Karthik K vs The State Of Kerala
2021 Latest Caselaw 4644 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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

                           WP(C).No.41575 OF 2018(V)


PETITIONER:

                 KARTHIK K.
                 AGED 26 YEARS
                 OFFICE ATTENDANT, SARASWATHI VILASAM UP SCHOOL, EDAMUTTAM,
                 THRISSUR.

                 BY ADVS.
                 SHRI.K.B.GANGESH
                 SMT.SMITHA CHATHANARAMBATH
                 SMT.ATHIRA A.MENON
                 SRI.AMAL S KUMAR
                 SMT. FARHA BEEGUM K.M.

RESPONDENTS:

       1         THE STATE OF KERALA
                 REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION
                 DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

       2         THE DISTRICT EDUCATIONAL OFFICER,
                 CHAVAKKAD, THRISSUR DISTRICT-680506.

       3         THE ASSISTANT EDUCATIONAL OFFICER,
                 VALAPPAD, THRISSUR DIST-680567.

       4         THE MANAGER,
                 SARASWATHI VILASAM UP SCHOOL, EDAMUTTAM, THRISSUR-680568


OTHER PRESENT:

                 SR.GP - P.M. MANOJ

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.41575 OF 2018(V)

                                   2




                            JUDGMENT

The petitioner says that he was appointed as an Office

Assistant in "Saraswathi Vilasam UP School", Thrissur with effect

from 01.04.2016, against a retirement vacancy; but that approval

to such appointment was declined by the Educational Authorities

through Exts.P2, P4 and P7 orders, alleging that the School was

"uneconomic". The petitioner says that this reason is untenable in

law, since the provisions of Rule 1 of Chapter XXIVA of the Kerala

Education Rules (KER), makes it mandatory that every Upper

Primary School should have a post of Peon, which provision has

been adopted in the subsequent chapter, namely Chapter XXIVB

of the KER. The petitioner asserts that, in any event of the matter,

appointment of non teaching staff does not depend upon the

strength of the students and therefore, that it is immaterial

whether the School is "uneconomic" or otherwise, while granting

approval to his appointment. He, therefore, prays that Exts.P2, P4

and P7 be set aside and the competent Educational Authorities be

directed to grant approval to his appointment.

2. In response to the afore submissions of the petitioner

as argued by his learned counsel, Sri.K.B.Gangesh, the learned WP(C).No.41575 OF 2018(V)

Senior Government Pleader, Sri.P.M.Manoj, submitted that the

Educational Authorities do not have a case that there can be no

Peon in an Upper Primary School, which is "uneconomic". He

submitted that the decision taken by the Government is that such

vacancy shall be filled up only on daily wages and not on a

substantive basis. He, therefore, prays that this writ petition be

dismissed.

3. When I consider the afore submissions, it is without

doubt that, going by Rule 1 of Chapter XXIVA of the KER, every

Upper Primary School shall have the post of a Peon. This

provision had been adopted by Chapter XXIVB of the KER, which

was enacted subsequently.

4. Therefore, there cannot be any doubt that an Upper

Primary School must have a Peon and therefore, the corollary

issue is whether this can be filled up only on daily wages, when

the School is construed to be "uneconomic" by the Government.

5. When I examine the provisions of Rule 1 Chapter

XXIVA of the KER, the vacancy of a Peon in an Upper Primary

School is mandatory. The provisions of Rule 1 Chapter XXIVA

have been adopted in Chapter XXIVB and therefore, as matters WP(C).No.41575 OF 2018(V)

now stand, this applies to the Upper Primary Schools also.

6. Obviously, therefore, when it is mandated by the KER

that non-teaching establishment of an Upper Primary School shall

be one Peon, it is impermissible for the Government to have said

that in an "uneconomic school", this cannot be granted because

the provisions of Chapter XXIVA or Chapter XXIVB of the KER do

not make any distinction between "economic" and "uneconomic"

schools.

7. The afore distinction has been created by the

Government through their orders, but cannot, in any manner,

attenuate or effect the statutory provisions, which have yet not

been amended.

In the afore circumstances, I, cannot find favour with the

reasons stated in the impugned order in this writ petition and am

of the view that Government must reconsider the matter taking

note of my observations and the provisions of Chapter XXIVA of

the KER.

Resultantly, I set aside Ext.P7 and direct the competent

Authority of the Government to reconsider the proposal for

approval of the petitioner, in terms of law, implicitly adhering to WP(C).No.41575 OF 2018(V)

the provisions of Rule 1 Chapter XXIVA of the KER and after

affording an opportunity of being heard to the petitioner, as also

the Manager of the School-either physically or through video

conferencing-thus culminating in an appropriate order thereon, as

expeditiously as is possible but not later than two months from

the date of receipt of a copy of this judgment.

This writ petition is thus ordered.

SD/-

                                          DEVAN RAMACHANDRAN

rp                                                     JUDGE
 WP(C).No.41575 OF 2018(V)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE

PETITIONER BY THE 4TH RESPONDENT ON 1.4.2018.

EXHIBIT P2 TRUE COPY OF ORDER NO.C-936/16/L.DIS DATED 11.11.2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF APPEAL DATED 21.11.2016 PREFERRED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF ORDER NO.B1/8759/16/K DIS, DATED 03.2.2017 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF REVISION PETITION PREFERRED BY THE 4TH RESPLENDENT DATED22.3.3017 TO THE 1ST RESPONDENT.

EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 31.5.2017 IN WP(C)NO,15148/2017

EXHIBIT P7 TRUE COPY OF THE ORDER GO(RT) NO.1726/2018/G.EDN DATED 08.5.2018 ISSUED BY THE 1ST RESPONDENT REJECTING THE EXT.P5 REVISION PETITION.