Habeeb Ali.P vs State Of Kerala
2021 Latest Caselaw 15890 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                        WP(C) NO. 7691 OF 2019
PETITIONER:

            HABEEB ALI.P
            AGED 31 YEARS
            S/O.USSAN, PULIKKAL HOUSE, PANNICODE, MUKKAM P.O,
            KOZHIKODE-673 602, FORMER L.D. CLERK,
            P.T.M. HIGH SCHOOL, KODIYATHOOR.

            BY ADV. M.A.FAYAZ



RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY SECRETARY TO GOVERNMENT,
            GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM-695 001

    2       DIRECTOR OF PUBLIC INSTRUCTIONS
            THIRUVANANTHAPURAM-695 014

    3       DEPUTY DIRECTOR OF EDUCATION,
            KOZHIKODE-673 020

    4       DEPUTY DIRECTOR OF EDUCATION.
            DOWN HILL, MALAPPURAM-676 519

    5       DISTRICT EDUCATIONAL OFFICER
            THAMARASSERY, KOZHIKODE DISTRICT-673 573

    6       DISTRICT EDUCATIONAL OFFICER
            MALAPPURAM-676 505

    7       CORPORATE MANAGER
            ERANADU MUSLIM EDUCATIONAL ASSOCIATION,
            KONDOTTY P.O, MALAPPURAM-673 638

    8       ABDUL RASHEED
            FULL TIME MENIAL, EMEA HIGHER SECONDARY SCHOOL,
            KONDOTTY, MALAPPURAM-673 638
 WP(C) NO. 7691 OF 2019
                                   2

    9       P.G. MOHAMMED
            HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE),
            PTM HIGHER SECONDARY SCHOOL, KODIYATHOOR,
            KOZHIKODE-673 602

    10      SHARREFUDHEEN E
            HIGH SCHOOL ASSISTANT, (SOCIAL SCIENCE),
            PTM HIGH SCHOOL, KODIYATHOOR, KOZHIKODE-673 602

    11      SUHAIBA
            HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE),
            EMEA HIGHER SECONDARY SCHOOL, KONDOTTY,
            MALAPPURAM-673 638

    12      REGIONAL DEPUTY DIRECTOR OF EDUCATION
            MALAPPURAM, CIVIL STATION,
            MALAPPURAM, PIN-676 505

    13      REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
            EDUCATION,
            OFFICE OF THE DEPUTY DIRECTOR OF HIGHER
            SECONDARY EDUCATION, KOZHIKODE, PIN-673 000.

    14      DIRECTOR OF HIGHER SECONDARY EDUCATION
            HOUSING BOARD BUILDINGS,
            THIRUVANANTHAPURAM-695 001

            BY ADVS.


            DR.GEORGE ABRAHAM
            SRI. V.VENUGOPAL - GP




     THIS    WRIT      PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION    ON   02.08.2021,     THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 7691 OF 2019
                                  3


                             JUDGMENT

The petitioner says that he had worked in the services of "PTM

Higher Secondary School," Kodiyathoor, Kozhikode, during the

period from 01.12.2011 to 30.09.2013 and thus became entitled to a

right under Rule 51A Chapter XIVA of the Kerala Education Rules

(KER). He submits that, however, even though the management of

the School also owned another School by name "EMEA Higher

Secondary School," Kondotty, he was not given appointment to the

vacancies that arose in either of the said Schools. He points out

that there was a vacancy in the School at Kondotty with effect from

13.01.2016, to which the management appointed a person by name

Sri.Abdul Rasheed, but that said appointment had been rejected by

the competent educational Authorities finding that the appointee

was overaged. The petitioner thus prays that the corporate

Management of the Schools be directed to appoint him, with effect

from 13.01.2016, to the available vacancy and for a consequential

direction to the official respondents to approve him from that date.

2. I have heard Sri.M.A.Fayaz, learned counsel appearing

for the petitioner; Dr.George Abraham, learned counsel appearing

for the Corporate Management and the learned Government WP(C) NO. 7691 OF 2019

Pleader Sri.V.Venugopal appearing for the official respondents.

