Rajalekshmy R vs State Of Kerala
2021 Latest Caselaw 13196 Ker

WP(C) NO. 27448 OF 2020

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                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                  THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
          THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                             WP(C) NO. 27448 OF 2020
PETITIONERS:

      1      RAJALEKSHMY R.
             AGED 29 YEARS
             OCC.SERVICE, D/O.RAJENDRAN NAIR, USHA BHAVAN, EDAYAM P.O.,
             ARACKAL, KOLLAM, PERUMANNUR, KERALA - 691 532.

      2      SABITHA S.
             AGED 30 YEARS
             OCC. SERVICE, KOLLANVILA VEEDU, THADICADU P.O., EDAMULACKAL,
             KOLLAM, KERALA - 691 306.

             BY ADVS.
             M.V.THAMBAN
             R.REJI
             THARA THAMBAN
             B.BIPIN
RESPONDENTS:

      1      STATE OF KERALA
             REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT,
             SECRETARIATE, THIRUVANANTHAPURAM - 695 001.

      2      THE DIRECTOR OF GENERAL EDUCATION
             JAGATHY, THIRUVANANTHAPURAM - 695 014.

      3      THE DISTRICT EDUCATION OFFICER
             PUNALUR - 691 306.

      4      THE MANAGER,
             A.K.M.V.H.S.SCHOOL, THADIKKADU P.O., PIN- 691 306.

             BY ADV SHRI.V.PREMCHAND
             SMT.NISHA BOSE, SR.GP

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27448 OF 2020

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                                     JUDGMENT

This writ petition is filed seeking the following prayers:

"(i) To issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3 to declare the probation of the petitioners and to extend them with all the benefits consequent thereto.

(ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding respondent 1 to rely on the order of Additional Director, Public Education Department regarding the validity of appointment of Petitioners.

(iii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding respondent 1 to immediately dispose the appeal filed by the 4th respondent."

2. Heard the learned counsel for the petitioners, the learned Government

Pleader as well as the learned counsel appearing for the 4 th respondent

Manager.

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

petitioners were appointed as UPSA on 01.06.2018 by Exts.P1 and P3 orders and

the appointments were approved by Exts.P2 and P4. It is submitted that in the

meanwhile, there was a complaint with regard to the conduct of the person who

was the approved manager at the relevant time. It is submitted that, on the WP(C) NO. 27448 OF 2020

ground that the approved manager was not competent to make the

appointments, the present manager, the 4 th respondent, has refused to declare

the probation of the petitioners on account of which the petitioners are being

denied their due service benefits. It is submitted that though Ext.P6 order had

been passed by the DGE directing the declaration of the petitioners' probation,

no steps were taken by the 4th respondent.

4. A detailed counter affidavit has been placed on record by the 4 th

respondent. It is submitted therein that the school is to be managed in

accordance with Ext.R4(a) byelaws. It is submitted that one Haneef Shiroz had

been appointed as manager of the school for two years with effect from

10.01.2017. It is submitted that it was the said person who had made the

appointments of the petitioners herein. It is stated that the Board members had

received reliable information that appointments were being made in the school

without placing such appointments before the Board as is stipulated in the

bylaws. It is stated that Exts.P2 and P4 orders of approval had been obtained

without informing the Board. It is further stated that the manager had been

involved in criminal cases also. It is submitted that the Managing Board had met

on 10.06.2018 and had taken a decision to remove Haneef Shiroz from the post

of manager with retrospective effect from 01.06.2018 and to post Sri.Rahim as WP(C) NO. 27448 OF 2020

manager in his stead. It is stated that by Ext.R4(c) proceedings dated 22.12.2018,

the Director General of Education had approved the removal of Haneef Shiroz

and the appointment of the new manager with effect from 01.06.2018. It is

submitted that Haneef Shiroz had challenged the order filing W.P.(C).

