UMA M. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** **WP(C).No. 36205 of 2018** ## **PETITIONER/S:** **UMA M., AGED 44 YEARS ATHIKKAL HOUSE, MALOTH VILLAGE, VELLARIKUNDU TALUK, KASRAGOD DISTRICT 671 121.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.L.AMMU PILLAI SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **2 DIRECTOR OF PUBLIC INSTRUCTION, DIRECTORATE OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION, KASARGODE, PIN-671 121.** - **4 HEADMASTER, G.L.P.SCHOOL, PARAMBA, WEST ELERI PANCHAYAT, PARAMBA, KASARAGOD, PIN-671 121.** - **5 THE NOON MEAL COMMITTEE, G.L.P.SCHOOL, PARAMBA, WEST ELERI PANCHAYAT, PARAMBA,** **WP(C).No. 36205 of 2018** 2 **KASARAGOD, PIN-671 121, REPRESENTED BY ITS CONVENER.** **6 PRIYA HARIDAS, W/O.HARIDAS, PULIKKODAN HOUSE, KONNAKKAD P.O., PARAPPA, KASARGOD DISTRICT, PIN-671 533.** **BY ADVS. GOVERNMENT PLEADER SRI.M.SASINDRAN** ## **OTHER PRESENT:** **SMT.G.RANJITA ,GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 36205 of 2018** 3 ## **J U D G M E N T** Petitioner, who had been appointed for cooking noon meals in GLP School, Paramba by the noon meal committee as per Exts.P1 and P2 orders challenges Ext.P8 notification issued on 02.11.2018 inviting applications for appointment as a Cook for preparation of noon meal in the School. 2. According to petitioner, Smt. C.K. Sarojini was the regular incumbent appointed for preparing noon meals in the GLP School. Because of kidney ailments, she was laid up and in her absence the Noon Meal Committee appointed the petitioner as per Ext.P2 resolution dated 07.10.2013 and thereafter as per Ext.P1 resolution dated 19.10.2016. According to her, she is residing very near to the School in the very same Panchayat. Smt. Sarojini passed away on 06.04.2017. She was appointed as Cook on the basis of a selection conducted on 30.03.2017. It is her **WP(C).No. 36205 of 2018** 4 further case that that based on Ext.P3 order issued by the Deputy Director of Education-the 3[rd] respondent on 03.06.2017, the 6[th] respondent was inducted in her place and she is not replaced even after this Court as per Ext.P5 judgment dated 01.10.2018, dismissed her writ petition seeking directions to the respondents to allow her to continue in service and petitioner had forwarded the judgments to the respondents 1 to 5. It is stated that the Noon Meal Committee had taken the stand that they had appointed the petitioner as Cook. Without accommodating the petitioner, in tune with Ext.P5 judgment, the 4[th] respondent-the Headmaster issued Ext.P8 notice inviting application for fresh selection. Petitioner challenges the same, stating that the same is in violation of Ext.P5 judgment and that a fresh selection is not necessary when the Noon meal committee had selected and appointed her. It is also her case that this Court has already found that the appointment of 6[th] respondent was without authority. **WP(C).No. 36205 of 2018** **==> picture [7 x 8] intentionally omitted <==** It is her further case that the 6[th] respondent is residing in another Panchayath and her only claim is that her mother was working in the post. 3. This writ petition was filed immediately on coming to know about Ext.P8 notice. When the matter came up for consideration on 07.11.2018, this Court stayed the operation and implementation of all further proceedings pursuant to Ext.P8. However, it is seen that respondents proceeded with the selection and petitioner also participated in the same. 4. The contention of the petitioner is that her selection is made in accordance with law and no further selection was necessary. 5. The 4[th] respondent has filed a counter affidavit. It is stated that Noon Meal Committee had appointed the petitioner temporarily as a substitute Cook; Smt. Sarojini was on leave since 19.10.2016, when the petitioner was appointed as a substitute Cook; vacancy arose only on 01.06.2017; no documents exist in the School proving her appointment in the **WP(C).No. 36205 of 2018** 6 vacancy of the Cook; no documents are available to show that the petitioner had worked on the basis of Exts.P1 and P2; it is Noon Meal Committee of School which is competent to appoint or dismiss a Cook; General Body meeting and SMC meeting was conducted on 14.07.2018, when its members were selected; the Noon Meal Committee met on 02.11.2018 for implementing the High Court order; as it was difficult to find out a new Cook, the 6[th] respondent was allowed to continue temporarily till the new Cook was posted; an interview was held in the presence of AEO on 07.11.2018, in which a priority list was prepared from among 15 