Shakkena E.A. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ## **`WP(C) NO. 25477 OF 2020`** ## **`PETITIONER:`** ``` SHAKKENA E.A. AGED 48 YEARS, D/O.ALI.E.S, LPSA (ARABIC), SREEVILAS UP SCHOOL, THRIPRAYAR, VALAPPAD, THRISSUR - 680567, (RESIDING AT MATHILAKATH VEETTIL, THALIKULAM P.O, THRISSUR - 680569. BY ADVS.T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SHRI.T.R.VISHNU ``` ## **`RESPONDENTS:`** |`1`|`THE STATE OF KERALA`| |---|---| ||`REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL`| ||`EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,`| ||`THIRUVANANTHAPURAM - 695001.`| |`2`|`THE DIRECTOR OF GENERAL EDUCATION`| ||`DIRECTORATE OF GENERAL EDUCATION, POOJAPURA,`| ||`THIRUVANANTHAPURAM - 695001.`| |`3`|`THE DISTRICT EDUCATIONAL OFFICER,`| ||`OFFICE OF THE DEO, CHAVAKKAD, THRISSUR - 680506.`| |`4`|`THE ASSISTANT EDUCATIONAL OFFICER,`| ||`OFFICE OF THE AEO, VALAPPAD, THRISSUR - 680567.`| |`5`|`THE MANAGER,`| ||`SREEVILAS U.P SCHOOL, THRIPRAYAR, VALAPPAD,`| ||`THRISSUR DISTRICT - 680567.`| ||`BY ADVS.SMT. SURYA BINOY SR.GP`| ||`ADVOCATE GENERAL OFFICE KERALA`| ||`SRI.V.N.HARIDAS`| ||`SMT.SIBY.P.JOSE`| ||`SRI.K.T.BOSCO`| ||`SHRI.SAIFUDEEN T.S`| ||`SMT.SMITHA GOPINATH`| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.25477/2020 **2** ## **P.V.KUNHIKRISHNAN, J. --------------------------------** **W.P.(C).No.25477 of 2020** ## **---------------------------------------------Dated this the 14[th ] day of March, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext:P4 order issued by the 1[st] respondent. - ii. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext:P2 order issued by the 5[th] respondent. - iii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as Language Teacher (Arabic) on scale of pay basis w.e.f 01.06.2016 and grant all the service benefits. - iv. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext:P5 Circular. - v. Such other writ, order or direction which this Hon'ble Court may fit and proper to grant in the circumstances of the case. ## (SIC) 2. Petitioner was appointed as part time Language Teacher (Arabic) in SVUP School, Thriprayar with effect from WP(C).No.25477/2020 **3** 01.06.2016. According to the petitioner, as per Government letter No.49275/J2/14/G.Edn dated 29.08.2014 (Ext.P11) it is clarified that the language teacher post can be sanctioned if there are required strength of students to learn that language as per KER, even though the school is uneconomic. It is the case of the petitioner that if the aggregate number of students is 28 to study Arabic language, a post of language teacher (Arabic) can be sanctioned in LP section. It is submitted that in the instant case there were 29 students in classes 1 to 4 to study Arabic language and hence sanctioning the post of language teacher (Arabic) and posting of the petitioner against the said post is perfectly in order. Therefore the denial of approval to the petitioner on scale of pay basis with effect from 01.06.2016 is absolutely illegal is the submission. The appeal and revision submitted by the petitioner are also dismissed as evident by Exts.P3 and P4. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The counsel for the petitioner takes me through Rule 2A of Chapter XXIII KER. The counsel submitted that in WP(C).No.25477/2020 **4** the light of Rule 2A of Chapter XXIII KER and also in the light of Ext.P11, the petitioner’s appointment ought to have been approved. The counsel also submitted that the petitioner is a Rule 51A claimant also and in the light of the dictum laid down by this Court in **James v. State of Kerala [2004 KHC 615]** , the petitioner is entitled that benefit also. The Government Pleader on the other hand supported the impugned orders and submitted that there is nothing to interfere with the order passed by the authorities. 