Aparna Mohan vs The State Of Kerala
2021 Latest Caselaw 2201 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                       WP(C).No.2244 OF 2020(E)


PETITIONER:

               APARNA MOHAN, KANJIRAPPARA NALUKETTU,
               PRAKKANAM.P.O., PATHANAMTHITTA DISTRICT,
               PIN-689643.

               BY ADVS.
               SRI.V.B.PREMACHANDRAN
               SRI.S.MADHAVAN NAIR

RESPONDENTS:

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

      2        THE DIRECTOR OF GENERAL EDUCATION,
               GOVERNMENT OF KERALA, JAGATHY.P.O.,
               THIRUVANANTHAPURAM-695014.

      3        THE DISTRICT EDUCATIONAL OFFICER,
               PATHANAMTHITTA, PATHANAMTHITTA.P.O.,
               PIN-683645.

      4        THE ASSISTANT EDUCATIONAL OFFICER,
               KOZHENCHERY, THEKKEMALA.P.O.,
               PATHANAMTHITTA DISTRICT, PIN-695654.

      5        THE MANAGER,
               M.G.U.P. SCHOOL, PRAKKANAM, PRAKKANAM.P.O.,
               PATHANAMTHITTA DISTRICT, PIN-683643.

               R5 BY ADV. SRI.K.N.GOVINDANKUTTY MENON
               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 2244/20
                                       2


                                JUDGMENT

The petitioner says that she was appointed

as an Office Attendant in the services of MGUP

School, Prakkanam, Pathanamthitta, on

compassionate grounds, consequent to the death

of her mother, who unfortunately died in

harness while working as an Upper Primary

School Assistant. She says that, however, the

4th respondent has rejected her proposal for

approval solely on the ground that since the

school is an 'uneconomic' one, the vacancy

could have been filled up only on daily wage

basis and not by appointing a permanent staff.

2. The petitioner says that the Manager

of the School, therefore, preferred statutory

appeals and revisions before the hierarchy of

Authorities under the Kerala Education Rules

(KER for short) but that all of them have been

rejected, finally culminating in Ext.P9 order

of the Government, wherein, it has been WPC 2244/20

reiterated that since the School is an

'uneconomic' one - as per the Government

Circular, namely Ext.P3 - only a person on

daily wages could have been appointed. She,

therefore, prays that Ext.P3 circular and

Ext.P9 Government Order be set aside and the

competent Educational Authorities be directed

to grant approval to her appointment.

3. The learned counsel for the petitioner

- Sri.V.B.Premachandran, added to the above by

saying that, consequent to the death of his

client's mother, their family plunged into

penury because her father is unemployed and

she is the only child eligible for

appointment. He submitted that, in fact, as is

evident from Ext.P13, appointment of a

similarly placed person, namely a certain

Smt.M.K.Jancy, was approved with effect from

04.06.2002 as a special case on humanitarian

ground and that his client is also entitled to WPC 2244/20

such benefit, taking note of her extenuating

circumstances. He, therefore, prayed that this

Writ Petition be allowed.

4. Sri.P.M.Manoj - learned Senior

Government Pleader, submitted that Government

had no other option but to issue Ext.P9 order

since they are bound by Ext.P3 Circular, which

mandates that in the case of 'uneconomic'

schools, vacancies can be filled up only on

daily wage basis. He, therefore, prayed that

this Writ Petition be dismissed.

5. When I consider the afore submissions

and go through the materials available on

record, it is without doubt that the

petitioner is entitled to be appointed under

Rule 51B Chapter XIVA of the KER on

compassionate grounds. The only aspect found

against her is that she has been appointed

substantively, while the posts in 'uneconomic

schools' can be filled up only on daily wage WPC 2244/20

basis, as per Ext.P3 Circular.

6. That said, however, what is relevant

in this case is that the petitioner has

obtained a statutory right - namely under Rule

51B Chapter XIVA of the KER - to be appointed

consequent to the death of her mother and

obviously, therefore, a circular of the

Government, which is not a statutory

provision, cannot overwrite the provisions of

law. Clearly, therefore, Government could not

have rejected the petitioner's proposal for

approval merely on the basis of Ext.P3 and

that too, when it merely says that such

vacancies can be filled up in 'uneconomic'

schools only through daily wage employees but

does not say that the said vacancy will have

to be kept vacant until the school becomes

'economic'.

7. In the afore circumstances, I am

certain in my mind that Ext.P9 cannot obtain WPC 2244/20

favour of this Court and that Government must

reconsider the matter, after evaluating all

relevant facts and adverting to my

observations above.

Resultantly, I order this writ petition

and set aside Ext.P9; with a consequential

direction to the Government to reconsider the

case of the petitioner, particularly taking

note of her statutory right under Rule 51B

Chapter XIVA of the KER and after affording an

opportunity of being heard to her, as also the

Manager of the School - either physically or

through videoconferencing - thus culminating

in an appropriate order thereon, as

expeditiously as is possible, but not later

than three months from the date of receipt of

a copy of this judgment.

Sd/-

                                        DEVAN RAMACHANDRAN
      RR                                         JUDGE
 WPC 2244/20


                           APPENDIX
      PETITIONER'S/S EXHIBITS:

      EXHIBIT P1        TRUE COPY OF THE APPOINTMENT LETTER

DATED 1.8.2017 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE LETTER NO.F/2680/2017 DATED 30.8.2017 ISSUED BY 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO.58604/J2/12 GEN. EDN. DATED 6.11.2012.

EXHIBIT P4 TRUE COPY OF THE ORDER NO.B1/7223/2017 DATED 13.10.2017 OF THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE APPEAL DATED 13.11.2017 FILED BY 5TH RESPONDENT MANAGER BEFORE THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER G.O.NO.(P)12/99 P & AID RD DATED 24.5.1999.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.F3/85237/2017/DPI/K.DIS. DATED 11.5.2018 OF THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE ORDER NO.N2/122/2018/GEN. EDN. DEPT. DATED 16.4.2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ORDER G.O.

(M.S.)NO.83/2018/GEN. EDN DATED 12.6.2018, ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE PETITION DATED 21.5.2019 FILED BY PETITIONER BEFORE THE HON'BLE MINISTER FOR EDUCATION. WPC 2244/20

EXHIBIT P11 TRUE COPY OF THE LETTER NO.N2/122/2018/GEN. EDN DATED 29.11.2019, ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE DETAILS OF THE SANCTIONED POSTS OF STAFF IN THE SCHOOL FOR THE YEAR 2018-2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE ORDER NO.C./1669/2014/K.DIS. DATED 30.4.2014 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, ADOOR.