WP(C) Nos.10753 & 11984 of 2023: Dhibu M. Varkey v. State of Kerala & Others; Nisha S v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 WP(C) NO. 10753 OF 2023 ``` ## **`PETITIONER:`** ``` DHIBU M. VARKEY AGED 39 YEARS, S/O. VARKEY VARKEY, MALAYIL HOUSE, THIRUMOOLAPURAM PO, THIRUVALLA -689115 (CLERK, CMS HIGH SCHOOL, THALAVADY) BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001` - `2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY DIRECTOR OF PUBLIC INSTRUCTION), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695014` - `3 THE DEPUTY DIRECTOR (EDUCATION) OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), ALAPUZHA -, PIN - 688001` - `4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KUTTANAD - ., PIN - 688506` - `5 THE CORPORATE MANAGER THE CORPORATE EDUCATIONAL AGENCY, CMS SCHOOLS, CSI DIOCESAN OFFICE, CATHEDRAL ROAD, KOTTAYAM- ., PIN - 686001 BY ADV GOVERNMENT PLEADER` ## **`OTHER PRESENT:`** ``` SMT. NISHA BOSE, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2023, ALONG WITH WPC 11984/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.10753 & 11984 of 2023 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 ``` ## **`WP(C) NO. 11984 OF 2023`** ## **`PETITIONER:`** ``` NISHA S AGED 39 YEARS W/O. RAJEEV RAJU, PALAPPARAMBIL, PANDANKARI PO, EDATHUA, ALAPPUZHA-. (OFFICE ATTENDANT, CMS HIGH SCHOOL, THALAVADY), PIN - 689673 ``` ``` BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENTS:`** |`1`|`THE STATE OF KERALA`| |---|---| ||`REPRESENTED BY THE SECRETARY TO GOVERNMENT,`| ||`DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT`| ||`SECRETARIAT, THIRUVANANTHAPURAM - 695001`| |`2`|`THE DIRECTOR OF GENERAL EDUCATION (FORMERLY`| ||`DIRECTOR OF PUBLIC INSTRUCTION)`| ||`OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,`| ||`JAGATHY,THIRUVANANTHAPURAM - ., PIN - 695014`| |`3`|`THE DEPUTY DIRECTOR (EDUCATION)`| ||`OFFICE OF THE DEPUTY DIRECTOR (EDUCATION),`| ||`ALAPUZHA - 688001`| |`4`|`THE DISTRICT EDUCATIONAL OFFICER`| ||`OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,`| ||`KUTTANAD - 688506`| |`5`|`THE CORPORATE MANAGER`| ||`THE CORPORATE EDUCATIONAL AGENCY,`| ||`CMS SCHOOLS, CSI DIOCESAN OFFICE, CATHEDRAL`| ||`ROAD, KOTTAYAM-, PIN - 686001`| ||`BY ADV SMT.SURYA BINOY, SR.GP`| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2023, ALONG WITH WPC 10753/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.10753 & 11984 of 2023 **3** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------W.P.(C).Nos.10753 & 11984 of 2023 ---------------------------------------------Dated this the 04[th] day of April, 2023** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. 2. I will narrate the facts in W.P.(C). No.10753 of 2023 first: The petitioner in W.P.(C). No.10753 of 2023 was promoted and appointed as Clerk in CMS High School, Thalavady, with effect from 01.07.2020 onwards, in a regular retirement vacancy ,as per Ext.P1 order passed by the 5[th] respondent. The 4[th] respondent rejected Ext.P1 appointment by promotion of the petitioner under Rule 43 of Chapter XIV A KER, as per Ext.P2 order, on the ground that, High School Section of the school was a newly upgraded one, and therefore, a protected hand ought to WP(C).Nos.10753 & 11984 of 2023 **4** have been appointed. Thereafter, on appeal, the said order was confirmed by the 3[rd] respondent as per Ext.P3 order. It is submitted that, in view of the fact that the 5[th] respondent had already appointed protected teachers, the 2[nd] respondent, in statutory revision filed under Rule 8A of Chapter XIV A KER, directed the 4[th] respondent to approve the appointment of the petitioner, by Ext.P4 order. However, by Ext.P5 order, the 4[th] respondent again rejected the appointment of the petitioner by promotion as Clerk on the ground that the school in question, viz., CMS High School, Thalavady, was an uneconomic school and therefore, a protected hand ought to