Rajesh E.P. vs State Of Kerala
2021 Latest Caselaw 5530 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                      WP(C).No.14179 OF 2018(V)


PETITIONER:

               RAJESH E.P., OFFICE ATTENDANT, SAHODARAN
               MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI -
               683 514, ERNAKULAM DISTRICT.

               SRI.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        DISTRICT EDUCATIONAL OFFICER
               ERNAKULAM - 682 011.

      4        CORPORATE MANAGER
               SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL,
               CHERAI - 683 514, ERNAKULAM DISTRICT.

      5        SHEEJA T.S., FULL TIME MENIAL, SAHODARAN
               MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI-683 514,
               ERNAKULAM DISTRICT.

               SRI.P.L.DEVADAS
               SRI.V.A.VINOD
               SRI.P.M.MANOJ - SR.GP.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.14179 OF 2018(V)

                                      2


                                JUDGMENT

Dated this the 16th day of February 2021

The petitioner says that he is presently working as an

Office Attendant (OA) in the services of the 'Sahodharan

Memorial Higher Secondary School', Cherai, which is owned

and managed by the 4th respondent - Corporate Manager.

2. The petitioner says that, originally, the School had

only upto the High School section and that it was later

upgraded as a Higher Secondary School. He says that at the

time when the School had only High School section, there

were two posts of Office Attendants and two posts of Full

Time Menials (FTM) sanctioned; and that after the School was

upgraded as a Higher Secondary School, four posts of Lab

Assistant were added.

3. The petitioner says that he was appointed as a FTM in

the School with effect from 01/03/2001, as is evident from

Ext.P1 and that he was, thereafter, promoted as an Office

Attendant with effect from 01.6.2002, which is clear from

Ext.P3. He asserts that his appointments, both as an FTM and

as an OA, have already been approved, manifest from the WP(C).No.14179 OF 2018(V)

endorsement in Ext.P3 and therefore, that he is entitled to

continue in the latter post uninterruptedly.

4. The petitioner says that, while so the Manager

appointed one of the other Full Time Menials, Smt.Sheeja -

who is the 5th respondent herein, as a Clerk anticipating the

creation of such post on 01/02/2002, but that since the said

post had not been sanctioned subsequently, she was

appointed to one of the available posts of Lab Assistant, when

the School was upgraded as a Higher Secondary School. He

says that, however, this appointment of Smt.Sheeja was

challenged by another person by name Smt.D.Shine by filing

W.P(C)No.28081 of 2006, which was allowed and

consequently that Smt.Sheeja had to be reverted, while

another person by name Smt.N.P.Likhi had to be retrenched.

5. The petitioner submits that it is at this stage that

the controversy began because, instead of reverting

Smt.Sheeja as an FTM - from which post she had been

appointed directly as a Lab Assistant - the Manager

apparently created a proceeding dated 01/07/2009 reverting

Smt.Sheeja as an Office Attendant and himself as a Full Time WP(C).No.14179 OF 2018(V)

Menial. The petitioner says that, however, this proceeding

was never implemented or approved and therefore, that he

continued as an Office Attendant in spite of this. He says that

this is limpid from Ext.P2 proceedings of the Government, in

which the request of Smt.Sheeja for creation of a

supernumerary post of Lab Assistant had been rejected and it

has been recorded therein that she had been reverted as

FTM, while the aforementioned Smt.N.P.Likhi had been

retrenched. The petitioner asserts that, therefore, it is

without doubt that Smt.Sheeja stood reverted as FTM, while

he continued as an Office Attendant in the services of the

School.

6. The petitioner then alleges that, in spite of the above,

the second respondent - Director of Public Instructions (now

redesignated as the Director of General Education) issued

Ext.P6 order dated 14.02.2018 - on Ext.P4 request of the

Manager seeking that Smt.Sheeja be allowed to be

accommodated as an Office Attendant and the petitioner be

reverted as an FTM - allowing the said request and ordering

as prayed for by him. The petitioner contends that Ext.P6 is

egregiously improper, since his approval in the post of OA is WP(C).No.14179 OF 2018(V)

still valid and therefore, that there was no question of him

being reverted to the post of FTM, except in the manner as is

permissible under the provisions of the Kerala Education Act

and Rules (for short 'the Act and the KER'). The petitioner,

therefore, prays that Ext.P6 be set aside and he be allowed to

continue as OA in the school.

7. I have heard Sri.M.A.Fayas, the learned counsel for

the petitioner; Sri.V.A.Vinod, learned counsel appearing for

the 5th respondent; Sri.Devadas, learned counsel appearing

for the Manager and Sri.P.M.Manoj, the learned Senior

Government Pleader.

8. The facts, which have been recorded above

compendiously, would indicate without doubt that the

petitioner was originally appointed as an FTM and promoted

as an OA with effect from 01.06.2002, as is evident from

Ext.P3 order of appointment issued by the Manager. This

order also shows that his promotion has been approved and

that it continues to be in effect even now - it having never

been varied, modified or vacated. Normally, therefore, the

petitioner cannot be reverted from that post, except if he had

been proceeded against under a disciplinary action or such WP(C).No.14179 OF 2018(V)

other, as is permitted under the provisions of the Act and the

KER. Admittedly, this has never been done and no such

occasion has arisen either.