candidates and petitioner was appointed; later it was found that the SMC Chairman, who was included in the Committee was ineligible to be included in the Noon Meal Committee as per DPIs Circular dated 20.06.2012; therefore Committee met on on 08.11.2018 to rectify the mistake and to cancel the appointment of petitioner. It is stated that based on interim order passed by this Court on **WP(C).No. 36205 of 2018** 7 06.12.2018, 4[th] respondent re-appointed the petitioner; subsequent to that 75% of the parents are reluctant to send their wards to the school on the ground that preference is not given to SC/ST/OBC community, though the petitioner belongs to OBC community; in the meeting of PTA held on 13.12.2018 they have passed a resolution demanding appointment of a parent belonging to ST or else, they will not send their children to the School; it was pointed out that because of the appointment of petitioner, there was considerable shortage in the number of students attending the School. It was also decided to furnish all the complaints to the 3[rd] respondent and also to file any statement/counter affidavit before this Court only after getting approval from him, who participated in the meeting as the Chief guest. 6. The 6[th] respondent has filed a counter affidavit stating that the appointment of petitioner as per Exts.P1 and P2 orders were only on temporary arrangement and she had worked only for a few days **WP(C).No. 36205 of 2018** 8 till the mother of 6[th] respondent re-joined duty; it was the 6[th] respondent, who worked as a substitute when it was not possible for her mother to perform her duties; though the 3[rd] respondent revised his order Ext.P3 saying that Noon Meal Committee is the authority to appoint, pursuant to Ext.P5 judgment selection had to be conducted as per the Circular; the judgment does not stand in the way of regular selection; therefore petitioner cannot have any grievance over Ext.P8 notification issued for regular selection; the petitioner is not entitled to continue as Cook because she was selected on 07.11.2018 by a Committee which was constituted illegally by the participation of one Shri Joy Joseph in his capacity as SMC chairman, who was not a parent of any children studying in the School; therefore his participation in the Committee which selected the petitioner made the selection of petitioner invalid; moreover there was no representation of parents of SC/ST or differently abled or women in the Committee which **WP(C).No. 36205 of 2018** 9 selected the petitioner; therefore the selection is vitiated on that ground also; as per Ext.R6(a) order of the AEO, approved the decision of the Noon Meal Committee cancelling the appointment of petitioner based on the selection made on 07.11.2018. The 6[th] respondent has produced Ext.R6(b) ration card stating that she was also included in that renewed ration card; she is residing within the same ward where the School is situated and even the residence of her husband is within the same village. she has also produced an experience certificate towards her service as a Cook issued by the Headmaster on 23.11.2018, in which it is stated that she had been working as Cook from 05.06.2017 to 02.11.2018 temporarily based on appointment by 3[rd] respondent. He further certified that the 3[rd] respondent has in his letter dated 3.06.2017, informed that 6[th] respondent has worked for about 7 months earlier also; in the meeting of Noon meal committee held on 19.10.2016 her mother had requested to appoint her as her **WP(C).No. 36205 of 2018** 10 substitute; attendance register for cook is maintained in the school only from 05.06.2017. 7 **.** The petitioner has filed separate reply affidavits to both counter affidavits. Producing Ext.P9 order of appointment issued on 08.11.2018 on the basis of selection conducted on 07.11.2018, she stated that the respondents did not permit her to join duty. Petitioner stated that without producing the circular based on which the lapse was found out there is no basis for the cancellation of the selection. She has also produced the Circular issued by the DPI on 30.05.2018 relating to the modalities of selection as well as the constitution of the Noon Meal Committee and pointed out that there is no provision in any of the Circulars as claimed by the respondents. She has pointed out that the presence of AEO or Noon Meal Officer in the meeting of Noon Meal Committees while appointing the Cooks, is insisted only as per Ext.P10 Circular issued on 30.05.2018. She has produced Ext.P11 letter dated 01.11.2016 from **WP(C).No. 36205 of 2018** 11 the previous Headmistress