Nishaj B. vs State Of Kerala
2021 Latest Caselaw 8995 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                      WP(C).No.24034 OF 2018(N)


PETITIONER:

               NISHAJ B., SAJEENA MANZIL, VENGODE, KUDAVOOR.P.O,
               THIRUVANANTHAPURAM-695313.

               SRI.PIRAPPANCODE V.S.SUDHIR
               SRI.JELSON J.EDAMPADAM
               SMT.A.MEGHA

RESPONDENTS:

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

        2      DIRECTOR OF PUBLIC INSTRUCTION
               DIRECTORATE OF PUBLIC INSTRUCTION,
               THIRUVANANTHAPURAM-695001.

        3      DEPUTY DIRECTOR OF EDUCATION
               DIRECTORATE OF EDUCATION,THIRUVANANTHAPURAM-695001.

        4      DISTRICT EDUCATIONAL OFFICER
               PUNALUR,KOLLAM-691012.

        5      ASSISTANT EDUCATIONAL OFFICER
               KILIMANOOR,THIRUVANANTHAPURAM DISTRICT-695015.

        6      ASSISTANT EDUCATIONAL OFFICER
               CHADAYAMANGALAM,THIRUVANANTHAPURAM DISTRICT-695121.

        7      THE CORPORATE MANAGER
               CORPORATE MANAGEMENT OF LUTHERAN SCHOOLS,INDIAN
               EVANCHELICKAL LUTHERAN CHURCH,THIRUVANANTHAPURAM
               SYNOD,CLHSS COMPOUND,PEROORKADA,THIRUVANANTHAPURAM-
               695005.

        8      SALEENA.S., MAS MANZIL, PATTARA,
               KALLARA.P.O,THIRUVANANTHAPURAM-695608.

ADDL.   9      MUHAMMED UVAIS.A.K., AGED 24 YEARS
               S/O ABDUL KHALEEL, WORKING AS L.G FULL TIME ARABIC
               TEACHER, LUETHERAN HIGH SCHOOL, SOUTH ARYAD, RESIDING
 WP(C).No.24034 OF 2018(N)

                                    2

                 AT AMANATH MANZIL, AVALOOKKUNNU P.O, GURUPURAM
                 ALAPPUZHA. (ADDL.R9 IS IMPLEADED AS PER ORDER DATED
                 21/02/2019 IN IA.NO.01/2019)

                 SRI.D.KISHORE
                 SRI.R.MURALEEKRISHNAN (MALAKKARA)
                 SMT.M.SANTHY
                 SRI.P.M.MANOJ-SR.GP.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.24034 OF 2018(N)

                                         3


                                   JUDGMENT

Dated this the 18th day of March 2021

The petitioner says that he is presently working as a Part

Time Arabic Teacher in the "LMLPS", Venkittakuzhi, which is

managed by the seventh respondent - Corporate Manager. He

says that he is aggrieved by Ext.P13 order of the Government

which declines approval to his appointment on scale of pay

basis, but grants him the said benefit only on daily wages

between 01.06.2015 and 31.03.2018.

2. The petitioner says that Ext.P13 is untenable because

he had been originally appointed on daily wages on 04.01.2011

in the "LMLPS", Arivarikkuzhi, which is managed by the same

Corporate Manager, in the vacancy caused by the resignation

of a teacher by name Sri.S.Najeem. He says that,

subsequently, he was appointed as a Full Time Teacher in the

said School on 01.06.2011, when a substantive vacancy arose;

but that subsequently, in the academic year 2013-14, when

another teacher was shifted to this School, he was kept out of

the service for lack of accommodation. He says that when the

aforementioned teacher was sent back to the original school,

he was reappointed, but that in the academic year 2014-15, WP(C).No.24034 OF 2018(N)

when the same teacher was again shifted back to the

Arivarikuzhi School, he was thrown out.

3. The petitioner says that subsequently, on 01.06.2015,

he was appointed as a Part Time Teacher in Venkittakuzhi, but

that when his papers for approval were forwarded by the

Manager, objections were raised that there was another

teacher in the "LMLPS", Venkittakuzhi, namely the 8 th

respondent, who ought to have been accommodated to the post

which arose on 01.06.2011, since she enjoys a preferential

statutory right under Rule 43 of Chapter XIVA of the Kerala

Education Rules (KER).

4. The petitioner contends that the afore finding has been

entered into by the educational Authorities because the 8 th

respondent was apparently working as a Part Time Teacher

with effect from 2010 and she obtained full time status only

five years later on 01.06.2015, when she was so appointed to

the Arivarikuzhi School.

