R.G. Anooop vs The State Of Kerala
2021 Latest Caselaw 16562 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                      WP(C) NO. 24377 OF 2013
PETITIONER:

           R.G. ANOOOP
           AGED 31 YEARS
           S/O. V.RAJENDRAN PILLAI, UPPER PRIMARY SCHOOL
           ASSISTANT (RELIEVED), ESWARA VILASAM HIGHER
           SECONDARY SCHOOL, NADUVATHUR, KOTTARAKKARA(RESIDING
           AT NARAYANA MANDIRAM), GANDHI JUNCTION,
           KOTTARAKKARA-691 506).

          BY ADVS.
          SRI.V.A.MUHAMMED
          SRI.M.SAJJAD
          SMT.P.A.JENZIA



RESPONDENTS:

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

     2       THE DIRECTOR OF PUBLIC INSTRUCTION
             JAGATHY, THIRUVANANTHAPURAM-695 014.

     3       THE DISTRICT EDUCATIONAL OFFICER
             KOTTARAKKARA, KOLLAM DISTRICT-691 506.

     4       THE MANAGER
             ESWARA VILASAM HIGHER SECONDARY SCHOOL,
             NADUVATHUR, KOTTARAKKARA-691 506, KOLLAM
             DISTRICT.



          SRI.V.VENUGOPAL-G.P


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   11.08.2021,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 24377 OF 2013          2

                            JUDGMENT

The petitioner says that he was appointed as an

Upper Primary School Assistant (UPSA) in the

services of the "Easwara Vilasam Higher Secondary

School", Naduvathur, Kollam, with effect from

22.06.2004 and that his appointment was duly

approved. He says that during the academic year

2007-2008, eight posts of UPSAs were eligible to the

School, adopting the teacher-student ratio 1:40; but

that since the number of students were lower, the

jurisdictional District Educational Officer (DEO)

sanctioned only six posts.

2. The petitioner asserts that there were three

regular vacancies of High School Assistants in core

subjects in the High School section of the School

and that a UPSA by name Sri.Shine, was so promoted

with effect from 01.06.2008. The petitioner

maintains that he was thus appointed by the Manager

to the resultant vacancy as a UPSA, but that when

the proposal for approval of his appointment was

made before the competent Authority, it was rejected

solely saying that there were not sufficient

documents to show that he had been so appointed.

3. The petitioner says that when he challenged

these orders before the Government, Ext.P4 was

issued reiterating that there was no document

available on record to establish that the Manager

had appointed him with effect from 15.07.2008. The

petitioner states that the contents Ext.P4 are

grossly incorrect because it is admitted that there

was a vacancy in the year 2008, to which no one has

been appointed until now; and that he has been

working in the said post without any benefits for

the last more than thirteen years.

4. The petitioner, therefore, prays that

Ext.P4 be set aside and the competent Educational

Authority be directed to approve his appointment

with effect from 15.07.2008, within a time frame to

be fixed by this Court; thus leading to all eligible

benefits being disbursed to him.

5. I have heard Smt.P.A.Jenzia, learned Counsel

for the petitioner and Sri.V.Venugopal, learned

Government Pleader appearing for the official

respondents. Even though notice has been validly

served on respondent No.4 - Manager of the School,

he has chosen not to be present before this Court or

to be represented through Counsel, inferentially

guiding me to the impression that he has no

objection to any of the contentions of the

petitioner.

6. The materials and pleadings on record show

that the petitioner and the Manager of the School

assert that the former was entitled to be appointed

with effect from 15.07.2008 in a vacancy caused by

the promotion of a teacher by name Sri.Shine, and

that he was so accommodated. However, the

educational Authorities have rejected the same

saying that the necessary proposal for approval,

along with the appointment order of the petitioner,

has not been submitted before them by the Manager at

any time until now. In fact, it is the same line

that has been adopted by the Government in Ext.P4

also.

