Vinu M. Mathew v. State of Kerala and Others

**WP(C) NO. 16158 OF 2021** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA,** **1943** ## **WP(C) NO. 16158 OF 2021** ## **PETITIONER/S:** VINU M. MATHEW, AGED 34 YEARS, S/O.M.S. MATHUKUTTY, MUNDUMANNIL, MUNDAMALA P.O. PURAMATTOM, THIRUVALLA, PATHANAMTHITTA 689 543, (OFFICE ATTENDANT/PEON), N.M. UPPER PRIMARY SCHOOL, KEEKOZHOOR, PATHANAMTHITTA 689 672.) BY ADV S.SUBHASH CHAND ## **RESPONDENT/S:** 1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE DIRECTOR OF GENERAL EDUCATION, (FORMERLY THE DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM 695 001. 3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA 689 101. **WP(C) NO. 16158 OF 2021** **2** 4 ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KOZHENCHERRY, PATHANAMTHITTA 689 654. 5 THE CORPORATE MANAGER, N.M. SCHOOLS, NOEL MEMORIAL CORPORATE MANAGEMENT, KUMBANAD, PATHANAMTHITTA 689 547. SMT NISHA BOSE, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 16158 OF 2021** **3** ## **JUDGMENT** The petitioner states that he is working as an Office Attendant/Peon in the NM Upper Primary School, Pathanamthitta, an aided School managed by the 5th respondent. The instant writ petition has been filed aggrieved by the rejection of the promotion of the petitioner as Office Attendant/Peon on the ground that the School in which the petitioner was working is an uneconomic School and therefore a protected hand ought to have been appointed in view of the circulars issued by the Government. The Revision Petition filed by the petitioner also stands rejected stating that in the absence of specific Government Orders, a Rule 43 claimant cannot be permitted to steal a march over protected hands who are entitled as per the Government Orders to appointment in uneconomic schools. 2. The petitioner contends that the very same issue had earlier engaged the attention of this Court and a learned Single Judge of this Court in **Bipin Pavithran and Another V. State of Kerala and Others** [2021 (2) KHC 515] had held that denial of approval of the appointment of the petitioner therein as a Peon on the ground that the school is an “uneconomic one” was **WP(C) NO. 16158 OF 2021** **4** improper as the post of Peon was mandatory in every School whether or not it has sufficient students. 3. **Bipin Pavithran (Supra)** was challenged by the Government by preferring Writ Appeal Nos.1346 of 2021 and their Lordships of the Division Bench had upheld the findings of the Learned Single Judge holding that the post of Peon/Office Attendant was not one, which was likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the School concerned. It was held that the Government Orders based on which the claims are rejected cannot override the clear statutory provisions. 4. It is in the above backdrop that the petitioner is before this Court seeking the following reliefs: - “i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P18 order issued by respondent No.1; ii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 4 to grant approval to the appointment by promotion of the petitioner as Officer Attendant/Peon in N.M. Upper Primary School, Keekozhur from the approved post of **WP(C) NO. 16158 OF 2021** **5** full time menial to the sanctioned promotion vacancy of Office Attendant/Peon in recognition statutory right under Rule 43 of Chapter XIV A read with Rule 7 of Chapter XXIV B KER in the light of ExhibitsP12, P13 and P14 rulings of this Hon’ble Court and Exts.P15 and P16 Government Orders forthwith or within such time as this Hon’ble Court may deem fit and proper in the interest of justice; iii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 4 to sanction and disburse salary and allowances to the petitioner in the post of Office Attendant/Peon in N.M.Upper Primary School, Keekozhur with effect from 01.10.2014 onwards (deducting lower post salary) in the light of Exhibits-P12, P13 and P14 ruling of this Hon’ble Court and Exts.P15 and P16 Government Orders forthwith or within such time as this Hon’ble Court may deem fit and proper in the interest of justice; - iv) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exts.P5, P7 and P8 orders issued by respondent Nos.4, 3 and 2.” 