Sreeju C.J. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ## **`WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945`** ## **`WP(C) NO. 5606 OF 2015`** ## **`PETITIONER:`** ``` SREEJU C.J. S/O.CHANDRA BABU, PEON, MAHATMAJI MEMORIAL HIGHER SECONDARY SCHOOL, UPPOODU, EAST KALADA, KOLLAM DISTRICT. RESIDING AT: REVATHY, PAVITHRESWARAM POST, PUTHOOR, KOLLAM DISTRICT. BY ADVS. SRI.M.V.THAMBAN SRI.K.V.ANIL KUMAR SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM, PIN-695001. 3THE DEPUTY DIRECTOR EDUCATION KOLLAM, KOLLAM DISTRICT, PIN-691001. 4THE DISTRICT EDUCATIONAL OFFICER KOLLAM, PIN-691001. 5THE MANAGER MMHSS, UPPODU, EAST KALADA P.O., KOLLAM, PIN- 691502. BY ADVS. SR.GP. SRI. BIMAL K. NATH ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` : 2 : W.P.(C). No.5606 of 2015 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C). No.5606 of 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of August, 2023 ## **JUDGMENT** The above writ petition is filed challenging Exts. P2, P6, P9, P13 and P14 and for a consequential direction to the 5[th] respondent to appoint the petitioner as a Full Time Menial from 30.04.2008 onwards. 2. Petitioner was appointed as Full Time Menial w.e.f 30.04.2008 at MMHS, Uppodu, East Kalada as per Ext.P1 order of appointment. The said appointment was against the promotion vacancy of Sri.Shine as Lab Assistant to the Higher Secondary Section of the school and the transfer appointment of Sri. S.Shine was later approved also. However, the 4[th] respondent has rejected the approval of appointment of the petitioner stating that the 5[th] respondent Manager has not fulfilled the directions contained in GO(P)No.178/02 and G.O(P)No.46/06(produced as Exts.P3 and P4). The petitioner submits that Exts.P3 and P4 Government Orders relied on for rejecting the claim of the petitioner as per Ext.P2 are in respect of newly opened schools and the petitioner would submit that as on the date of appointment of the petitioner, there : 3 : W.P.(C). No.5606 of 2015 were no protected Full Time Menial awaiting deployment in the Sub District. Petitioner further contended that, no information was given to the Manager in this regard by any of the Educational Authorities. The petitioner relies on Ext.P5 information obtained as per the Right to Information Act that no un-deployed protected Full Time Menial was awaiting posting as 30.04.2008. Aggrieved by Ext. P2, petitioner preferred an appeal before the 3[rd] respondent and the said appeal was rejected as per Ext.P6 order maintaining the stand that since the school is a newly opened one, the vacancy which arose in the school should be filled up only with protected hands. Later, the 4[th] respondent has approved the appointment of the petitioner as Full Time Menial w.e.f. 01.06.2011 as per order No.B2/3429/13/K.Dis. dated 31.05.2013. While working so, the petitioner was promoted as Peon w.e.f. 14.08.2013 and the promotion was duly approved by the 4[th] respondent, as is seen from Ext.P8. Challenging Exhibit P6, petitioner filed Ext.P7 Revision Petition before the 1[st] respondent seeking approval of his appointment as Full Time Menial, which was rejected by Ext.P9 order stating a fresh ground that the school is an uneconomic school and that the Government imposed restrictions in making appointments in uneconomic schools by : 4 : W.P.(C). No.5606 of 2015 which it was ordered to fill all the vacancies in these schools by appointing protected hands and that one protected Full Time Menial, viz., Anil Kumar, Matha HS, Vilakupara was available in the district for deployment as on the date of appointment of the petitioner. The petitioner on the strength of Ext.P10 order, whereby the appointment of similarly situated hand, who was appointed as Full Time Menial, was approved with effect from 03.03.2008 on the ground that the 3[rd] respondent has reported that no protected Full Time Menial is awaiting deployment as on 03.03.2008 in Kollam District, would contend that there is absolutely no reason for not approving the appointment of the petitioner with effect from the date of appointment itself. Aggrieved by the same, the petitioner has preferred Ext.P11 Review Petition, which was rejected by Ext.P14, stating a new reason that since the appointment of the petitioner was approved w.e.f 01.06.2011 by including him in non teaching package and therefore, since the prior service of those who were included in the package cannot be considered. The petitioner relying on Ext.P13 would submit that the said Anil Kumar, who is claimed to be the protected Full Time Menial working in H.S. Edamulakkal, has been posted by the Manager, MKLM HS, Kannanalloor as per : 5 : W.P.(C). No.5606 of 2015 the list given from the office of the Deputy Director of Education. But the Manager, MKLM HS, Kannanalloor has informed that he has not joined the school till date. Further case of the petitioner is that no list of the protected hands were forwarded to the Manager and therefore, there is no liability or responsibility to the Manager to appoint a protected hand until and unless the list of protected hands is furnished by the department. In support of his contentions, the petitioner relies on the judgment of this Court in _**State of Kerala v. Nadeera [2013 (2) KLT 88]**_ . The petitioner also relies on the judgment of this Court in _**Moosakutty v. State of Kerala [2009 (3) KLT 863]**_ in support of his contentions. 3. A counter affidavit has been filed by the 1[st] respondent Government that MMHSS, Uppoodu is an aided school comes under the purview of a newly opened/upgraded school and it is mandatory on the part of the Manager to absorb at least one protected employee in the school in the existing/arising vacancies and the Manager has failed to comply with the directions issued by the Government. The petitioner's appointment as Full Time Menial was rejected by the District Educational Officer, Kollam as per Ext.P2. It is further submitted that as per G.O.