Secretary, Corporate Management of Schools under the Society of the Order of Sacred Transfiguration, Pathanapuram, Kollam - Petitioners; Shinu Mathai - Petitioner v State of Kerala and Others - Respondents

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944`** ## **`WP(C) NO. 6288 OF 2022`** ## **`PETITIONER/S:`** ``` 1SECRETARY,CORPORATE MANAGEMENT OF SCHOOLS UNDER THE SOCIETY OF THE ORDER OF SACRED TRANSFIGURATION PATHANAPURAM, KOLLAM-689 330. 2SHINU MATHAI, OFFICE ATTENDANT, PMSA UP SCHOOL, RAMANKUTH, MALAPPURAM-679 330. BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014. 3DEPUTY DIRECTOR OF EDUCATION, WAYANAD, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, WAYANAD-673 122. 4DISTRICT EDUCATIONAL OFFICER, WAYANAD, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, WAYANAD-673 122. SMT NISHA BOSE SR GP THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON04.07.2022,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 6288 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The 1st petitioner is a Corporate Management operating various Schools in the State. The Schools have been granted minority status by the National Commission for Minority Institutions which fact would be evident from Exhibit P1 order. The 2nd petitioner is working as Office Attendant in the PMSA U.P. School, Ramankuth, an aided school managed by the 1st petitioner. 2. The above-captioned writ petition is filed seeking issuance of directions to the 4th respondent to approve the appointment of the 2nd petitioner as Full-Time Menial (FTM) with effect from 31.07.2008 and for incidental reliefs. 3. Facts of the case as detailed in the petition can be summarised as under:- The 2nd petitioner was appointed as Full-Time Menial with effect from 08.08.2006 in the promotion vacancy of one V.S. Binu, as per Exhibit P2 order. Later, when a regular vacancy of FTM arose in the School consequent to the retirement of one K. Mathew, the 2nd petitioner was appointed as FTM in MTDM HS, Thondarnad, with effect from 31.07.2008. However, the proposal for approval was rejected by ``` WP(C) NO. 6288 OF 2022 ``` ``` 3 ``` the 4th respondent on the ground that the school is a newly opened school and the management was bound to appoint a protected hand. Though an appeal was preferred, the same was rejected by Exhibit P2(a) order. It is contended that by Exhibit P3 order, approval of the appointment of the 2nd petitioner was granted with effect from 01.06.2011 on the basis of Government Order dated 01.10.2011 by including him in the Teachers Package. The petitioners assert that the vacancy in which the 2nd petitioner was appointed is an established regular vacancy and that he was entitled to get the approval of his appointment with effect from 31.07.2008 itself. The petitioners point out that at the time of appointment of the 2nd petitioner, a request was made by the 1st petitioner requesting the educational authorities to depute a full-time menial for appointment under the management. However, the 3rd respondent by Exhibit P4 replied that no protected hand was available. It was in the said circumstances that the 1st petitioner was compelled to appoint a fresh hand. It is further stated that the 1st petitioner had given an undertaking that the management is ready to appoint a protected hand in the next arising vacancy. Subsequently, a protected FTM was allotted to the school by the 3rd respondent in the year 2007 and he joined the school with effect from ``` WP(C) NO. 6288 OF 2022 ``` ``` 4 ``` 09/08/2007. The petitioners contend that challenging the refusal to grant approval, the petitioner had moved a revision petition before the government on 30/03/2010 but the same has not been taken up or considered to date. It is in the aforesaid circumstances that the petitioners are before this Court seeking the following reliefs. (i) To issue a writ of mandamus directing the 4th respondent to approve the appointment of the 2nd petitioner as Full Time Menial w.e.f. 31.07.2008 on the basis of Exhibit P3 appointment order. (ii) To call for the records leading to Ext. P2 order of the 3rd respondent and set aside the same by issuing a writ of certiorari. (iii) To declare that petitioner’s appointment vide Ext. P3 is entitled to be approved on regular basis in the light of the judgments in **Moosa kutty v. Deo Wandoor** 2009(3) KLT 863 **Nadeera v. State of Kerala** 2011(3) KLT 790 and **State of Kerala v. Sneha Cherian** 2013(1) KLT 755 (SC) (iv) To issue a writ of mandamus directing the 4th respondent DEO to sanction and disburse the salary and allowances to the 2nd petitioner in the scale of FTM w.e.f. 31.07.2008 onwards by approving his appointment as FTM at MTDM HSS Thodarnad on the basis of Ext. P3 appointment order. (v) To declare that in the light of approval of appointment given to other FTM’s under the 1st petitioner in similar circumstances as evident from Exts. P7, P9 and P12, 2nd petitioner is fully entitled to get his appointment as FTM approved w.e.f. 31.07.2008. ``` WP(C) NO. 6288 OF 2022 ``` ``` 5 ``` 4. Sri. M.A.Fayaz, the learned counsel appearing for the petitioners submitted that from Ext.P4 it would be emphatically clear that on the date when the vacancy arose, there were no qualified protected hands available. The learned counsel would urge that the stand taken by the respondents cannot be sustained in view of the law laid down in **Moosakutty v. DEO Wandoor** [2009 (3) KLT 863] and **Nadeera v. State of Kerala** [2011 (3) KLT 790]. The learned counsel would also refer to Exhibit P10 judgment and it is argued that in similar circumstances this Court had issued directions to the DEO to approve the appointment of the petitioner therein. 