5. I have heard Sri.Subhash Chand, the learned counsel appearing for the petitioner and the learned Government Pleader. ## 6. Having considered the submissions advanced and on a perusal of the records, I am of the view that the principles laid down in **Bipin Pavithran** **WP(C) NO. 16158 OF 2021** **6** **(Supra)** as upheld by the Division Bench would apply on all force in the case of the petitioner as well. The only reason stated in the impugned order passed by the respondents to deny promotion to the petitioner in recognition of his statutory right under Rule 43 of Chapter XIVA of the KER is that the School in which the petitioner was working is an uneconomic School and hence, a protected Office Attendant/Peon ought to have been appointed in the said vacancy. While deciding the very same issue, a Division Bench of this Court in the common judgment dated 10.11.2021 in Writ Appeal No.1346 of 2021 and connected cases had held thus in paragraph Nos.6 to 8 of the judgment: “6. We have given our anxious consideration to the submissions of the learned Government Pleader but find ourselves unable to accept the said contentions for the following reasons. Firstly, we find that unlike in the case of teaching staff, the provisions of Chapter XXIV B, read with Chapter XXIV A of the KER, mandate that in every Upper Primary School there can be appointed in the non-teaching establishment of such school one Peon (subsequently re-designated as Office Attendant). It is also discernible from the provisions of the KER that under certain circumstances, where the number of students exceeds a particular strength, an additional post of Peon can be sanctioned in Aided High Schools in the State. Inasmuch as we are in these Writ Appeals **WP(C) NO. 16158 OF 2021** **7** concerned only with Upper Primary Schools, the said provision pertaining to High Schools may not have any relevance. We thought it necessary to refer to the said provisions only because the learned Government Pleader brought to our notice two earlier Government Orders G.O.(MS) No179/94/G. Edn. dated 20.10.1994 and G.O (MS) No.487/95/G. Edn. Dated 26.09.1995, both of which deal with the situation of closing down of uneconomic schools in the State and the retention of posts of teachers and non-teaching staff in such situations. A perusal of the Government Orders clearly reveals that the Government having examined the matter found that in lieu of ousting the teaching and non-teaching staff from their posts consequent to the school being declared uneconomic, as a special case they could be retained in the respective schools subject to the condition that, if any of the post which are likely to be abolished in staff fixation in the school fall vacant in the said school, that post should not be filled up on any account. Even assuming that the said Government Orders still hold the field and govern the appointment of non-teaching staff in uneconomic Aided U.P Schools in the State, we are of the view that the said Government Orders can have application only when the appointment made is to a vacancy in a post that is likely to be abolished in staff fixation in the particular school. As already noted, in the instant cases, the posts of Peon/Office Attendant were not such as were likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the school concerned. We are, therefore, of the view that the Government Orders **WP(C) NO. 16158 OF 2021** **8** referred to by the learned Government Pleader can have no application to the facts and issues in the instant cases. 7. That brings us to the question as to whether there is any other Government Order or Circular, which enables the Government to reduce the benefits envisaged under the statute to persons appointed as Peon/Office Attendant pursuant to the statutory provisions under the KER. The learned Government Pleader has not been able to bring to our notice any such Circular and we find that his contentions based on the provisions in the Circulars dated 06.11.2012 cannot be accepted since the Circular admittedly applies only in respect of teaching staff in uneconomic schools in the State. His vehement contention that the mention of the phrase “all vacancies” in the said Circular would take within its ambit vacancies of non-teaching staff also cannot be legally countenanced for the Circular itself indicates that it applies only to teaching staff. At any rate, we are of the view that when the statutory provisions clearly mandate that there has to be a post of Peon/Office Attendant in a U.P. School, and there were in fact vacancies of Peon/Office Attendant in the schools in question which were filled by candidates whose eligibility for the post was never in dispute, the statutory benefit of a regular scale of pay cannot be taken away by a Circular. We are in agreement with finding of the learned Single Judge that the ambit of the statutory provisions cannot be curtailed/restricted by the provisions of any Circular issued by the Government. **WP(C) NO. 16158 OF 2021** **9** 8. The upshot of the above discussion is that we find the stand of the Educational Authorities/Government that the post of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on daily wage basis to be legally unsustainable. So long as there is a vacancy to an established post of Peon/Office Attendant, and the post is not one which is likely to be abolished in any staff fixation conducted in the school, the appointments made to the post have to be approved on regular scale of pay and not on daily wage basis” 7. While dismissing the appeal filed by the State this Court had held that the stand of the Educational Authorities/Government that the post of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on a daily wage basis was legally unsustainable. It was held that so long as there is a vacancy to an established post of Peon/Office Attendant, and the post is not one which is likely to be abolished in any staff fixation conducted in the School, the appointments made to the post have to be approved on a regular scale of pay and not on a daily wage basis. 