Vipin Mathew and Baburaj C.S v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944`** ## **`WP(C) NO. 5716 OF 2022`** ## **`PETITIONER/S:`** ``` 1VIPIN MATHEW AGED 36 YEARS S/O MATHEW ABRAHAM, PARAKAVIL HOUSE, KANKAPPALAM P.O. ERUMELI-686 509 (PEON/OFFICE ATTENDANT, NOEL MEMORIAL HIGH SCHOOL, KARIAMPLAVE) 2BABURAJ C.S, S/O SASIKUMAR C.K, VELLIKKARA CHARUVIL, KUMBANAD P.O.THIRUVALLA-689 547. (PEON/OFFICE ATTENDANT, NOEL MEMORIAL HIGH SCHOOL, KARIAMPLAVE) ``` ``` BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2THE DIRECTOR OF GENERAL EDUCATION, (FORMERLY THE DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANAANTHAPURAM-695 001. 3THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA-689 101 4THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA-689 101 ``` ``` WP(C) NO. 5716 OF 2022 ``` ``` 2 ``` ``` 5THE CORPORATE MANGER, N.M. SCHOOLS, NOEL MEMORIAL CORPORATE MANAGEMENT, KUMBANAD, PATHANAMTHITTA-689 547 ``` ``` SMT SABEENA P ISMAIL GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON02.06.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 5716 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** The petitioners state that they are working as Office Attendants/Peons in N.M. High School, Kariamplave, an aided School managed by the 5th respondent and governed by the provisions of the Kerala Education Act and the Rules framed thereunder. 2. Instant writ petition has been filed being aggrieved by the rejection of the promotion of the petitioners as Office Attendant/Peon on the ground that the School in which the petitioners were working is an uneconomic School and therefore protected hands ought to have been appointed in view of the circulars issued by the Government. The Revision Petition filed by the petitioners 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. 3. The petitioners contend that the 1st petitioner was appointed as a Full-time Menial in NM High School, Kumbanad, by the 5th respondent as per Ext.P1 order and the appointment was approved by 4th respondent. While the 1st petitioner was working as aforesaid, he was promoted and appointed as Peon/Office Attendant in N.M. High School, Kariamplave, from ``` WP(C) NO. 5716 OF 2022 ``` ``` 4 ``` 01.06.2017 onwards as per Ext.P2 order issued by the 5th respondent. The 2nd petitioner was appointed as a Full -Time menial in the N.M. High School, Kumbanad on 01.06.2017 in the promotion vacancy of the 1st petitioner by Ext.P3 order. While so, there occurred a retirement vacancy in N.M. High School, Kariamplave, the 2nd petitioner was promoted and appointed as Peon/Office Attendant with effect from 01.08.2018 onwards. The petitioners contend that the promotion granted to the 1st petitioner was rejected on the ground that the school was not having sufficient number of students and is an uneconomic school. Though the matter was challenged before the 2nd respondent, the same was rejected by Ext.P5 order. As a consequence of rejection of approval of the 1st petitioner, the approval insofar as the 2nd petitioner is concerned was rejected on the ground that the vacancy has not been established. Though appeals were preferred by the manager, the same was rejected by Ext.P6 and P7 orders. 4. The petitioners contend 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 ``` WP(C) NO. 5716 OF 2022 ``` ``` 5 ``` “uneconomic one” was improper as the post of Peon was mandatory in every School whether or not it has sufficient students. 5. **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. 6. It is in the above backdrop that the petitioners are before this Court seeking the following reliefs: - “i) 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 No.1 by Ext. P2 Order as Officer Attendant/Peon in N.M. High School, Kariamplave from the approved post of 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 Exhibits-P8, P9 and P10 rulings of this Hon’ble Court forthwith or within such time as this Hon’ble Court may deem ``` WP(C) NO. 5716 OF 2022 ``` ``` 6 ``` fit and proper in the interest of justice; - 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 No.2 by Exts. P3 & P4 Orders as Full Time Menial & Office Attendant/Peon in N.M. High School, Kumbanad and N.M. High School, Kariamplave respectively from the approved post of 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 Exhibits-P8, P9 and P10 rulings of this Hon’ble Court 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 petitioners in the post of Full Time Menial and Office Attendant/Peon in N.M. High School, Kumbanad and N.M. High School, Kariamplave with effect from the date of appointment onwards in the light of Exhibits-P8, P9 and P10 rulings of this Hon’ble Court 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.P6 and P7 orders issued by respondent No. 3.” 