5. The learned Government Pleader advanced submissions supporting the order passed by the respondents and it is contended that the impugned order does not warrant any interference. Insofar as the revision petition filed by the petitioner herein is concerned, it is submitted that the records could not be traced out and therefore, the concerned respondent was unable to pass final orders. 6. I have anxiously considered the submissions advanced and have perused the records. There cannot be any dispute as regards the fact that the 2nd petitioner was appointed in an established vacancy in the MTDM HS, Thodarnad, consequent to the retirement of Sri. K.Mathew ``` WP(C) NO. 6288 OF 2022 ``` ``` 6 ``` with effect from 31/7/2018. The sole reason for rejecting the appointment was that since the School comes under the definition of a ‘newly opened school’, one protected teacher had to be appointed. However, Ext.P4 letter issued by the 3rd respondent reveals that at the time of appointment of the 2nd petitioner as FTM there was no protected PTM available under the 3rd respondent. As held by this Court in **Nadeera** (supra), in case of unavailability of protected hands in certain posts, the Manager cannot be compelled to postpone the appointment even after the post is sanctioned by staff fixation as it would go against the scheme of the Act and the Rules. In other words, there is no enabling provision that allows the educational officer to postpone the approval as has been done in the instant case **.** 7. In the judgments relied on by the learned counsel appearing for the petitioners, this Court has held that the Manager is legally bound to conduct the affairs of the school in a proper manner and his primary concern is the welfare of the students by providing proper teaching and non-teaching staff. So if the Department fails to furnish protected hands for the smooth functioning of the school, the manager is entitled to appoint a fresh hand. It also appears from the records that the other full-time menials who were appointed in the school and who were denied ``` WP(C) NO. 6288 OF 2022 ``` ``` 7 ``` approval were later granted approval from their actual date of appointment and this fact is evident from Exhibits P7, P9, and P12 proceedings. 8. In view of the above discussion, I am of the view that the petitioners are entitled to succeed. Exhibit P2 will stand set aside. There will be a direction to the competent among the respondents to approve the appointment of the 2nd petitioner as FTM with effect from 31/07/2008 on the basis of Exhibit P3 appointment order and grant him all consequential benefits. The needful shall be done within a period of three months from the date of production of a copy of the judgment. This writ petition will stand disposed of. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` WP(C) NO. 6288 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 6288/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1PHOTOCOPY OF THE ORDER ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION 9F.NO.457 TO 466 OF 2012-60945) DATED 28.05.2012. ``` ``` Exhibit P2PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 1ST PETITIONER DATED 07.08.2006. ``` - `Exhibit P2 A PHOTOCOPY OF THE ORDER NO.B1 13805/08/K.DIS DATED 30.05.2009.` - `Exhibit P3 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 1ST PETITIONER DATED 31.07.2008 CONTAINING THE ENDORSEMENT OF THE APPROVAL BY THE 4TH RESPONDENT.` - `Exhibit P4 PHOTOCOPY OF LETTER NO.B1/9101/08/D.DIS DATED 05.09.2008 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P5 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED IN RESPECT OF SMT.SHINY MATHEW DATED 20.11.2004.` - `Exhibit P6 PHOTOCOPY OF LETTER NO.60554/N1/09/G.EDN DATED 07.12.2009 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P7 PHOTOCOPY OF THE PROCEEDINGS NO.A4/203/2010/K.DIS DATED 20.02.2010 ISSUED BY THE DEO WANDOOR.` - `Exhibit P8 PHOTOCOPY OF THE JUDGMENT IN WPC NO.4965/2011 DATED 17.02.2021.` - `Exhibit P9 PHOTOCOPY OF ORDER NO.AR/1069/21 DATED 29.10.2021 ISSUED BY THE DEO WANDOOR.` - `Exhibit P10 PHOTOCOPY OF THE JUDGMENT IN WPC NO.13687/2021 DATED 29.09.2021.` ``` WP(C) NO. 6288 OF 2022 ``` ``` 9 ``` ``` Exhibit P11PHOTOCOPY OF THE INTERIM ORDER IN WPC NO.27854/2021 DATED 06.12.2021. ``` ``` Exhibit P12PHOTOCOPY OF ORDER NO.A4/33253/2022 DATED 07.02.2022 ISSUED BY THE DEO, WANDOOR. ```