7. The learned Government Pleader submitted

that, as has been stated in the counter affidavit

filed by the 2nd respondent, only six posts were

admissible to the School in the academic year 2008-

2009; while eight UPSAs were working there,

including the petitioner. He added that, therefore,

even if the Manager is allowed to submit a proposal

for appointment of the petitioner with effect from

15.07.2008, the competent educational Authorities

may be allowed to consider the same, after verifying

the staff fixation orders of the School. He

concluded his submissions by saying that it has been

specifically stated in Ext.P4 that there was no

vacancy available in the School to accommodate the

petitioner; but conceded that this was because the

Manager had not given promotion to the rival

claimant till 01.04.2009.

8. In reply, Smt.P.A.Jenzia submitted that

there is no case for any of the educational

Authorities, including the Government, that there

was no vacancy available in the School on

15.07.2008, to accommodate the petitioner. She

pointed out that the only reason why her client's

approval has been denied is because the appointment

order and the adjunct papers for approval are not

allegedly available on the files. She added that

even if this is true, then the fault lies with the

Manager because he was obligated to formally issue

an appointment order to her client and to forward

the same, along with the proposal for its approval,

to the competent educational Authorities. She

submitted that the failure to the Manager, if any,

cannot be a reason to hold to the detriment of her

client. She, therefore, reiteratingly prayed that

this writ petition be allowed.

9. I have evaluated the afore submissions and

I find favour with the contention of the petitioner

that in the impugned orders all that the educational

Authorities, including the Government, has said

that her appointment order or the proposal for its

approval, is not available on the files. If this be

so, then certainly it is for the Manager to issue

appropriate order and to forward the same, along

with a valid proposal to the education Authorities

concerned.

10. I, therefore, asked the learned Government

Pleader if the official respondents would stand in

the way of the Manager being directed to do so, to

which, he replied that they would have no objection

from the standpoint of limitation; but that any

consideration of the same may be left to the

Authorities to be made, adverting to their assertion

in the counter affidavit that there were not enough

vacancies to accommodate the petitioner as UPSA on

15.07.2008.

11. When I hear the learned Government Pleader

asserts that there were no vacancies to accommodate

the petitioner, it is indubitable from Ext.P4 that

the 3rd respondent - DEO had reported to the

competent Authority that, in the academic year 2008-

09, a vacancy of HSA was available in the School

and that, had the Manager given promotion to the

three UPSAs, the petitioner could have been

accommodated in one of the resultant vacancies of

UPSA. I, therefore, cannot find favour with this

submission.

12. Taking note of the afore and since it will

not be available to this Court to consider any of

the other rival submissions of the parties on its

merits at this stage, I deem it appropriate to allow

this writ petition to the extent of directing the

Manager to issue an appropriate appointment order to

the petitioner and forward the same, along with a

valid proposal, to the 3rd respondent - District

Educational Officer, within a time frame.

Resultantly, this writ petition is allowed,

directing the 4th respondent - Manager to issue an

appointment order to the petitioner with effect from

15.07.2008 and to forward the same to the 3rd

respondent - DEO, along with the proposal for

approval of the same; which shall be done not later

than one month from the date of receipt of a copy of

this judgment.

On the afore proposal reaching the 3rd

respondent - DEO, he shall hear the petitioner, as

also the Manager and take a decision on the approval

of appointment of the petitioner, adverting to their

contentions, as also to any other inputs that he may

feel is vital to the case at hand.

Needless to say, while the afore exercise is

completed, the 3rd respondent - DEO will

specifically keep in mind the fact that the impugned

orders in this case only refer to the absence of the

appointment order of the petitioner and not to the

contention that there were no vacancy available in

the School on 15.07.2008

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/17.8

APPENDIX OF WP(C) 24377/2013

PETITIONER EXHIBITS

EXHIBIT P1 : COPY OF THE ORDER NO.ET1/44960/10/DPI/K.DIS DTD.3.9.2010 OF THE 2ND RESPONDENT.

EXHIBIT P2 : COPY OF THE REMINDER OF THE PETITIONER DTD.18.6.2012.

EXHIBIT P3 : COPY OF THE JUDGMENT IN WPC NO.24731/2012-N DTD.18.10.2012.

EXHIBIT P4 : COPY OF THE GO(RT)NO.1558/2013/G.EDN. DTD.5.4.2013 OF THE GOVERNMENT.

EXHIBIT P5 : COPY OF THE DECISION REPORTED IN 1993(2) KLT SHORT NOTES 27 CASE NO.28 DTD.2.8.1993.