No.4715/2019 and the said writ petition had been disposed of directing the said

person to approach Government in revision. It is submitted that by Ext.R4(d)

order, the revision petition preferred by Haneef Shiroz had been rejected. It is

submitted that since Ext.P6 order had not considered the contentions of the 4 th

respondent, Ext.R4(e) revision petition had been filed on 27.02.2020 and the

same is pending consideration.

5. The learned Government Pleader submits that there is no objection raised

with regard to the availability of open vacancies on 01.06.2018 or to the fact that

the petitioners are qualified and eligible to hold the posts. It is submitted that

the only question is with regard to the competence of the person who had

appointed the petitioners. It is also admitted that a revision petition has been

preferred as against Ext.P6 before the Government.

6. Having heard the counsel on all sides, I am of the opinion that since a

statutory revision petition has been preferred by the 4 th respondent as against

Ext.P6 order, the same is liable to be considered and disposed of with notice to WP(C) NO. 27448 OF 2020

the petitioners as well. The specific case of the petitioners that the vacancies

are established and the petitioners are fully qualified for appointment against

such posts shall be considered by the Government while considering the

revision petition preferred by the 4th respondent.

7. There will, accordingly, be a direction to the 1 st respondent to take up,

consider and pass orders on Ext.R4(e) revision petition preferred by the 4 th

respondent after hearing all concerned parties including the 4 th respondent and

the petitioners herein, through any appropriate means, including through video

conferencing. Orders shall be passed, at the earliest, at any rate, within a period

of six weeks from the date of receipt of a copy of this judgment. It is made clear

that in case the revision petition preferred by the 4 th respondent is rejected,

appropriate steps for declaration of probation of the petitioners shall also be

taken without further delay.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 27448 OF 2020

APPENDIX OF WP(C) 27448/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER ISSUED BY THE MANAGER, AKMVHS DATED 1/6/2018.

EXHIBIT P2 THE TRUE COPY OF THE ORDER B2/3594/2018/D.DIS.

DATED 25/1/2019 ISSUED BY THE 3RD RESPONDENT APPROVING THE APPOINTMENT OF THE 1ST PETITIONER.

EXHIBIT P3 THE TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER ISSUED BY THE MANAGER, AKMVHS DATED 1/6/2018.

EXHIBIT P4 THE TRUE COPY OF THE ORDER B2/3596/2018/D.DIS DATED 10/7/2019 ISSUED BY THE 3RD RESPONDENT APPROVING THE APPOINTMENT OF THE 2ND PETITIONER.

EXHIBIT P5 THE TRUE COPY OF THE ORDER OF HIGH COURT OF KERALA WP(C) NO.22467/2019 DATED 19/8/2019.

EXHIBIT P6 TRUE COPY OF THE ORDER OF ADDITIONAL DIRECTOR, PUBLIC EDUCATION DEPARTMENT ET5/9268/2019/D.G.E./D.DIS. DATED 30/1/2020.

EXHIBIT P7 TRUE COPY OF THE ORDER OF TH 3RD RESPONDENT B2/4949/2019 DATED 28/10/2020.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4(a) TRUE COPY OF THE BYE LAW DATED 18.12.1985

EXHIBIT R4(b) TRUE COPY OF THE MINUTES BOOK DATED 10.06.2018

EXHIBIT R4(c) TRUE COPY OF THE ORDER DATED 22.12.2018 ISSUED BY DIRECTOR OF GENERAL EDUCATION

EXHIBIT R4(d) TRUE COPY OF THE ORDER DATED 21.10.2020 ISSUED BY THE GOVERNMENT WP(C) NO. 27448 OF 2020

EXHIBIT R4(e) TRUE COPY OF THE REVISION PETITION DATED 27.02.2020 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE GOVERNMENT

EXHIBIT R4(f) TRUE COPY OF REPLY DATED 20.08.2020 SUBMITTED BEFORE DEO, PUNALUR BY THE PETITIONER