WP(C) NO. 24675 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 24675 OF 2021
PETITIONER/S:
SHAINY P.P.
AGED 38 YEARS
D/O.VELAYUDHAN, NAMBIARTHODI HOUSE,
NEAR M.S.P.HOSPITAL,
MALAPPURAM, MALAPPURAM DISTRICT.
BY ADVS.
BABU S. NAIR
SMITHA BABU
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT, PALAYAM, TRIVANDRUM,
PIN-695001.
2 THE DIRECTOR,
GENERAL EDUCATION DEPARTMENT, JAGATHY,
THIRUVANANTHAPURAM DISTRICT, PIN-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
KOTTAPPADY, DOWN HILL, MALAPPURAM,
MALAPPURAM DISTRICT,PIN-676519.
4 THE DISTRICT EDUCATIONAL OFFICER
B2 BLOCK CIVIL STATION, MALAPPURAM,
MALAPPURAM DISTRICT,PIN-676505.
5 THE MANAGER,
M.S.P.HIGHER SECONDARY SCHOOL,
KOZHIKODE- PALAKKAD HIGHWAY, UP HILL,
MALAPPURAM DISTRICT,PIN-676504.
WP(C) NO. 24675 OF 2021 2
BY ADV ADVOCATE GENERAL OFFICE KERALA
SMT. NISHA BOSE, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 24675 OF 2021 3
JUDGMENT
Being aggrieved by the refusal on the part of the respondents in approving the appointment of the petitioner who worked as UPST (Temporary) and in paying salary to her for the period from 25.06.2018 to 31.12.2018, the petitioner is before this Court with this writ petition.
2. From the records made available before this Court, it appears that the petitioner herein was appointed as UPST (temporary) in the MSP Higher Secondary School, Malappuram, on a daily wage basis as per Ext.P1 order. She worked as such from 25.06.2018 to 31.12.2018. The records reveal that the vacancy had arisen on account of the promotion of a certain Abdul Rasheed, who was promoted as HSA on 18.06.2018. Ext.P2 reveals that the Manager, MSP Higher Secondary school, Malappuram, who is the Commandant of the police has made a proposal to the District Education Officer (DEO) seeking approval of appointment of the petitioner. However, the same was rejected by Ext.P2 order on the ground that as per paragraph 2(iv) of Government Circular No.J2/951951/2016 dated 19/11/2016, a protected teacher has to be appointed in long term vacancy. Though the WP(C) NO. 24675 OF 2021 4 Commandant in his capacity as the Manager preferred an appeal before the Deputy Director of Education, the same was rejected by Ext.P3 order. Later, an appeal was preferred before the Director of General Education (DGE), but the same stands rejected by Ext.P7 order. The petitioner asserts, by referring to Ext.P5, that persons who were similarly placed as the petitioner herein were paid their salary, but the petitioner was discriminated against. It is in the afore circumstances that this writ petition is filed seeking the following reliefs:
i. Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to approve the appointment of the petitioner as UPST and to pay the salary due to petitioner from 25/06/2018 to 31/12/2018.
ii. Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the 4th respondent manager to pay salary to the petitioner under Chapter III Rule 7(4) of the Kerala Education Rules, 1959;
iii. Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.
iv. Call for the entire records leading to Exhibits P2,P3 and P7 and quash the same by the issuance of a writ of certiorari or any other appropriate writs orders or directions;
3. Smt. Smitha Babu, the learned counsel appearing for the petitioner WP(C) NO. 24675 OF 2021 5 submitted that the fact that the petitioner had worked as UPST (Temporary) for the period from 25.6.2018 to 31.12.2018 at the MSP Higher Secondary School and that she was appointed when a promotional vacancy had arisen is undisputed. It is also not disputed that no protected teachers were available to fill the said vacancy. It was in order to protect the interest of the students that the petitioner was appointed to the said vacancy. This fact is evident from Ext.P6 preferred by the Manager, who is a Government servant. Some delay would have occurred in filling up the vacancy by complying with the procedure and that prompted the Manager to appoint the petitioner. It is further submitted that it is undisputed that no salary was paid for the period that the petitioner had worked. Reference is also made to Ext.P6 appeal and it is submitted that teachers similarly placed as the petitioner, who were appointed on a temporary basis, were disbursed with their salary.
4. The learned Government Pleader submitted that the appointment was made against a regular vacancy. The appointment of the petitioner was on a daily wage basis and therefore, the respondents were justified in WP(C) NO. 24675 OF 2021 6 refusing approval.
5. I have considered the submissions advanced and have perused the records.
6. It appears that a promotion vacancy arose in the MSP Higher Secondary School, Malappuram on 25.6.2018 when Sri. Abdul Rasheed was working as UPST was promoted as HSA on 18.6.2018. The Commandant, MSP, Malappuram, who was functioning as the Manager, appointed the petitioner on a daily wage basis. The reason which persuaded him to appoint the petitioner is evident from Ext.P6. As per Circular No. J2/951951/16 dated 19.11.2016, protected teachers ought to have been appointed in the vacancy that had arisen. However, Ext.P6 preferred by the Manager reveals that no protected teachers were available. Furthermore, the Manager has also stated that filling up the vacancy by following the procedure would have entailed some delay. From Ext.P5 it is evident that the DEO had initially refused to grant consent to appoint the petitioner on a daily wage basis which was taken up in appeal and the Deputy Director had reversed the same. It is undisputed that she worked from 25.6.2018 to WP(C) NO. 24675 OF 2021 7 31.12.2018. From Ext.P5 submitted by the DEO before the Human Rights Commission, it appears that insofar as one Muneera Beegam, K.Sreemathi, Shifana.C.K. are concerned, as their appointment was in leave vacancies and for shorter periods, the respondents have granted approval to their appointments. The respondents ought to have noticed that the petitioner is not at fault and it was for the justifiable reason that she was appointed to save the interest of the students by the Manager who was a Government servant, particularly when there were no protected teachers to fill up the vacancy.
7. In that view of the matter, I am unable to sustain Exts.P2, P3 and P7 orders. There will be a direction to the respondents to approve the appointment of the petitioner as UPST and pay salary due to the petitioner for the period from 25.06.2018 to 31.12.2018.
This writ petition will stand disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE NS WP(C) NO. 24675 OF 2021 8 APPENDIX OF WP(C) 24675/2021 PETITIONER(S) EXHIBITS :
Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 27/06/2018.
Exhibit P2 TRUE COPY OF THE ORDER NO.B3/12170/2019 BY DEPUTY EDUCATION OFFICER DATED 03/10/2019.
Exhibit P3 TRUE COPY OF THE ORDER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION DATED,16/01/2021 Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE HUMAN RIGHTS COMMISSION DT.21.4.21.
Exhibit P5 TRUE COPY OF THE REPORT OF THE DISTRICT EDUCATION OFFICER, MALAPPURAM DATED,3.8.2021.
Exhibit P6 TRUE COPY OF THE APPEAL FILED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT DATED 3-
8-2021.
Exhibit P7 TRUE COPY OF THE ORDER NO.EM2/234394/2021 DATED 6-11-2021 OF THE ADDITIONAL DIRECTOR OF GENERAL EDUCATION.
RESPONDENT(S) EXHIBITS : NIL