addressed to the AEO, explaining the emergencies which arose on account of leave availed by Smt. Sarojini or on account of her absence otherwise and on the question of appointment to the vacancy. It was pointed out the petitioner was residing very near to the School and whenever emergencies arose, she was available to help. It was pointed out that 6[th] respondent was allowed to help her mother; but when she availed leave, petitioner was appointed in her place. She had also pointed out the difficulty to avail the services of the 6[th] respondent residing far away in another Panchayath when persons were available nearby pointing out the experience. According to the petitioner, the inclusion of the SMC Chairman or ineligibility of the SMC chairman would not stand in the way of the validity of the selection process as there was quorum. Petitioner asserted that some vested interests wants to see that the 6[th] respondent is appointed on account of which the 4[th] respondent **WP(C).No. 36205 of 2018** 12 has filed such a counter affidavit. 8. In the reply affidavit filed by the petitioner against the counter affidavit of the 6[th] respondent, petitioner pointed out that in the absence of the minutes of the meeting held on 08.11.2018, Ext.R6(a) cannot be relied on. It is also pointed out that even the presence of an ineligible member would not vitiate the selection in view of the presence of several other members. 9. I heard Sri. v. Varghese, learned Counsel appearing for the petitioner; Sri. M. Sasindran, the learned Counsel appearing for the 6[th] respondent and Smt. Renjita, the learned Government Pleader. 10. The writ petition is filed challenging Ext.P8 notification inviting applications for selection and appointment of Cook in the GLP School on the ground that she is already appointed in the post, which this Court had recorded in Ext.P5 judgment. In paragraph 6 of the counter affidavit, the 4[th] respondent has stated, after the petitioner **WP(C).No. 36205 of 2018** 13 produced a High Court Order on 31.10.2018 and requested to admit her in service, the Noon Meal Committee met on 02.11.2018 for implementing the High Court Order. From Ext.R6(a) letter, it is stated that selection became necessary/vacancy arose on court orders. Neither the petitioner nor the 6[th] respondent nor the official respondents have a case that there is any court order on this issue other than Ext.P5 judgment as on 31.10.2018. On a perusal of Ext.P5 judgment, no such direction is seen and it cannot also be said that a vacancy of Cook arose on court orders. On the other hand, this Court recorded the stand of the Noon Meal Committee that they have appointed the petitioner, while declaring that 6[th] respondent does not have any right to continue. 11. The W.P.(C).No.21725 of 2018 leading to Ext.P5 judgment was filed by the 6[th] respondent claiming continuance based on Ext.P3 order issued by 3[rd] respondent alleging that the Noon Meal Committee was obstructing her from doing the work. It is stated **WP(C).No. 36205 of 2018** 14 that the 3[rd] respondent himself reviewed Ext.P3 order and cancelled it. Whatever it may be, Ext.P3 is found to have been issued without authority in ExtP5 judgment. From Ext.P3 it is seen that on the basis of a complaint from the 6[th] respondent, the 3[rd] respondent directed her appointment in the place of petitioner. The 3[rd] respondent has stated that Smt. Sarojini, the original incumbent of the post was ailing from Kidney disease and based on the request of the 6[th] respondent, who is her daughter, to allow her to continue in her place, she was allowed to hold the post till 31.03.2017. The Noon Meal Committee was directed to take a decision in the matter; Smt. Sarojini passed away on 06.04.2017; even before the death Smt. Sarojini, the Noon Meal Committee had arrived at a decision to conduct a selection based on which, petitioner was appointed and the Assistant Educational Officer had reported the matter to him as per letter No.D-2762/2016 dated 25.05.2017; the 6[th] respondent submitted complaints before the Minister **WP(C).No. 36205 of 2018** 15 for Education, District Collector, etc., claiming appointment in the place of her mother. The 3[rd] respondent found that though, the Noon Meal Committee is the authority competent to make appointment and termination, there cannot be any termination without stating any reason and hence directed the appointment of 6[th] respondent in her place. But immediately thereafter he reviewed it when the 6[th] respondent challenged it resulting in Ext.P5 judgment. In that writ petition, the Noon Meal Committee