3. Dr.George Abraham, on behalf of the Corporate

Management, refuted the submissions of the petitioner saying that,

on 13.01.2016, the above mentioned Schools were independent

units, though under the same Corporate Management. He

explained that the Management initially owned only the School at

Kondotty and that they acquired the Kodiyathoor School

subsequently; but, on their application, both these Schools were

permitted to be maintained as independent units as is evident from

Ext.R9(b) dated 11.04.1988. He added that it is subsequently in the

year 2017, through Ext.R9(e) proceedings dated 17.10.2017, that

the schools, on the application of the management, were permitted

to be treated as one, with the office of the Corporate Manager taking

effect from 12.05.2017.

4. After submitting as afore, Dr.George Abraham admitted

that if there had arisen any vacancy in either of the Schools after

17.10.2017, the Management was bound to appoint the petitioner to

the same, reckoning his uncontested claim under Rule 51A Chapter

XIVA of the KER. He concluded his submissions, asserting that the

petitioner, therefore, cannot be heard to claim that should have WP(C) NO. 7691 OF 2019

been appointed with effect from 13.01.2016 in the Kondotty School

which, as said above, was until then, an independent unit.

5. In reply, Sri.M.A.Fayaz, pointed out that even when the

Management asserts that two Schools were kept as independent

units, Ext.P2 order had been issued on 03.02.2018, wherein, it has

been clearly recorded that a particular individual mentioned therein

had been earlier transferred from one School to the other and later

retransferred. He, therefore, vehemently asserted that the

argument, that the Schools were independent units, is only a facade

and that in practice they were always being treated as one single

unit.

6. I have considered the afore rival submissions and have

also gone through the materials available on record.

7. I am afraid that I cannot find favour with the submissions

of Sri.M.A.Fayaz, that the Schools should be construed as being

one unit even prior to the year 2017, solely based on Ext.P2,

because it is recorded therein that transfer of the person mentioned

in it was through an "inter-management" transfer. If the Schools had

been treated as one unit, then obviously, the words used would not

have been 'inter-management' but 'intra-management' transfer. WP(C) NO. 7691 OF 2019

8. That apart, as rightly stated by Dr.George Abraham,

Ext.R9(b) clearly orders that two Schools in question be maintained

as independent units; and it was only thereafter, through Ext.R9(e)

order dated 17.10.2017, they were integrated as one, with a

Corporate Manager being approved with effect from 12.05.2017.

9. I am, therefore, of the firm view that any vacancy that

arose in the School subsequent to 12.05.2017 should be offered to

the petitioner. When I say this, am fully cognizant of the

submissions of Dr.George Abraham, that Ext.R9(e) order being

dated 17.10.2017, petitioner may be given this benefit only from

that date. However, I do not propose to accept this because said

order makes it clear that the Schools became one unit with effect

from 12.05.2017.

10. That having been said, as regards the vacancy which

arose on 13.01.2016 in the Kondotty School, it is conceded that 8 th

respondent was initially appointed. However, through Ext.R9(j)

order dated 20.02.2017, approval to the same was rejected holding

that he was overaged and I am told by Dr.George Abraham, that

even though 8th respondent had preferred an appeal against the

said order, he did not pursue it and left the employment a year later. WP(C) NO. 7691 OF 2019

I am resultantly left without doubt that the vacancy in question must

certainly be offered to the petitioner with effect from 12.05.2017,

because appointment of the 8th respondent against the same, as of

now, has not found favour with the competent Educational Authority.

11. At this time, Dr.George Abraham interjected to say that

even if his client is to offer the vacancy which arose on 13.01.2016

to the petitioner after 12.05.2017, he may not be able to enjoy the

same, because said vacancy was abolished during the academic

year 2018-19, as is evident from Ext.R9(i) staff fixation order.

12. I do not propose to speak on this affirmatively because

this Court is now only called upon to answer whether petitioner was

entitled to be considered for appointment in the vacancy which

arose on 13.01.2016 in the Kondotty School. As I have already

found above, though the petitioner is certainly entitled to be

considered for the said vacancy, his appointment cannot go earlier

than 12.05.2017, when the Schools became one single unit.

Further, even if he is to be considered for appointment with effect

from 12.05.2017, I am of the view that he can be only given notional

appointment until 17.10.2017, when Ext.R9(e) order was issued,

clubbing the Schools as one unit.

