Jaleel Menakath vs The State Of Kerala
2021 Latest Caselaw 14560 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                      WP(C) NO. 14174 OF 2019
PETITIONER:
           JALEEL MENAKATH
           AGED 38 YEARS
           S/O. ABDULLAKUTTY, CLERK, MI HIGHER SECONDARY SCHOOL
           FOR GIRLS, PUDUPONNANI, MALAPPURAM-673 586

          BY ADVS.
          T.T.MUHAMOOD
          SRI.V.E.ABDUL GAFOOR
          SRI.A.MOHAMMED SAVAD
          SRI.C.Y.VINOD KUMAR
          SRI.JAYENDRAN KOCHOTH


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

    2     THE DIRECTOR OF PUBLIC INSTRUCTION
          OFFICE OF THE DPI, JAGATHY, THIRUVANANTHAPURAM-695 004

    3     THE DEPUTY DIRECTOR OF EDUCATION
          OFFICE OF THE DDE, MALAPPURAM , PIN-676 505

    4     THE DISTRICT EDUCATIONAL OFFICER,
          OFFICE OF THE DEO, THIRUR, MALAPPURAM-676 101.

    5     THE MANAGER,
          MI HIGHER SECONDARY SCHOOL FOR GIRLS, PUDUPONNANI,
          MALAPPURAM-673 586

          BY ADV GOVERNMENT PLEADER

          SRI. P.M.MANOJ - SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14174 OF 2019
                                   2

                              JUDGMENT

The petitioner has approached this Court impugning Exts.P2

to P8 orders of various educational Authorities and the

Government, in the hierarchy of the Kerala Education Rules

(KER), as per which, his promotion to the post of Clerk has been

rejected for the reason that while working as a Full Time Menial

(FTM), he was found guilty of misappropriation of money and

had been imposed with the punishment of withholding two

increments with cumulative effect.

2. The petitioner concedes that the punishment imposed,

as is evident from Ext.P9 dated 31.05.2012, was accepted by him;

but asserts that, subsequently, the Manager, being fully aware of

his credentials, offered him promotion, through Ext.P1, as a Clerk

in the year 2015.

3. The petitioner contends that the reason stated in the

impugned orders is extremely disparaging to him, since it

virtually holds that once he was found guilty of misappropriation,

he should always be treated with suspicion and cannot be granted WP(C) NO. 14174 OF 2019

any further promotion. The petitioner, therefore, prays that

impugned orders be set aside and the Educational Authorities be

directed to grant approval to Ext.P1 promotion order issued by the

Manager.

4. The afore submissions of Sri.T.T.Muhamood - learned

counsel for the petitioner, was refuted vehemently by the learned

Senior Government Pleader - Sri.P.M.Manoj, saying that the

petitioner's past credentials would clearly demonstrate that he is

unworthy of being promoted as a Clerk, the incumbent who has to

deal with money, particularly from the Treasury. He submitted

that since the earlier order of punishment against the petitioner, as

is evident from Ext.P9, [which has also been produced by the 4 th

respondent as Ext.R4(d)], would show that the proven allegation

against him is that he had misappropriated Government money

and had defrauded the Treasury by faking its Officer's signature in

the bill book, thus tampering the same.

5. The learned Senior Government Pleader predicated

that, therefore, when the allegations against the petitioner were so WP(C) NO. 14174 OF 2019

grievous and since they were proved in a proper enquiry, it was

unfair on the part of the Manager to have then promoted him as a

Clerk, who would get the same opportunity in future also. The

learned Senior Government Pleader, therefore, prayed that this

writ petition be dismissed.

6. It is evident from the sum total of the submissions of

the learned Senior Government Pleader, as is also discernible from

the impugned orders, the stand of the respondents is that since the

petitioner was found guilty of financial misappropriation once, it

should be presumed that he will do so in future. The impugned

orders merely say that since he has been imposed with the

punishment, on the basis of these allegations, he cannot be given

the charge of any post in which money is involved.