8. The next question is whether the protected teacher entitled for preference under Rule 5A of Chapter XIVA of the KER will have to give way for promotees under Rule 43. In **Manager P.K. High School and Ors. v. State of Kerala and Ors.** [2011 (4) KLT 365], a learned Single Judge of this **WP(C) NO. 16158 OF 2021** **10** Court after an extensive analysis of the law laid down by this Court had held that the grant of promotion would be subject to the rights of the promotees under Rule 43. It was held that the statutory rules will have precedent and overriding effects in case of conflict with executive orders. This Court held that the protected teachers who may be entitled to a preference under Rule 5A may have to pave way for promotees under Rule 43 and such promotees will have preference in other circumstances not covered by Rule 43. The very same principles were laid down in **Ciji P. Jose and Ors. v. State of Kerala and Ors.** [2012 (1) KLT 867], which judgment was upheld in **State of Kerala and Ors. v. Ciji P Jose and Ors.** [2015 (1) KLT 458] though in the context of Rule 51A of the KER. 9. In view of the law laid down by this Court, I am of the view that Exhibit-P18 order passed by the 1st respondent cannot be sustained under law. Exhibit-P18 will stand quashed. There will be an order directing respondents 1 to 4 to grant approval to the appointment by promotion of the petitioner as Office Attendant/Peon in N.M. Upper Primary School, Keekozhoor from the approved post of full-time menial to the sanctioned promotion vacancy of Office Attendant/Peon in recognition of the statutory right under **WP(C) NO. 16158 OF 2021** **11** Rule 43 of Chapter XIVA of the KER. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The respondents shall also disburse the benefits to which the petitioner is entitled to as a consequence of the directions issued by this Court. This writ petition is allowed as above. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** DSV **WP(C) NO. 16158 OF 2021** **12** ## **APPENDIX OF WP(C) 16158/2021** PETITIONER (S) EXHIBITS: Exhibit P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 02.05.2005 ISSUED BY RESPONDENT NO.5. - Exhibit P2 TRUE COPY OF THE PROCEEDINGS NO. 59/14-15 DATED 22.09.2014 OF RESPONDENT NO. 5. - Exhibit P3 TRUE COPY OF THE RULING REPORTED AS JAMES V STATE OF KERALA (2004 KHC 615). - Exhibit P4 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 01.10.2104 OF SMT. M.D. SHYNI AS LOWER DIVISION CLERK IN N.M. HIGH SCHOOL, KARIAMPLAVE. - Exhibit P5 TRUE COPY OF THE ORDER BEARING NO. F/3984/2016 DATED 10.11.2016 PASSED BY RESPONDENT NO. 4. - Exhibit P6 TRUE COPY OF THE CIRCULAR BEARING NO. H265345/2007 DATED 02/05/2008 OF RESPONDENT. NO. 2. - Exhibit P7 TRUE COPY OF THE ORDER BEARING NO. BI/6288/15/L.DIS DATED 10.12.2015 THUS PASSED BY RESPONDENT NO.3. - Exhibit P8 TRUE COPY OF THE ORDER BEARING NO. F3/90992/2016/DPI/K. DIS DATED 26.12.2018 PASSED BY RESPONDENT NO. 2. Exhibit P9 TRUE COPY OF THE REVISIONAL ORDER BEARING NO. AN2/38/2019/G.EDN. DATED 05.07.2019. Exhibit P10 TRUE COPY OF THE CIRCULAR BEARING NO. **WP(C) NO. 16158 OF 2021** **13** 631703/J2/16 DATED 01.08.2016 ISSUED BY RESPONDENT NO.1. Exhibit P11 TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O. NO. 2506/2020/G.EDN. DATED 27.08.2020. - Exhibit P12 TRUE COPY OF THE RULINGS OF THIS HONB'LE COURT REPORTED AS CIJI P. JOSE V. STATE OF KERALA AND OTHERS (2012 KHC 181). - Exhibit P13 TRUE COPY OF THE RULINGS OF THIS HONBLE COURT REPORTED AS STATE OF KERALA V. CIJI P JOSE AND OTHERS (2015(1) KHC 232. - Exhibit P14 TRUE COPY OF THE RULINGS OF THIS HONBLE COURT REPORTED AS MANAGER P.K. HIGH SCHOOL AND OTHERS V. STATE OF KERALA AND OTHERS (2011 (4) KHC 179). - Exhibit P15 TRUE COPY OF THE GOVERNMENT ORDER BEARING NO. 1359/2019/G.EDN. DATED 09.04.2019 ISSUED BY RESPONDENT NO. 1. - Exhibit P16 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO. 31/2006/GE DATED 19.01.2006 ISSUED BY RESPONDENT NO. 1. - Exhibit P17 TRUE COPY OF THE JUDGMENT DATED 11/11/2020 PASSED BY THIS HONBLE COURT IN WPC NO. 22183/2020. - Exhibit P18 TRUE COPY OF THE ORDER BEARING GO(RT) NO. 3435/2021/G.EDN. DATED 20/7/2021 ISSUED BY RESPONDENT NO. 1. RESPONDENT (S) EXHIBITS: NIL