7. I have heard Sri.S.Subhash Chand, the learned counsel appearing for the petitioners and the learned Government Pleader. ``` WP(C) NO. 5716 OF 2022 ``` ``` 7 ``` 8. 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** (Supra) as upheld by the Division Bench would apply on all fours in the case of the petitioners as well. The only reason stated in the impugned order passed by the respondents to deny promotion to the petitioners in recognition of their statutory right under Rule 43 of Chapter XIV A of the KER is that the School in which the petitioners were working is an uneconomic School. 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 concerned only with Upper Primary Schools, the said provision pertaining to High Schools may not have any relevance. We thought it ``` WP(C) NO. 5716 OF 2022 ``` ``` 8 ``` necessary to refer to the said provisions only because the learned Government Pleader brought to our notice two earlier Government Orders G.O.(MS) No-179/94/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 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 ``` WP(C) NO. 5716 OF 2022 ``` ``` 9 ``` 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. 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” 9. 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 ``` WP(C) NO. 5716 OF 2022 ``` ``` 10 ``` 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. 10. 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 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 51A may have to pave the way for promotees under Rule 43 and such promotees will have a 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. ``` WP(C) NO. 5716 OF 2022 ``` ``` 11 ``` 11. In view of the law laid down by this Court, I am of the view that Exhibits P6 and P7 orders passed by the 3rd respondent cannot be sustained under law. Exhibits P6 and P7 will stand quashed. There will be an order directing respondents 1 to 4 to grant approval to the appointment by promotion of the petitioners as Office Attendants/Peons in N.M. High School, Kariamplave, from the approved post of Full-time Menial to the sanctioned promotion vacancy of Office Attendant/Peon in recognition of the statutory right under Rule 43 of Chapter XIVA of the KER and Rule 7 of Chapter XIVB of the KER and in the light of Ext.P8, P9 and P10 judgments. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. Consequently, the respondents shall disburse the benefits to which the petitioners are entitled to within a further period of one month. This writ petition is disposed of. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 5716 OF 2022 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 5716/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER BEARING NO 25/15-16 DATED 6.7.15 ISSUED BY RESPONDENT NO 5 AND APPROVED BY RESPONDENT NO 4 ``` ``` Exhibit P2TRUE COPY OF THE APPOINTMENT ORDER BEARING NO 36/1718 DATED 1.6.17 ISSUED BY RESPONDENT NO 5 ``` ``` Exhibit P3TRUE COPY OF THE APPOINTMENT ORDER BEARING NO 37/1718 DATED 1.6.17 ISSUED BY RESPONDENT NO 5 ``` - `Exhibit P4 TRUE COPY OF THE APPOINTMENT ORDER BEARING NO 65/18-19 DATED 1.8.2018 ISSUED BY RESPONDENT NO 5` ``` Exhibit P5TRUE COPY OF THE ORDER BEARING NO ET3/10502/2019/DGE DATED 11.6.2020 ``` - `Exhibit P6 TRUE COPY OF THE ORDER B3/6050/19 DATED 10.7.2019 PASSED BY RESPONDENT NO 3` - `Exhibit P7 TRUE COPY OF THE ORDER B3/7729/19 DATED 29.8.2019 PASSED BY RESPONDENT NO 3` - `Exhibit P8 TRUE COPY OF THE RULING OF THIS HON'BLE COURT IN BIPIN PAVITHRAN V & ANOTHER VS STATE OF KERALA & OTHERS (2021 (2) KHC 515)` ``` Exhibit P9TRUE COPY OF THE RULING OF THIS HON'BLE COURT DATED 10.11.2021 IN W.A NO 1358 OF 2021 AND CONNECTED APPEALS Exhibit P10TRUE COPY OF THE JUDGMENT DATED 1.12.2021 IN WPC NO 16158/2021 OF THIS HON'BLE COURT ```