relevant portion of the judgment dated 04.04.2023 in W.P.(C). Nos.10753 and 11984 of 2023: WP(C).No.12445/2023 **5** “4. Ext.P5 is the impugned order in both the writ petitions. The main reason mentioned in Ext.P5 to reject the approval is that the school of the petitioner is an uneconomic school. This point is considered by a Division Bench of this Court in Ext.P9 judgment produced in these writ petitions. It will be better to extract the relevant portion of Ext.P9 judgment here: “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.” 5. In the light of the above dictum and also in the light of Exts.P6 to P8 judgments and the other judgments produced in the writ petitions, I am of the considered opinion that the finding in Ext.P5 in these writ petitions will not stand. Therefore, the impugned orders are to be set aside. Hence, these writ petitions are disposed of in the following manner: 1. Ext.P5 in W.P.(C). Nos.10753 and 11984 of 2023 are quashed. 2. The 3[rd] respondent in W.P.(C). No.10753 of 2023 is directed to reconsider the matter in the light of WP(C).No.12445/2023 **6** the principle laid down by this Court in Ext.P9 and other judgments produced along with these writ petitions, as expeditiously as possible, at any rate within one month from the date of receipt of a stamped certified copy of this judgment. Consequential benefits shall also be disbursed to the petitioner, within a period of two months from the date on which the above order is passed. 3. The 3[rd] respondent in W.P.(C). No.11984 of 2023 is directed to reconsider the matter based on the decision taken by the 3[rd] respondent in the case of the petitioner in W.P.(C). No.10753 of 2023 as directed above, as expeditiously as possible at any rate, within one month from the date on which the decision as directed in W.P.(C). No.10753 of 2023 is taken. Based on the order, the consequential benefits also shall be disbursed to the petitioner within two months from the date on which the above decision is taken.” I think a similar order can be passed in this case also. Hence, this writ petition is disposed of in the following manner: 1. Ext.P4 is quashed. 2. The 3[rd] respondent is directed to reconsider the matter in the light of the discussion in the judgment dated 04.04.2023 in W.P.(C). WP(C).No.12445/2023 **7** Nos.10753 and 11984 of 2023, as expeditiously as possible, at any rate within one month from the date of receipt of a stamped certified copy of this judgment. Consequential benefits shall also be disbursed to the petitioner, within a period of two months from the date on which the above order is passed. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.12445/2023 **8** ## **`APPENDIX OF WP(C) 12445/2023`** ## `PETITIONER EXHIBITS` |`Exhibit P1`|`TRUE COPY OF APPOINTMENT ORDER DATED`| |---|---| ||`01.07.2019 ISSUED BY RESPONDENT NO. 5.`| |`Exhibit P2`|`TRUE COPY OF ORDER APPROVAL ORDER`| ||`BEARING NO.B6/13377/2019 DATED`| ||`18.12.2019 ISSUED BY THE DISTRICT`| ||`EDUCATIONAL OFFICER, THIRUVALLA`| |`Exhibit P3`|`TRUE COPY OF ORDER DATED 01.12.2022,`| ||`ISSUED BY RESPONDENT NO.5.`| |`Exhibit P4`|`TRUE COPY OF ORDER BEARING`| ||`NO.B3/43377/2022 DATED 17.02.2023 THUS`| ||`PASSED BY RESPONDENT NO.4.`| |`Exhibit P5`|`TRUE COPY OF RULING OF THIS HON'BLE`| ||`COURT THUS REPORTED AS CIJI P. JOSE V.`| ||`STATE OF KERALA (2012 (1) KLT 867).`| |`Exhibit P6`|`TRUE COPY OF RULING OF THIS HON'BLE`| ||`COURT IN STATE OF KERALA V. CIJI P.`| ||`JOSE (2015 (1) KHC 232).`| |`Exhibit P7`|`TRUE COPY OF RULING OF THIS HON'BLE`| ||`COURT THUS REPORTED AS BIPIN PAVITHRAN`| ||`V. AND ANOTHER V. STATE OF KERALA AND`| ||`OTHERS (2021 (2) KHC 515)`| |`Exhibit P8`|`TRUE COPY OF JUDGMENT OF THIS HON'BLE`| ||`COURT DATED 10.11.2021 IN WA`| ||`NO.1358/2021 AND CONNECTED APPEALS`| |`Exhibit P9`|`TRUE COPY OF JUDGMENT DATED 01.12.2021`| ||`IN W.P.(C).NO.16158/2021 OF THIS`| ||`HON'BLE COURT`| |`Exhibit P10`|`TRUE COPY OF JUDGMENT DATED 02.06.2022`| ||`IN W.P.(C).NO. 5716/2022 OF THIS`| ||`HON'BLE COURT`| |`Exhibit P11`|`TRUE COPY OF RULING IN MANAGER, P.K.`| ||`HIGH SCHOOL AND OTHERS V. STATE OF`| ||`KERALA AND OTHERS (2011 (4) KHC 179)`| ||`OF THIS HON'BLE COURT`|