stated before this Court that the 6[th] respondent cannot be permitted to continue as Cook as the petitioner was already appointed. This Court also observed that the 6[th] respondent was from a different Panchayath whereas the petitioner is from the same Panchayath. It was found that the appointment of the 6[th] respondent as Cook by the third respondent was without any authority. The writ petition was thereafter dismissed. It appears that there was no appeal as against Ext.P5 judgment. **WP(C).No. 36205 of 2018** 16 12. In that writ petition the Headmaster, was the first respondent; the Noon Meal Committee was the 3[rd] respondent; the petitioner is seen to have been impleaded as addl.4[th] respondent. In this case the Headmaster, who is The 4[th] respondent, after stating that petitioner was appointed on 30.03.2017, further says that there are no documents to prove her appointment against a vacancy which arose from 01.06.2017. He has not cared to produce the minutes of any of the selection proceedings. Ext.P5 judgment was rendered on 01.10.2018. The reason for a deviation from the stand adopted in Ext.P5 judgment is not also explained. 13. From Ext.R6(a) it is seen that an interview was held on 07.11.2018 “against a vacancy which arose on court order” . It is stated that the 4[th] respondent had in his letter dated 8.11.2018 requested for approval of the decision dated 8.11.2018 of the Noon Meal Committee to cancel the selection of Cook made by the committee on 07.11.2018, seeing that serious **WP(C).No. 36205 of 2018** 17 lapses occurred in the constitution of the Noon Meal Committee, which conducted the selection of cook on 07.11.2018. It is stated that the very same Committee met on 08.11.2018 and decided to cancel the selection made by it on 07.11.2018; the AEO granted approval to the said decision as per Ext.R6(a) on 09.11.2018. AEO also directed to take follow up action at the earliest. 14. The 6[th] respondent has already suffered a judgment Ext.P5 in which there is a finding regarding her residence. The Noon Meal Committee has taken a stand before this Court as seen from Ext.P5 judgment that petitioner was appointed. Therefore, there was no reason for a selection to be conducted on 07.11.2018 on the basis of Ext.P8 notification. Even though, this Court had passed an interim order on 07.11.2018, interdicting all the proceedings, the AEO has on a different ground cancelled the said selection. As the selection itself is seen conducted on an erroneous assumption that there is a direction **WP(C).No. 36205 of 2018** 18 from this court to be implemented, I find that Ext.P8 notification was unwarranted. The consequential selection also made on 7.11.2008 and its cancellation are all therefore unwarranted. Therefore, I find it unnecessary to go into the validity of the said selection or its cancellation. Therefore, the proceedings based on Ext.P8 shall stand set aside. Petitioner would be entitled to continue on the basis of the selection already conducted, as recorded by this court in Ext.P5 judgment. The writ petition is accordingly allowed. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 36205 of 2018** 19 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RESOLUTION DATED 19.10.2016.** - **EXHIBIT P2 TRUE COPY OF THE RESOLUTION DATED 07.10.2013.** - **EXHIBIT P3 TRUE COPY OF THE LETTER NO.H1/6341/2017 DATED 03.06.2017.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.NM(1)/39000/2017/DPI DATED 30.05.2017.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 01.10.2018 IN WP(C)NO.21725 OF THIS HON'BLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE FORWARDING LETTER DATED 30.10.2018 ADDRESSED TO THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE POSTAL RECEIPT.** **EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 02.11.2018 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE APPOINTMENT ORDER DATED 07.11.2018 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE RELEVANT EXTRACT OF CIRCULAR NO.NMA1/37000/2018/DPI DATED 30.5.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 01.11.2016 OF THE HEADMISTRESS OF THE SCHOOL ADDRESSED TO THE 3RD RESPONDENT.** **WP(C).No. 36205 of 2018** 20 ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) TRUE COPY OF THE MINUTES OF THE PTA MEETING. EXHIBIT R6(A) TRUE COPY OF THE ORDER DATED 09.11.2018 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, CHITTARICKAL. EXHIBIT R6(B) TRUE COPY OF THE RATION CARD IN WHICH THE PETITIONER IS ALSO INCLUDED, WHICH WAS RENEWED ON 15.03.2017. EXHIBIT R6(C) TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE HEADMASTER OF THE SCHOOL.**