7. However, what is relevant in this case is that there are

no provisions in law - at least the learned Senior Government

Pleader has been unable to show me any, in spite of specific

opportunity being granted - to the effect that a FTM, who has

been punished once for financial misappropriation, cannot be then WP(C) NO. 14174 OF 2019

granted promotion to the post of Clerk any time thereafter.

Pertinently, the petitioner was imposed with the punishment in the

year 2012; while he was promoted by the same Manager, who

imposed that punishment, in the year 2015, namely after three

years it. By this time, the petitioner had already suffered the

punishment and he, therefore, must have approached the Manager

for indulgence to be promoted; but this has been now turned down

by the Authorities through impugned orders.

8. I am afraid that, therefore, I cannot find favour with

the impugned orders in the manner it is presently framed because,

as I have already said above, they proceeded on the assumption

that since the petitioner was guilty of financial misappropriation

once, he will be susceptible to the same in future also. I am

certain that this is a very unfair assessment of the individual,

particularly, when he has suffered the punishment imposed upon

him through Ext.P9.

Resultantly, this writ petition is allowed and Ext.P8 is set

aside; with a resultant direction to the Government to reconsider WP(C) NO. 14174 OF 2019

the matter, adverting to my observations as above 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 four months

from the date of receipt of a copy of this judgment.

I, however, make it clear that my observations above will

not apply if the Government is able to point out any legal

provision which de-bars the petitioner from being appointed as a

Clerk; but in such case, it shall be specifically referred to in the

resultant order.

Sd/-

DEVAN RAMACHANDRAN

JUDGE SAS/14/07/2021 WP(C) NO. 14174 OF 2019

APPENDIX OF WP(C) 14174/2019

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF ORDER OF APPOINTMENT ISSUED BY THE 5TH RESPONDENT ON 09.11.2015, APPOINTING THE PETITIONER AS CLERK.

EXHIBIT P2 TRUE COPY OF ORDER NO. B3/7174/2015/K.DIS DATED 02.12.2016 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF ORDER NO. 52502/N.1/14/G.EDN.

DATED 28.01.2015 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF ORDER NO. B4/41376/2016/K.DIS DATED 11.09.2017.

EXHIBIT P5 TRUE COPY OF ORDER NO. EM(2) 77024/2017/DPI/K.DIS DATED 29.01.2018.

EXHIBIT P6 TRUE COPY OF REVISION PETITION DATED NIL SUBMITTED BY THE MANAGER BEFORE THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF ORDER NO. N1/103/2018/G.EDN.

DATED 19.09.2018 ISSUED BY THE GOVERNMENT.

EXHIBIT P8 TRUE COPY OF ORDER NO. N1/391/2018/G.EDN.

DATED 08.04.2019.

EXHIBIT P9 TRUE COPY OF ORDER NO. M/14/2011 DATED 31.05.2012.

RESPONDENTS' EXHIBITS:-

EXHIBIT R4A TRUE COPY OF LETTER DATED 06.07.2011 OF THE TREASURY OFFICER

EXHIBIT R4B TRUE COPY OF LETTER DATED 08.07.2011 OF THE PETITIONER

EXHIBIT R4C TRUE COPY OF THE ENQUIRY REPORT WP(C) NO. 14174 OF 2019

EXHIBIT R4D TRUE COPY OF LETTER NO.M/14/2011 DATED 31.05.2012

EXHIBIT R4E TRUE COPY OF RELEVANT STAFF FIXATION ORDER NO.D.DIS/B3/4268/2018 DATED 04.07.2018

EXHIBIT R4F TRUE COPY OF RELEVANT STAFF FIXATION ORDER NO.D.DUS B3/43549/2019 DATED 19.07.2019

EXHIBIT R4G TRUE COPY OF RELEVANT STAFF FIXATION ORDER NO.D.DIS B3/48488/2019 DATED 17.07.2019

//TRUE COPY//

P.A. TO JUDGE