WP(C) NO. 7691 OF 2019

Resultantly, I order this Writ petition and direct the 2nd

respondent - Director of General Education, Thiruvananthapuram, to

consider the claim of the petitioner for appointment with effect from

12.05.2017 in the vacancy available in "EMEA HS School,"

Kondotty, Malappuram from 13.01.2016. If the said vacancy is

found eligible to be granted to the petitioner, then the Authority will

also consider granting him approval for the same; however,

notionally with effect from 12.05.2017 till 17.10.17 and substantively

thereafter, until the time the vacancy is available. Should the

authority find that this vacancy stood abolished in the academic year

2018-19, as stated by Dr.George Abrham, then he will also verify

whether any further vacancies had arisen either of the Schools, to

which the petitioner can be appointed; and if so, necessary orders

for the same shall also be issued.

The afore exercise, shall be completed by the 2nd respondent -

Director of General Education, Thiruvananthapuram after affording

an opportunity of being heard to the petitioner and to the Corporate

Manager of the Schools - either physically or through video

conferencing - thus culminating in an appropriate order thereon, as

expeditiously as possible but not later than three months from the WP(C) NO. 7691 OF 2019

date of receipt of a copy of this judgment.

Needless to say, all eligible benefits of the petitioner,

consequent to the afore exercise, shall also be made available to

him without any avoidable delay thereafter.

Sd/-

DEVAN RAMACHANDRAN JUDGE scs WP(C) NO. 7691 OF 2019

APPENDIX OF WP(C) 7691/2019

PETITIONER EXHIBITS

EXHIBIT P1 PHOTOCOPY OF THE ORDER NO.

EM(2)/70910/17/DPI/K.DIS DATED 17.10.2017 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 PHOTOCOPY OF THE ORDER NO EM(3)/92847/2017/DPI/K.DIS DTD 03.02.2018 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P3 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER ALONG WITH THE ENDORSEMENT OF APPROVAL BY THE DEO KOZHIKODE.

EXHIBIT P4 PHOTOCOPY OF THE ORDER NO. B1-

24572/16/K.DIS DTD. 23.09.2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5         PHOTOCOPY OF THE G.O(RT) NO.
                   989/2018/G.EDN. DATED 07.03.2018

EXHIBIT P6         PHOTOCOPY OF THE AMENDMENT VIDE BY THE
                   SRO NO. 734/2016 DATED 03.12.2016

EXHIBIT P7         PHOTOCOPY OF THE COMMON JUDGMENTS IN
                   W.P.(C) NO. 9649/2018 AND 12016/2018
                   DATED 12.09.2018

EXHIBIT P8         PHOTOCOPY OF THE REQUEST SUBMITTED BY
                   THE PETITIONER DATED 10.01.2019

EXHIBIT P9         PHOTOCOPY OF THE LAWYER NOTICE ISSUED TO
                   THE 7TH RESPONDENT DATED 12.02.2019

EXHIBIT P10        PHOTOCOPY OF G.O.(MS)NO.141/88/G.EDN
                   DATED 13.09.1988

EXHIBIT P11        PHOTOCOPY OF THE RELEVANT EXTRACT OF

NOTIFICATION ISSUED BY THE PUBLIC SERVICE COMMISSION FOR CATEGORY NO.508/2019 WP(C) NO. 7691 OF 2019

PUBLISHED IN THE GAZETTE DATED 31.12.2019

RESPONDENT EXHIBITS

EXHIBIT R-9(A) TRUE COPY OF THE ORDER DATED 17.10.2017 GRANTED AS CORPORATE EDUCATIONAL AGENCY

EXHIBIT R-9B TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF THE PUBLIC INSTRUCTIONS, KERALA DATED 11.4.1988

EXHIBIT R9-C TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF THE PUBLIC INSTRUCTIONS DATED 16.09.2017

EXHIBIT R9-D TRUE COPY OF THE REQUEST MADE BY THE SECRETARY, ERANAD MUSLIM EDUCATIONAL ASSOCIATION DATED 4.8.2017

EXHIBIT R9-E TRUE COPY OF THE PROCEEDINGS OF THE DPI DATED 17.10.2017

EXHIBIT R9-F TRUE COPY OF THE FIRST TWO PAGES OF SERVICE BOOK OF THE PETITIONER

Exhibit R9 G TRUE COPY OF THE STAFF FIXATION ORDER DATED 18/12/2017 FOR THE ACADEMIC YEAR 2016-17

Exhibit R9 H TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2017-18 DATED 12/7/2017

Exhibit R 9I TRUE COY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2018-19 DATED 10/7/2018

Exhibit R9 J REJECTION ORDER DATED 20/02/2017 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER.