W.P.(C). Nos.36175 of 2010 & 28427 of 2011

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 ``` ## **`WP(C) NO. 36175 OF 2010`** ## **`PETITIONER:`** ``` M.S.SHERIFF, CLERK, HIGHER SECONDARY SCHOOL FOR BOYS, PUNALUR-691 331. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.` - `2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, TRIVANDRUM-695 001.` - `3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, TRIVANDRUM-695 001.` - `4 THE DISTRICT EDUCATIONAL OFFICER PUNALUR-691 331.` - `5 THE MANAGER, HIGHER SECONDARY SCHOOL FOR BOYS, PUNALUR-691 331. BY ADV SRI.MANOJ RAMASWAMY 0 SRI. C.N. PRABHAKARAN SR.GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, ALONG WITH WP(C).28427/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.36175/2010 & 28427/2011 **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022/11TH KARTHIKA, 1944 WP(C) NO. 28427 OF 2011 ``` ## **`PETITIONER:`** ``` BOY'S HIGHER SECONDARY SCHOOL PUNALUR,REPRESENTED BY THE SCHOOL MANAGER,, PATHANAPURAM TALUK SAMAJAM CORPORATE,, MANAGEMENT SCHOOLS,BHSS BUILDING, VALACODU PO,, PUNALUR. ``` ``` BY ADV SRI.MANOJ RAMASWAMY ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.` - `2 DIRECTOR OF PUBLIC INSTRUCTIONS DPI OFFICE, THIRUVANANTHAPURAM-695001` - `3 THE DISTRICT EDUCATIONAL OFFICER O/O.DISTRICT EDUCATIONAL OFFICER,, PUNALUR PO, PUNALUR 691 305. BY ADV.C.N.PRABHAKARAN, SR.GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON02.11.2022,ALONGWITH WP(C).36175/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.36175/2010 & 28427/2011 **3** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).Nos.36175 of 2010 & 28427 of 2011 ---------------------------------------------Dated this the 02[nd] day of November, 2022** ## **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.36175/2010 first. Petitioner was an approved Clerk in the High School in the Higher Secondary School for Boys, Punalur since 29.07.1981. The Manager appointed the petitioner, who has been the approved Clerk in the High School Section, as Clerk in the Higher Secondary School from 02.11.2009. Ext.P1 is the order. Approval to Ext.P1 was rejected by the 3[rd] respondent, as evident by Ext.P2. The petitioner was not paid salary for the post of Clerk in the Higher Secondary Section. Claiming salary in the lower category, the petitioner filed an application as evident by Ext.P3. The Government issued orders for payment WP(C).Nos.36175/2010 & 28427/2011 **4** of salary to promotee at the lower post as an interim measure. Exts.P4 and P5 are the orders. Regarding the creation of posts in the aided Higher Secondary School, this Court issued Ext.P6 and other orders. Challenging Ext.P2, the petitioner filed W.P. (C). No.35467/2009 before this Court. The petitioner also prayed for salary in the lower post pending the case. This Court, as per Ext.P7 order, directed the payment of salary attached to the lower post of the petitioner. For non-compliance of the said order, the petitioner even filed contempt of court case. In the meanwhile there occurred a management change and without considering the rules in force, the new Manager ordered to cancel the promotion of the petitioner as per Ext.P8. Hence this writ petition is filed. 3. When this writ petition came up for consideration 03.12.2010, this Court passed the following order: “Urgent notice on admission. GP takes notice for R1 to R3. Urgent notice to R4 & R5. The petitioner shall serve additional copies of the writ petition to the GP. There will be an interim stay of Ext.P8, in so far as it relates to the petitioner for a period of two months.” WP(C).Nos.36175/2010 & 28427/2011 **5** 4. Subsequently on 07.02.2011, the interim order was extended until further orders. This writ petition is filed with following prayers: - i. Call for the records relating to Exhibit P-8 and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order. - ii. Issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to permit the Petitioner to continue in Higher Secondary School Section of the School during the pendency of the challenge against Exhibit P-2. - iii. Pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case. ## (SIC) ## 5. W.P.(C). No.28427/2011 is filed by the Manager of the school with following orders: - i. Declare that Exhibit P4 interim order do not stand in the way of the approval of appointment of Sri.T.Monachan, Smt.Ajitha, Sri.Anil, Sri.K.Rajesh in their respective posts in the petitioner school. - ii. A writ of mandamus or other appropriate writ, order or direction directing the 3[rd] respondent to approve the appointment of Sri.T.Monachan, Smt.Ajitha, Sri.Anil, Sri.K.Rajesh in respective posts as per Exhibit P2. WP(C).Nos.36175/2010 & 28427/2011 **6** - iii. A writ of mandamus or other appropriate writ, order or direction directing the 3[rd] respondent to consider and pass orders on Exhibit P3, after affording an opportunity for being heard to the petitioner, within a time frame as fixed by this Hon'ble Court. - iv. Any other further relief or order as this Hon'ble Court may deem fit and proper to meet the ends of justice. - v. Award the cost of these proceedings. **==> picture [38 x 13] intentionally omitted <==** 6. Heard the learned counsel for the petitioner and the learned Government Pleader. 