Likhi N.P vs State Of Kerala
2021 Latest Caselaw 4618 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                       WP(C).No.1925 OF 2021(M)


PETITIONER:

               LIKHI N.P.
               AGED 51 YEARS
               FULL TIME MENIAL, SAHODHARAN MEMORIAL HIGHER
               SECONDARY SCHOOL, CHERIAI,
               ERNAKULAM DISTRICT-683 514.

               BY ADVS.
               SRI.M.A.FAYAZ
               SMT.M.VISHNUPRIYA
               SMT.C.B.ABHINAVA

RESPONDENTS:

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

      2        DIRECTOR GENERAL OF EDUCATION,
               JAGATHY, THIRUVANANTHAPURAM-695 001.

      3        DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM,
               CIVIL STATION, KAKKAND-682 030.

      4        THE DISTRICT EDUCATIONAL OFFICER,
               ERNAKULAM-682 011.

      5        THE MANAGER, SAHODHARAN MEMORIAL HIGHER SECONDARY
               SCHOOL, CHERAI,
               ERNAKULAM DISTRICT-683 514.

      6        THEERTHA,
               FULL TIME MENIAL, SAHODHARAN MEMORIAL HIGHER
               SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT-683 514.


               SR GP NISHA BOSE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1925 OF 2021(M)

                                       2




                                 JUDGMENT

Dated this the 9th day of February 2021

This writ petition is filed seeking the following reliefs:

(i) To issue a Writ of mandamus directing the 5th respondent Manager to appoint the petitioner as FTM w.e.f. 13.07.2020 in the death vacancy of Smt.K.R.Suma.

(ii) To call for the records leading to the issuance of Ext.P7 order of the 5th respondent and set aside the same by declaring it is illegal.

(iii) To declare that in view of the approval of the appointment of the petitioner as FTM vide Ext.P2 and continuous service of 7 years petitioner has become a Rule 51A claimant under Chapter XIV A KER entitled to have preferential claim in future vacancies under the 5th respondent.

(iv) To declare that the petitioner is having a better claim than the 6th respondent for appointment to the post of FTM which arose under the Management w.e.f. 13.07.2020, caused due to the death of the incumbent Smt.K.R.Suma

(v) To restrain the 4th respondent from granting approval of the appointment of the 6th respondent before the Manager shifting the petitioner to the death vacancy of Smt.K.R.Suma and approving her in the said post.

2. Heard the learned counsel for the petitioner and the learned

Government Pleader.

WP(C).No.1925 OF 2021(M)

3. It is submitted by the learned counsel for the petitioner that

the petitioner had been appointed as Full Time Menial (for short

'FTM') in a regular vacancy from 15.06.2002, which had been

approved. It is stated that pursuant to judgment in WP(C) No.28081

of 2006 filed by one Sheeja.T.S, who had been reverted to the post of

FTM, the petitioner came to be retrenched on 01.07.2009. It is stated

that the Manager appointed the petitioner as Office Attendant with

effect from 01.06.2020. A vacancy of FTM arose due to the death of an

incumbent on 13.07.2020. In the said vacancy the petitioner was not

appointed. However, from 24.12.2020 the 6th respondent was

appointed against the said vacancy. It is submitted by the learned

counsel for the petitioner that the claim of the petitioner had been

considered by the Manager and Ext.P8 order had been issued. In the

meanwhile, the petitioner has approached the District Educational

Officer with Ext.P10 objection with regard to the approval of the 6 th

respondent's appointment in the vacancy which arose on 13.07.2020.

4. It is submitted by the learned Government Pleader on

instructions that the objection raised by the petitioner to the 6 th

respondent's appointment has been received by the 4 th respondent WP(C).No.1925 OF 2021(M)

and that the proposal for approval of the appointment of the 6 th

respondent has also been received.

5. In the above view of the matter and in view of the fact that

the petitioner has raised an objection to the approval of the 6 th

respondent's appointment as FTM with effect from 24.12.2020, I am

of the opinion that the objection preferred by the petitioner is liable

to the considered in accordance with law, before any orders are

passed by the 4th respondent on the request for approval of the 6 th

respondent's appointment.

There will, accordingly, be a direction to the 4 th respondent to

take up, consider and pass orders on Ext.P10 objection raised by the

petitioner to the 6th respondent's appointment. The objection, if any,

of the petitioner to Ext.P8, can also be duly raised by the petitioner

before the 4th respondent. The issue with regard to the appointment

of the petitioner in any earlier vacancy of FTM as well as the claim of

the petitioner for appointment against the vacancy to which the 6 th

respondent has been appointed will be considered by the District

Educational Officer and appropriate orders shall be passed thereon

with notice to the parties including the petitioner, the Manger and WP(C).No.1925 OF 2021(M)

the 6th respondent and any other person likely to be affected. Orders

shall be passed within a period of one month from the date of receipt

of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C).No.1925 OF 2021(M)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT MANAGER DATED 24.12.2020.

EXHIBIT P2 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT MANAGER DATED 15.06.2002 CONTAINING THE ENDORSEMENT OF APPROVAL OF APPOINTMENT BY THE 4TH RESPONDENT.

EXHIBIT P3 PHOTOCOPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER.

EXHIBIT P4 PHOTOCOPY OF THE DEATH CERTIFICATE OF SMT.K.R.SUMA DATED 08.08.2020.

EXHIBIT P5 PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 29.05.2020.

EXHIBIT P6 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER AS OFFICE ATTENDANT BY THE MANAGER DATED 01.06.2020.

EXHIBIT P7 PHOTOCOPY OF ORDER NO.B5/17761/2020 DATED 15.09.2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P8 PHOTOCOPY OF THE PROCEEDINGS ISSUED BY THE MANAGER DATED 19.12.2020.

EXHIBIT P9 PHOTOCOPY OF THE REPORT NO.ERCS101279 DATED NIL ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P10 PHOTOCOPY OF OBJECTION SUBMITTED BY THE APPLICANT BEFORE THE 4TH RESPONDENT DATED 04.01.2021

EXHIBIT P11 PHOTOCOPY OF THE RELEVENT EXTRACT FROM THE POSTAL DEPARTMENT EVIDENCING DELIVERY OF EHIBIT P10 06.01.2021