Rajeev K.R v State of Kerala & Ors

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944`** ## **`WP(C) NO. 427 OF 2023`** ## **`PETITIONER:`** ``` RAJEEV K.R AGED 42 YEARS S/O.K.R.KRISHNAN NAIR, U.P.S.T, ITHITHANAM HIGHER SECONDARY SCHOOL, MALAKUNNAM, MALAKUNNAM P.O. CHANGANACHERRY, KOTTAYAM, RESIDING AT RAJI BHAVAN, ITHITHANAM P.O. CHANGANACHERRY, KOTTAYAM-686535 BY ADVS. KALEESWARAM RAJ SHILPA SOMAN THULASI K. RAJ ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2SECRETARY TO GOVERNMENT DEPARTMENT OF SOCIAL JUSTICE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001 ``` W.P.(C) 427 of 2023 2 ``` 4DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695004. 5DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALACE RD, KOTTAYAM, KERALA, PIN - 686001 6DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, AZAD LINE, NEAR FIRE STATION, VYASKARA, THIRUNAKARA, KOTTAYAM, KERALA, PIN - 686001 7ASSISTANT EDUCATION OFFICER CHANGANACHERRY, KOTTAYAM-686101 8MANAGER ITHITHANAM HIGHER SECONDARY SCHOOL, MALAKUNNAM, MALAKUNNAM P.O. CHANGANACHERRY, KOTTAYAM-686535 9AMBILY K.NAIR HST (MATHEMATICS), ITHITHANAM HIGHER SECONDARY SCHOOL, MALAKUNNAM, MALAKUNNAM P.O. CHANGANACHERRY, KOTTAYAM, PIN - 686535 ``` ``` SMT NISHA BOSE, SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) 427 of 2023 3 ## **JUDGMENT** The petitioner states that he is presently working as UPST in the Ithithanam Higher Secondary School, governed by the provisions of the Kerala Education Act and the Rules framed thereunder and managed by the 8th respondent. He claims that he is a differently abled person with disability assessed at 45% disability, as is evident from Ext P1. 2. The petitioner states that he had submitted Ext.P4 representation before the 8th respondent requesting to extend the benefit of reservation for promotion to which a person with disability was entitled to in terms of the provisions of the Rights of Persons with Disability Act, 2016. However, ignoring the claim of the petitioner, when a vacancy to the post of HST (Mathematics) arose in the school on 01.06.2021, the 9th respondent was appointed by the 8th respondent. The petitioner asserts that the Government has come up with Ext.P5 Government Order, and in view of the same, the first vacancy which arose thereafter had to be filled up by appointing the petitioner. Highlighting the claim of the petitioner, Ext.P6 representation was submitted before the 2nd respondent wherein the entitlement of the petitioner to lay claim to the post in W.P.(C) 427 of 2023 4 view of the judgment rendered by the Apex Court in **State of Kerala v. Leesamma Joseph** [2021 (4) KLT 192] and this Court in **K.J Varghese v. State of Kerala & Ors** [Neutral Citation Number:2022/KER/43342] were raised. The petitioner states that he has not been promoted to the post of HST (Mathematics) to date. It is contended that a new retirement vacancy is likely to arise on 31.05.2023 upon the retirement of a certain B. Prameela Devi, and the petitioner is entitled to be promoted in the said vacancy by virtue of Exts P5 and P8. The grievance of the petitioner concerns the non-consideration of Ext.P6. It is in the afore circumstances that this writ petition is filed seeking the following reliefs: i) To declare that the petitioner alone is entitled to be promoted to the post of H.S.T (Mathematics) in the retirement vacancy of Smt.Shailaja Kumari w.e.f. 1.06.2021 or at least w.e.f 15.07.2021 and also that the 9th respondent is not entitled to be promoted as H.S.T (Mathematics) ahead of the petitioner. ii) To declare that the 9th respondent is not entitled to get her promotion to the post of H.S.T (Mathematics) approved w.e.f 15.07.2021 and that her appointment as H.S.T (Mathematics) itself is illegal. iii) To declare that the petitioner is entitled to be promoted to the post of H.S.T (Mathematics) in the new retirement vacancy that shall arise on 31.05.2023 or the near future, whichever is earlier, in the light of Ext.P8. iv) To issue a writ of mandamus directing the 5th respondent to pass orders promoting the petitioner as H.S.T (Mathematics) w.e.f W.P.