5. This Court considered the contentions of the petitioner and the Government Pleader. It will be better to extract Rule 2A(1) of Chapter XXIII KER: “In Lower Primary School if Arabic is introduced in Std. I, a post of Arabic Language teacher may be sanctioned if the number of Muslim pupils studying Arabic is not less than 10 and the post shall be allowed to continue 5 if the strength of the Muslim pupils studying Arabic in Standard continues to be not less than 10 or if there is an average of 7 Muslim pupils in one Standard or an aggregate of 28 Muslim pupils in all the four Standards to study Arabic, the post shall be sanctioned either as part-time or full time as per Rule 7.” 6. A perusal of Ext.P4 will show that the total students WP(C).No.25477/2020 **5** studying for Arabic in the academic year 2016-17 is 29. In Ext.P4 it is clearly stated that in the light of students strength, a full time post of Arabic Teacher was sanctioned during the year 2016-17 and 2019-20. Thereafter a part-time post of Arabic teacher was sanctioned for the academic year 2017-18 and 2018-19. Ext.P11 is a Government letter dated 29.08.2014. It will be better to extract the above letter.: “General Education (J) Department No.49275/J2/14/G.Edn Thiruvananthapuram, dated 29.8.2014 From The Secretary to Government To The District Educational Officer Ottapalam Sir, Sub : General Education – Appointment of uneconomic School – clarification – reg. Ref – Your letter No.B4/4428/14 dated 28.08.2014. I am to invite your attention to the reference cited and to inform you as follows: 1. As per circulars No.13402/J2/12/G.Edn, dated 10-5-12 and 58604/J2/12/G.Edn dated 6-11-2012, the vacancies after 2010-11 in the schools due to death, resignation, promotion, transfer etc. should be filled up with daily waged employees. The DPI has been directed to review such appointments and approve on regular basis if the appointment to teachers come within the minimum strength of the schools prescribed therein. WP(C).No.25477/2020 **6** Hence DPI shall review all appointments in such schools. 2. Appointments which come within the minimum strength can be approved on regular scale. 3. Language teacher posts can be sanctioned if there are required strength of students to learn that language as per KER. Yours faithfully, Saju S. Under Secretary for Secretary to Government” 7. I think in the light of the above aspect, the matter is to be reconsidered by the Government. Moreover, the petitioner worked as Peon in the school for the period from 02.09.2010 to 31.5.2012 as evident by Ext.P2. Similarly the petitioner was appointed as UPSA for the period from 21.07.2011 to 23.03.2012. The case of the petitioner is that her appointment as Peon was approved from 02.09.2010 to 31.05.2012. But the Government Pleader submitted that even though the appointment of the petitioner was approved for more than one academic year, the petitioner has not actually worked in the school because he worked in the post of UPSA WP(C).No.25477/2020 **7** subsequently. The petitioner was appointed as UPSA on 21.07.2011, and as on that date one full academic year is not over. But the counsel for the petitioner relied on the judgment of a Division Bench of this Court in **James’s case** (supra). It will be better to extract the relevant portion of the above judgment: “Hence according to us, the Board is not correct in saying that the appointment of a non teaching staff is only a fresh appointment and not promotion. According to us, when a non teaching staff is appointed to a higher post, it amounts to promotion. 