9. The background facts show that when the petitioner

was initially working as an FTM, Smt.Sheeja - who is senior to

him in that category - was promoted as a Clerk by the

Manager anticipating the creation of that post, but when it

never fructified, he appears to have promoted her as a Lab

Assistant when the Higher Secondary division was allowed to

the School. This appointment was, however, challenged by the

aforementioned Smt.D.Shine and when this Court found in

her favour, obviously Smt.Sheeja had to be reverted. Since

Smt.Sheeja had been appointed as a Lab Assistant from the

post of FTM, the Manager should have normally reverted her

to that post and no other.

10. However, instead of doing so, the Manager appears

to have created a proceeding dated 01.07.2009 showing that

Smt.Sheeja had been reverted as an OA; while the petitioner

was reduced to the post of FTM. Apart from the fact that this

could not have been done, at least as far as the petitioner is

concerned, on account of his approval as an OA being still WP(C).No.14179 OF 2018(V)

valid, this proceeding cannot find favour in law also for the

reason that in Ext.P2 order, which was issued by the

Government on 19.03.2013, it is unambiguously recorded in

paragraph 4 thereof that, consequent to the appointment of

Sri.D.Shine as a Lab Assistant, Smt.Sheeja was reverted to

the post of FTM.

11. It is thus becomes irrefutable that the proceedings of

the Manager dated 01.07.2009 had never been implemented

and that he took the position before the Government that

Smt.Sheeja was, in fact, reverted as an FTM.

12. In such circumstances, no further change in the staff

pattern was required, but it appears that the Manager

approached the second respondent with a further request

which was then considered, culminating in Ext.P6 order.

13. Pertinently, the DGE, without even referring to

Ext.P2 order of the Government, has now permitted the

reversion of Smt.Sheeja as an OA and thus consequentially,

the reversion of petitioner as FTM.

14. I am afraid that I cannot find favour with Ext.P6 in

any manner whatsoever, since as I have already said above,

the petitioner continues as an OA based on a valid approval; WP(C).No.14179 OF 2018(V)

while, concededly, Smt.Sheeja was never approved as an OA

at any point of time until now. She was originally appointed

as an FTM - admittedly being senior to the petitioner in that

category - but was appointed as a Clerk and then as a Lab

Assistant in the year 2002. Obviously, when Smt.Sheeja was

thus appointed as a Lab Assistant, without being promoted as

an OA before that, she could have been reverted only to the

post of FTM (the post of Clerk never having been sanctioned

to the school) and not as as OA as has been now sought to be

done by the Manager. This is more so because, it is admitted

before me that Smt.Sheeja never obtained any approval as an

OA and her only approval available is in the category of FTM.

15. The corollary would be that Smt.Sheeja will have to

be now reverted as FTM and the petitioner will have to be

allowed to continue as an OA based on his original order of

approval as OA, reflected in Ext.P3.

16. That said, Sri.Devadas, the learned counsel

appearing for the Manager, today informs this Court that a

certain Smt.Vimala has now retired from the post of OA and

that there is a resultant vacancy, to which either the

petitioner or Smt.Sheeja can be accommodated. I am of the WP(C).No.14179 OF 2018(V)

firm view, therefore, that Smt.Sheeja should now be

accommodated to the post of OA, which has become vacant

resultant to the retirement of Smt.Vimala and this will save

the day for her at least partially.

In the afore circumstances, I order this writ petition and

set aside Ext.P6; with a consequential direction to the

Manager to consider the appointment of Smt.Sheeja to the

vacancy of OA which is now available in the school, subject to

her consent for the same, which shall be done as

expeditiously as is possible.

It is needless to say that the petitioner - Sri.E.P.Rajesh,

will continue as an Office Attendant in the school on the

strength of his original approval to the said post, recorded in

Ext.P3 appointment order.

                                               Sd/- DEVAN RAMACHANDRAN

     Stu                                                JUDGE
 WP(C).No.14179 OF 2018(V)





                               APPENDIX
     PETITIONER'S EXHIBITS:

     EXHIBIT P1       PHOTOCOPY OF THE APPOINTMENT ORDER

APPOINTING THE PETITIONER AS FTM WITH EFFECT FROM 01.03.2001 ALONG WITH ENDORSEMENT OF APPROVAL OF APPOINTMENT BY THE 3RD RESPONDENT.

EXHIBIT P2 PHOTOCOPY OF G.O.(RT) NO. 1290/2013/G.EDN.

DATED 19.03.2013.

EXHIBIT P3 PHOTOCOPY OF THE ORDER PROMOTING THE PETITIONER AS OFFICE ATTENDANT WITH EFFECT FROM 01.06.2002 CONTAINING THE ENDORSEMENT OF APPROVAL BY THE 3RD RESPONDENT.

EXHIBIT P4 PHOTOCOPY OF THE REQUEST SUBMITTED BY THE 4TH RESPONDENT MANAGER DATED 26.12.2016.

EXHIBIT P5 PHOTOCOPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16.01.2018.

EXHIBIT P6 PHOTOCOPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 14.02.2018.