7. In similar circumstances, this Court disposed of other writ petitions as per judgment dated 20.10.2022 in W.P. (C). Nos.25183 and 25389 of 2010. It will be better to extract the relevant portion of the judgment: “6. The counsel for the petitioners reiterated the contentions. The counsel for the petitioner also relied on the Division Bench judgment of this Court in WA No.745 of 2018 and connected cases, in which this Court already directed the authorities to see that the post of clerk in the higher secondary section is created and approved by the authority. The counsel submitted a similar order may be passed in this case also. WP(C).Nos.36175/2010 & 28427/2011 **7** 7. When WP(C) No.25389 of 2010 came up for consideration on 18.08.2010, this Court passed the following order: “Admit. Urgent notice, The petitioners seek for a direction for payment of salary to the 2nd petitioner in the post of clerk in the High School. Learned Government Pleader pointed out that in the High School a substitute has been posted already. But it is seen that there is no approval of the substitute in the High School so far. Therefore, subject to further directions to be issued in this writ petition, there will be a direction to the respondents to pay salary to the second petitioner in the post of clerk in the High School, subject to the condition that in the event the writ petition is dismissed, the 2nd petitioner will have to refund the same.” Similarly, in WP(C) No.25183 of 2010 an interim order was passed by this Court on 15.09.2010 and the same is also extracted here: “Admit. Issue urgent notice. It is pointed out that in similar circumstances, interim orders were granted to the petitioners in WP(C) Nos. 35467/2009 and 25389/2010. In the facts and circumstances, there will be an interim order as prayed for.” 8. The 2[nd] petitioner in WP(C) No.25389 of 2010 and the petitioner in WP(C) No.25183 of 2010 WP(C).Nos.36175/2010 & 28427/2011 **8** continued in the post of clerk at higher secondary section and accepted the salary for the post of clerk in the high school section, subject to the result of these writ petitions. Now it is submitted that the 2[nd] petitioner in WP(C) No.25389 of 2010 and the petitioner in WP(C) No.25183 of 2010 are retired from service. What remains is only the payment of salary to them treating them as the clerk appointed in the higher secondary section. Since in the similar circumstances, this Court issued directions to the Government and the Department to do the needful, I think the same direction can be issued in these cases also. I am forced to pass such an order, because admittedly, the aggrieved persons continued as clerk in the higher secondary section and they obtained only the salary and benefits as clerk in the high school section. Since the aggrieved persons already continued in the post of clerk in the higher secondary section and as per rules, the post of clerk is there, it is the duty of the Government to sanction the post and approve the appointment of the persons in the higher secondary section. The petitioners in these writ petitions are free to file a representation narrating the above grievances, within a time frame, and there can be direction to the Government to consider the same and pass appropriate orders and disburse the benefits due to the aggrieved parties, within a time frame. The grievance of the 3[rd] petitioner is that he was appointed as clerk in the WP(C).Nos.36175/2010 & 28427/2011 **9** high school section in the resultant vacancy of the 2[nd] petitioner, who was appointed in the higher secondary section. He was appointed as clerk on 01.06.2010. He is also free to file representation to accommodate him in the resultant vacancy, based on the decision of the Government. Therefore, these writ petitions are disposed of in the following manner: 1. The petitioners in these writ petitions are free to file a representation narrating the above grievances, before the 1st respondent, within three weeks from the date of receipt of a copy of judgment. 2. Once, such a representation is received, the 1st respondent will consider the same, in the light of the observations in this judgment, and pass appropriate orders in it, after giving an opportunity of hearing to the petitioners, as expeditiously as possible, at any rate, within three months from the date of receipt of the representation. 3. Based on the above order, the respondents will disburse the benefits to the petitioners, forthwith. ” I think similar order can be passed in these writ petitions also. Therefore, these writ petitions are disposed of in the following manner: 1. The petitioner in W.P.(C). No.36175/2010 is free to submit a representation before WP(C).Nos.36175/2010 & 28427/2011 **10** the 1[st] respondent narrating his grievance raised in this writ petition within three weeks from the date of receipt of a copy of this judgment. 2. Once such a representation is received, the 1[st] respondent will consider the same in the light of the observation in this judgment and the judgment dated 20.10.2022 in W.P.(C). Nos.25183 and 25389 of 2010 and pass appropriate orders in it, after affording an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of the representation. 3. The petitioner in W.P.(C). No.28427/2011 is free to submit a representation before the 1[st] respondent narrating the grievance raised in this writ petition within one month from the date of receipt of a copy of this judgment. WP(C).Nos.36175/2010 & 28427/2011 **11** 4. Once such a representation is received, the 1[st] respondent will consider the same and pass appropriate orders in it, after affording an opportunity of hearing to the petitioner and other affected parties, as expeditiously as possible, at any rate, within three months from the date of receipt of the representation. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).Nos.36175/2010 & 28427/2011 **12** ## **`APPENDIX OF WP(C) 28427/2011`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER NO.TRO/5/5233/09/HSE DATED 04.11.2009. Exhibit P2TRUE COPY OF THE PROCEEDINGS ORDER NO.PTSS 28/10 DATED 29.11.2010. Exhibit P3TRUE COPY OF THE LETTER NO.33/10 DATED 30.11.2010. Exhibit P4TRUE COPY OF THE ORDER DATED 03.12.2010 IN WP(C) NO.36175 OF 2010. ``` WP(C).Nos.36175/2010 & 28427/2011 **13** ## **`APPENDIX OF WP(C) 36175/2010`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 2ND PETITIONER. Exhibit P2TRUE COPY OF THE ORDER NO.TRO/5/5233/09/HSE OF THE 3RD RESPONDENT. Exhibit P3TRUE COPY OF THE APPLICATION FILED BY THE MANAGER. Exhibit P4TRUE COPY OF THE CIRCULAR NO.23323/J1/89/G.EDN. OF THE GOVERNMENT. Exhibit P5TRUE COPY OF THE CIRCULAR NO.ACD.A1/4250/HSE/98 OF THE GOVERNMENT. Exhibit P6TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT WPC. NO.12030/2008 P Exhibit P7TRUE COPY OF INTERIM ORDER OF THIS HONOURABLE COURT IN WPC NO.35467/2009 C. Exhibit P8TRUE COPY OF THE ORDER OF THE MANAGER. ```