12. In fact, a similar question had arisen with regard to the Government servant with regard to the interpretation of R8 of the Kerala State and Subordinate Service Rules. A Full Bench of this Court reported in Balakrishnan Nair v. Ram Mohan Nair (1998 (1) KLT 766), to which one of us was a party (Sankarasubban, J.) held as follows: "When an officer is appointed substantively to a permanent post, he acquires a lien on that post and ceases to hold the lien which he acquired previously on any other post". This judgment was upheld by the Supreme Court in the decision reported in Ali v. State of Kerala (2003 (2) KLT 922). It is stated thus: "It is settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on WP(C).No.25477/2020 **8** that post and not earlier". 13. In the above view of the matter, we are of the view that a member of the non teaching staff who has been promoted to a temporary vacancy does not lose his lien to the Lower Grade merely because of such promotion. The petitioner further contended that his juniors have been promoted in the Lower Grade and he is entitled to promotion to such post. The question whether he will be entitled to the post has also to be considered.” 8. I think this is also a matter to be looked into by the Government. I do not want to make any observation on merit on that aspect also. Therefore Ext.P4 can be set aside and the Government can be directed to reconsider the matter in the light of Rule 2A(1) of Chapter XXIII KER and also in the light of Ext.P11 Government letter. The Government will also consider the contention of the petitioner that she is a Rule 51A claimant in the light of the dictum laid down in **James’s case** (supra). It is true that the Government Pleader seriously argued that the dictum laid down in **James’s case** (supra) is not applicable. That can be considered by the Government at the time of hearing. Therefore, this writ petition is disposed of in the WP(C).No.25477/2020 **9** ## following manner: 1. Ext.P4 is set aside. 2. The 1[st] respondent is directed to reconsider the matter in the light of Rule 2A of Chapter XXIII KER and also in the light of Ext.P11 Government letter, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment, with notice to the petitioner. The Government will also consider the contention of the petitioner about her claim under Rule 51A based on the judgment of this Court in **James v. State of Kerala [2004 KHC** **615]** . 3. The petitioner will produce a certified copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.25477/2020 **10** ## **`APPENDIX OF WP(C) 25477/2020`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P1`|`TRUE COPY OF APPOINTMENT ORDER DATED`| ||`01.06.2016 ISSUED BY THE MANAGER`| |`EXHIBIT P2`|`TRUE COPY OF APPOINTMENT ORDER DATED`| ||`02.09.2010 ISSUED BY THE 5TH RESPONDENT`| |`EXHIBIT P3`|`TRUE COPY OF ORDER`| ||`NO.F2.6634/2019/DPI/K.DIS DATED`| ||`10.08.2019 ISSUED BY THE 2ND RESPONDENT`| |`EXHIBIT P4`|`TRUE COPY OF GO (RT) NO.2793/2020/G.EDN`| ||`DATED 14.10.2020 ISSUED BY THE 1ST`| ||`RESPONDENT`| |`EXHIBIT P5`|`TRUE COPY OF CIRCULAR`| ||`NO.58604/J2/12/G.EDN DATED 06.11.2012`| |`EXHIBIT P6`|`TRUE COPY OF 6TH WORKING DAY REPORT FOR`| ||`THE ACADEMIC YEAR 2016-17 SUBMITTED BY`| ||`THE HEAD MASTER OF THE SCHOOL TO THE 4TH`| ||`RESPONDENT ON 08.06.2016`| |`EXHIBIT P7`|`TRUE COPY OF STAFF-FIXATION ORDER FOR`| ||`THE ACADEMIC YEAR 2016-17 ISSUED BY THE`| ||`4TH RESPONDENT AS PER ORDER`| ||`NO.D.DIS/C/4566/2017 DATED 06.12.2017`| |`EXHIBIT P8`|`TRUE COPY OF STAFF-FIXATION ORDER FOR`| ||`THE ACADEMIC YEAR 2017-18 ISSUED BY 4TH`| ||`RESPONDENT AS PER ORDER`| ||`NO.D.DIS/C/4566/2017 DATED 06.12.2017`| |`EXHIBIT P9`|`TRUE COPY OF STAFF-FIXATION FOR THE`| ||`ACADEMIC YEAR 2018-19 ISSUED BY THE 4TH`| ||`RESPONDENT AS PER ORDER NO.D.DIS`| ||`C/2535/2018 DATED 03/07/2018`| |`EXHIBIT P10`|`TRUE COPY OF STAFF-FIXATION FOR THE`| ||`ACADEMIC YEAR 2019-20 AS PER ORDER`| ||`NO.D.DIS.C/45418/2019 DATED 16.07.2019`| ||`ISSUED BY THE 4TH RESPONDENT`| |`EXHIBIT P11`|`TRUE COPY OF LR NO.49275/J2/14/G.EDN`| ||`DATED 29.08.2014`| |`EXHIBIT P12`|`TRUE COPY OF GO (RT) NO.437/2020/G.EDN`| ||`DATED 23.01.2020`|