have been appointed. According to the petitioner, the issue in question has been specifically covered in favour of the petitioner by Exts.P6 and P7 judgments. The petitioner contended that Government Orders/Executive Orders could not either cripple or cabin statutory provisions contained in Rule 51A and Rule 43 of Chapter XIV A KER. The counsel also relied on the judgment of this Court in WP(C).Nos.10753 & 11984 of 2023 **5** **the Secretary, Corporate Management of schools under the Society of the Order of Sacred Transfiguration, Pathanapuram v. State of Kerala [2023 (2) KHC 46]** , in which this Court observed that the operation of a claim under Rule 43 of Chapter XIV A KER could not be interdicted by provisions contained in a Government Order. It is also submitted that as per Ext.P12 judgment, this Court was pleased to hold that a statutory claim under Rule 43 of Chapter XIV A KER could not be whittled down by way of the provisions contained in a Government Order. Therefore it is submitted that Ext.P5 order is unsustainable and the petitioner is liable to be approved as Clerk with effect from 01.06.2020 onwards. 3. W.P.(C). No.11984 of 2023 is filed by one Nisha S., who was promoted and appointed as Office Attendant in CMS High School, Thalavady, with effect from 01.07.2020 onwards, in the vacancy arose because of the promotion of the petitioner in W.P.(C). No.10753 of 2023. But the 4[th] respondent rejected Ext.P1 appointment by WP(C).Nos.10753 & 11984 of 2023 **6** promotion of the petitioner Nisha S. under Rule 43 of Chapter XIV A KER as per Ext.P2 order on the ground that High School Section of the school was a newly upgraded one and therefore, a protected hand ought to have been appointed. The petitioner in this case filed an appeal and the said order was confirmed by the 3[rd] respondent as per Ext.P3 order. However, in view of the fact that the 5[th] respondent had already appointed protected teachers, the 2[nd] respondent, in statutory revision under Rule 8A of Chapter XIV A KER, directed the 4[th] respondent to approve the appointment of the petitioner in this case by Ext.P4 order, if it was otherwise in order. However, by Ext.P5 order, the 4[th] respondent has again rejected the appointment of the petitioner by promotion as Office Attendant on the ground that the school in question viz., CMS High School, Thalavady was an uneconomic school and therefore, a protected hand ought to have been appointed. It is submitted that the issue in this case also is covered by Exts.P6 and P7 judgments of this Court and WP(C).Nos.10753 & 11984 of 2023 **7** also the judgment in **Secretary, Corporate Management of schools’ case** (supra). 3. Heard the learned counsel for the petitioners and the learned Government Pleader. 4. Ext.P5 is the impugned order in both the writ petitions. The main reason mentioned in Ext.P5 to reject the approval is that the school in which the petitioner is appointed is an uneconomic school. Whether such appointment can be approved is considered by a Division Bench of this Court in Ext.P9 judgment produced in these writ petitions. It will be better to extract the relevant portion of Ext.P9 judgment here: “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.” 5. In the light of the above dictum and also in the light of Exts.P6 to P8 judgments and the other judgments WP(C).Nos.10753 & 11984 of 2023 **8** produced in the writ petitions, I am of the considered opinion that the finding in Ext.P5 in these writ petitions will not stand. Therefore, the impugned orders are to be set aside. Hence, these writ petitions are disposed of in the following manner: 1. Ext.P5 in W.P.(C). Nos.10753 and 11984 of 2023 are quashed. 2. The 3[rd] respondent in W.P.