(P)No. 108/2013/G.Edn., dated 25.03.2013, the Government have : 6 : W.P.(C). No.5606 of 2015 introduced a package for pending approval of appointment of nonteaching staff in aided schools in the State and the petitioner's appointment was approved with effect from 01.06.2011 on the strength of the said Government Order. It is reiterated in the counter affidavit that one Anil Kumar, who was a protected Full Time Menial, ought to have been appointed by the Manager. It is further submitted that the Deputy Director, Education is the concerned authority competent to prepare and supply the list of protected hands to the Managers on requisition, and in the instant case no such request was made by the Manager before the Deputy Director of Education, Kollam, when there arose a vacancy of Full Time Menial in MMHSS, Uppoodu with effect from 30.04.2008. 4. The only reason stated in Ext.P2 is that the Manager has not fulfilled the directions contained in Exts.P3 and P4, that the management of the newly opened/upgraded aided school shall fill up all the existing/arising vacancies in the schools by appointing a protected hand, which was modified by Ext.P4 to the effect that at least one protected employee should be appointed from the list of protected teachers. Ext.P5 specifically states that there was no unemployed protected Full Time Menial as on 30.04.2008 in the District. The petitioner's appointment was on 30.04.2008. Ext.P13 : 7 : W.P.(C). No.5606 of 2015 would reveal that the said Anil Kumar, who is claimed to be a protected Full Time Menial, has been posted by the Manager, MKLM HS Kannanalloor as per the list given from the office of the Deputy Director of Education and the Manager of the said school has intimated that he has not joined the school till date. Ext.P13 also would show that the protected Full Time Menial Anil Kumar was given a posting as per the list given by the office of the Deputy Director of Education. A perusal of rejection orders would reveal that different reasons have been stated for rejecting the claim of the petitioner. Ext.P2 says that the school being a newly opened school, the Manager has not complied with the condition that one protected hand should be appointed. The said ground is not sustainable in the light of Exts.P5 and P13. The revision petition was later rejected by Ext.P9, stating the very same reason. But in Exts.P10 and P14, the reason stated for rejecting the claim of the petitioner was that appointment of the petitioner was approved with effect from 01.06.2011 by including the petitioner in the nonteaching staff package and since the prior service of those who are included in the package cannot be considered, the claim of the petitioner was rejected. Going by Exts.P5 and P13, I am of the opinion that the reasons stated in the impugned orders that no : 8 : W.P.(C). No.5606 of 2015 protected Full Time Menial was available in the District cannot be sustained. Further, the stand taken in the counter affidavit is that it is incumbent on the Manager to make a request for furnishing the list of protected hands and the same has not been done by the Manager also cannot be accepted in view of the judgment in _**Nadeera**_ ’s case (Supra) in which it is specifically held that the only obligation on the Manager is to appoint a protected teacher whenever a list is sent and that there is no obligation on the part of the management of aided school to secure the list of protected teachers. There is no case for the department that the list of protected teacher was forwarded to the Manager at that relevant point of time. In view of the same, the petitioner ought to have been appointed with effect from 30.04.2008 and the reason stated in Ext P14 is not sustainable. 5. In view of the above, I am of the opinion that the petitioner is entitled for the reliefs sought for. Therefore, Exts. P2,P6, P9, P13 and P14 are quashed with a consequential direction to the 4[th] respondent to approve the appointment of the petitioner as Full Time Menial at 5[th] respondent’s school with effect from 30.04.2008 and pay all consequential benefits including arrears of salary to the petitioner, within a period of 3 months from the date of receipt W.P.(C). No.5606 of 2015 : 9 : ## of a copy of this judgment. With the above said direction, the writ petition is disposed as above. **Sd/VIJU ABRAHAM JUDGE** sm/ : 10 : W.P.(C). No.5606 of 2015 ## **`APPENDIX OF WP(C) 5606/2015`** ``` PETITIONER EXHIBITS ``` ``` P1: COPY OF THE APPOINTMENT ORDER DATED 30.4.2008 APPOINTING THE PETITIONER AS FULL TIME MENIAL (FTM) P2: COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT BEARING NO.B2/3603/08 DATED 23.06.2008. P3: COPY OF THE GOVT. ORDER BEARING NO.178/02/G.EDN. DATED 28.06.2002. P4: COPY OF THE GOVT. ORDER BEARING GO(P)NO.46/06/G.EDN. DATED 1.02.2006. P5: COPY OF THE INFORMATION OBTAINED UNDER THE R.I. ACT DATED 19.9.2013. P6: COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT BEARING NO.14963/08/K.DIS. DATED 13.10.2008. P7: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 19.9.2013. P8: COPY OF THE APPOINTMENT ORDER DATED 14.08.2013. P9: COPY OF THE GO(RT)NO.2040/14/G.EDN. DATED 26.5.2014. P10: COPY OF THE GO(RT)NO.4581/2012/G.EDN. DT.27.09.2012. P11: COPY OF THE REVIEW PETITION DATED 12.6.2014. P12: COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT FOR THE PERIOD FROM 2006-07. P12(A): COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT FOR THE PERIOD FROM 2007-08. P12(B): COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT FOR THE PERIOD FROM 2008-09. P12(C): COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT FOR THE PERIOD FROM 2009-10. P13: COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 21.10.2008. P14: COPY OF THE LETTER FROM SPECIAL SECRETARY DATED 8.12.2014. ```