(C) 427 of 2023 5 1.06.2021 or at least w.e.f 15.07.2021 in the retirement vacancy of Smt.Shailaja Kumari. v) To issue a writ of mandamus directing the 8th respondent to refrain from approving the promotion of the 9th respondent as H.S.T (Mathematics) in the retirement vacancy of Smt.Shailaja Kumari. vi) To issue a writ of mandamus directing the 2nd respondent to consider and pass orders on Ext.P6 representation, after hearing the petitioner within a time frame to be fixed by this Hon’ble Court. vii) To issue a writ of mandamus directing the 5th respondent to promote the petitioner as H.S.T (Mathematics) in the new vacancy that shall arise on 31.05.2023 or the near future, whichever is earlier, in the light of Ext.P8. 3. The learned Government Pleader submitted that the petitioner had earlier approached this Court by filing W.P.(C) No.15246 of 2021 and Ext.P7 would reveal that the said writ petition was dismissed as withdrawn. It is submitted that in view of the above, this writ petition may not be entertained. 4. In response, it is submitted by Smt. Thulasi K Raj, the learned counsel appearing for the petitioner, that the petitioner realized a vacancy is likely to arise on 31.05.2023, and therefore, nothing prevents the petitioner from stating her claim. It is submitted by the learned counsel that the limited request at this stage is for expeditious consideration of Ext.P6 representation in the light of the law laid down in **Leesamma** (supra), **Siddaraju v. State of Karnataka** (2020 SCC Online SC 45) and **K.J Varghese** (supra). It is submitted by the learned counsel that directions be issued to the 2nd W.P.(C) 427 of 2023 6 respondent to consider and take a decision on Ext.P6 representation and prays that until a decision is taken on the representation, the official respondents be interdicted from approving the appointment of the 9th respondent. 5. Heard the learned Government Pleader. In view of the order that I propose to pass, no prejudice would be caused if notice to respondents 8 and 9 is dispensed with. 6. As the limited request of the petitioner is for expeditious consideration of Ext.P6, I am of the view that necessary directions can be issued. Resultantly, this writ petition is disposed of by issuing the following directions: a) There will be a direction to the 2nd respondent to take up Ext.P6 and pass orders on its merits after affording an opportunity of being heard, either physically or virtually, to the petitioner herein or his authorized representative and respondents 8 and 9 expeditiously, in any event, within two months from the date of receipt of a copy of this judgment. Until orders are passed on Ext.P6, the grant of approval to the appointment of the 9th respondent shall be deferred by the W.P.(C) 427 of 2023 7 concerned respondent. - b) It would be open to the petitioner to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. This writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C) 427 of 2023 8 ## **`APPENDIX OF WP(C) 427/2023`** ``` PETITIONER'S EXHIBITS: ``` ``` Exhibit P1TRUE COPY OF THE DISABILITY CERTIFICATE DATED 20.06.2012 PERTAINING TO THE PETITIONER Exhibit P2TRUE COPY OF THE M.SC DEGREE CERTIFICATE IN MATHEMATICS AWARDED BY M.G. UNIVERSITY TO THE PETITIONER DATED 22.01.2005 ``` ``` Exhibit P3TRUE COPY OF THE B.ED DEGREE CERTIFICATE IN MATHEMATICS AWARDED BY THE M.G. UNIVERSITY TO THE PETITIONER DATED 05.06.2003 ``` ``` Exhibit P4TRUE COPY OF THE REPRESENTATION DATED 10.07.2021 SUBMITTED BY THE PETITIONER BEFORE THE 8TH RESPONDENT, WITH COPY TO THE 6TH RESPONDENT. ``` ``` Exhibit P5TRUE COPY OF G.O(P)NO.18/2018/SJD DATED 18.11.2018. ``` ``` Exhibit P6TRUE COPY OF THE REPRESENTATION DATED 26.07.2021 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT Exhibit P7TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 15246/21 PASSED BY THIS HON'BLE COURT DATED 04.04.2022 Exhibit P8TRUE COPY OF THE G.O.(K) NO.111/2022/GEDN DATED 25.06.2022 ``` ``` RESPONDENTS' EXHIBITS: NIL ```