(C). No.10753 of 2023 is directed to reconsider the matter in the light of the principle laid down by this Court in Ext.P9 and other judgments produced along with these writ petitions, as expeditiously as possible, at any rate within one month from the date of receipt of a stamped certified copy of this judgment. Consequential benefits shall also be disbursed to the petitioner, within a period of two months from the date on which the above WP(C).Nos.10753 & 11984 of 2023 **9** order is passed. 3. The 3[rd] respondent in W.P.(C). No.11984 of 2023 is directed to reconsider the matter based on the decision taken by the 3[rd] respondent in the case of the petitioner in W.P.(C). No.10753 of 2023 as directed above, within one month from the date on which the decision as directed in W.P.(C). No.10753 of 2023 is taken. Based on the above order, the consequential benefits also shall be disbursed to the petitioner within two months from the date on which the above decision is taken. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV/das WP(C).Nos.10753 & 11984 of 2023 **10** ## **`APPENDIX OF WP(C) 10753/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF PROMOTION AND APPOINTMENT ORDER OF THE PETITIONER FROM THE POST OF OFFICE ATTENDANT TO THE POST OF CLERK IN CMS HIGH SCHOOL, THALAVADY DATED 1/7/2020 Exhibit P2TRUE COPY OF ORDER BEARING NO.B3/18010/2020 DATED 18.11.2020 THUS PASSED BY RESPONDENT NO.4 Exhibit P3TRUE COPY OF ORDER BEARING NO.B2/213468/2021 DATED 16.03.2022 THUS PASSED BY RESPONDENT NO.3 Exhibit P4TRUE COPY OF ORDER PASSED BY RESPONDENT NO.2 IN REVISION BEARING NO.EC1/237388/2022 DATED 26.11.2020 Exhibit P5TRUE COPY OF ORDER BEARING NO.B3/129474/2022 DATED 28.02.2023 THUS PASSED BY RESPONDENT NO.4 Exhibit P6TRUE COPY OF RULING OF THIS HON'BLE COURT THUS REPORTED AS CIJI P. JOSE V. STATE OF KERALA (2012 (1) KLT 867) Exhibit P7TRUE COPY OF RULING OF THIS HON'BLE COURT IN STATE OF KERALA V. CIJI P. JOSE (2015 (1) KHC 232) Exhibit P8TRUE COPY OF RULING OF THIS HON'BLE COURT THUS REPORTED AS BIPIN PAVITHRAN V. AND ANOTHER V. STATE OF KERALA AND OTHERS (2021 (2) KHC 515) Exhibit P9TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED 10.11.2021 IN WA NO.1358/2021 AND CONNECTED APPEALS Exhibit P10TRUE COPY OF JUDGMENT DATED 01.12.2021 IN W.P.(C).NO.16158/2021 OF THIS HON'BLE COURT Exhibit P11TRUE COPY OF JUDGMENT DATED 02.06.2022 IN W.P.(C).NO. 5716/2022 OF THIS ``` WP(C).Nos.10753 & 11984 of 2023 **11** ``` HON'BLE COURT Exhibit P12TRUE COPY OF RULING IN MANAGER, P.K. HIGH SCHOOL AND OTHERS V. STATE OF KERALA AND OTHERS (2011 (4) KHC 179) OF THIS HON'BLE COURT ``` WP(C).Nos.10753 & 11984 of 2023 **12** ## **`APPENDIX OF WP(C) 11984/2023`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF ORDER BEARING NO.22/2020 DATED 30.06.2020, THUS ISSUED BY RESPONDENT NO.5.` - `Exhibit P2 TRUE COPY OF ORDER BEARING NO.B3/17995/2020 DATED 18.11.2020 THUS PASSED BY RESPONDENT NO.4` - `Exhibit P3 TRUE COPY OF ORDER BEARING NO.B2/213467/2021 DATED 16.03.2022 THUS PASSED BY RESPONDENT NO.3` - `Exhibit P4 TRUE COPY OF ORDER PASSED BY RESPONDENT NO.2 IN REVISION BEARING` - `NO.EC1/237389/2022/DGE/K.DIS DATED 09.02.2023` - `Exhibit P5 TRUE COPY OF ORDER BEARING NO.B3/129473/2022 DATED 30.03.2023 THUS PASSED BY RESPONDENT NO.4` - `Exhibit P6 TRUE COPY OF RULING OF THIS HON'BLE COURT THUS REPORTED AS CIJI P. JOSE V. STATE OF KERALA (2012 (1) KLT 867)` - `Exhibit P7 TRUE COPY OF RULING OF THIS HON'BLE COURT IN STATE OF KERALA V. CIJI P. JOSE (2015 (1) KHC 232)` - `Exhibit P8 TRUE COPY OF RULING OF THIS HON'BLE COURT THUS REPORTED AS BIPIN PAVITHRAN V. AND ANOTHER V. STATE OF KERALA AND OTHERS (2021 (2) KHC 515)` - `Exhibit P9 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED 10.11.2021 IN WA NO.1358/2021` - `Exhibit P10 TRUE COPY OF JUDGMENT DATED 01.12.2021 IN W.P.(C).NO.16158/2021 OF THIS HON'BLE COURT` - `Exhibit P11 TRUE COPY OF JUDGMENT DATED 02.06.2022 IN W.P.(C).NO. 5716/2022 OF THIS HON'BLE COURT` - `Exhibit P12 TRUE COPY OF RULING IN MANAGER, P.K. HIGH SCHOOL AND OTHERS V. STATE OF KERALA AND OTHERS (2011 (4) KHC 179) OF THIS HON'BLE COURT`