5. The petitioner contends that even assuming that the

stand of the Government in Ext.P13, that the 8 th respondent -

Smt.Saleena ought to have been appointed to the vacancy

which arose on 01.06.2011, is accepted, then the Manager WP(C).No.24034 OF 2018(N)

ought to have appointed him to the resultant vacancy of Part

Time Teacher in "LMLPS" Venkittakuzhi, when Smt.Saleena

was so accommodated. He alleges that the Manager did not do

so on account of certain internecine disputes within the

educational agency; and consequently, that even though he

was appointed as a Part Time Teacher with effect from

01.06.2015 - when Smt.Saleena became a Full time Teacher on

account of her having completed five years in service -

approval to the same has been denied through Ext.P13,

consequent to which, he has been only granted approval on

daily wages with effect from 01.06.2015 to 31.03.2018.

6. The petitioner, therefore, prays that Ext.P13 be set

aside and the competent Authorities be directed to consider

approval to his appointment with effect from 01.06.2011,

either as a Full Time teacher or as a Part Time teacher - in the

vacancy that may have resulted if Smt.Saleena had been

accommodated to the vacancy which arose on 01.06.2011.

7. I have heard Sri.V.S.Sudheer, the learned counsel for

the petitioner; Sri.D.Kishore, learned counsel appearing for the

7th respondent; Smt.Shanti, learned counsel appearing for the

9th respondent; Sri.Murali Krishnan, learned counsel WP(C).No.24034 OF 2018(N)

appearing for the 8th respondent and Sri.P.M.Manoj, learned

Senior Government Pleader.

8. The submissions of the petitioner as afore were

contested by respondents 7, 8 and 9, saying that he was

originally appointed only as a part time teacher on 04.01.2011

on daily wages, when a teacher by name Sri.S.Najeem, who

was a Full Time Arabic Teacher, had resigned from the services

of the School. They say that, thereafter on 01.06.2011, when

a substantive vacancy arose, the petitioner had been appointed

by the then Manager in error to the said vacancy, even when

the 8th respondent was already working as a Part Time teacher

in another school under the same management, namely

"LMLPS", Venkittakuzhi. The respondents, therefore, contend

that Ext.P13 cannot be found to be in error since Smt.Saleena

was certainly a Rule 43 claimant, thus being entitled to be

appointed to the vacancy which arose on 01.06.2011 and that

this cannot be assailed by the petitioner because he was

admittedly working only on daily wages. The respondents,

therefore, prayed that this writ petition be dismissed and

Ext.P13 be confirmed.

9. The learned Senior Government Pleader - WP(C).No.24034 OF 2018(N)

Sri.P.M.Manoj, countered the submissions of the petitioner by

saying that, as is evident from Ext.P13, the entire controversy

arose on account of certain internecine disputes within the

management of the School, but added that presently the

District Educational Officer is in charge of the said position.

He asserted that when Smt.Saleena was already working as a

Part Time Teacher in "LMLPS" Venkittakuzhi from 2010, the

then Manager of the School could not have appointed the

petitioner to a post of Full Time Teacher, which arose on

01.06.2011. He submitted that noticing this, the petitioner

had been thrown out from service and that subsequently, on

01.06.2015, the Manager appears to have appointed him in the

"LMLPS", Venkitakuzhi - which had, by then, become an

"uneconomic" School - in a scale of pay basis which, therefore,

can be approved only thus, going by the extant Government

Orders. He submitted that since the School in question is

uneconomic, the appointment of the petitioner can only be

granted on daily wage basis and that this is exactly what has

been done through Ext.P13 order. He, therefore, prayed that

this writ petition be dismissed.

10. When I consider the afore rival contentions, it is clear WP(C).No.24034 OF 2018(N)

that, but for the fact that the 8 th respondent is working as a

Part Time teacher in one of the Schools under the same

management from the year 2010, the petitioner's appointment

on 01.06.2011 could not have been objected. It is because,

Smt.Saleena was a Rule 43 claimant at the time when the

appointment of the petitioner as a Full Time Teacher was made

with effect from 01.06.2011, and I cannot find fault the

objections raised against this by the competent educational

Authorities, since her claim certainly requires to be statutorily

recognised.

11. That said, however, what engages my mind at this

juncture is the fact that, had Smt.Saleena been accommodated

to the vacancy which arose on 01.06.2011, then certainly a

resultant vacancy would have arisen in the post of part time

teacher in the "LMLPS" Venkittakuzhi, which was not

"uneconomic" at the relevant time, concededly. This certainly

could have given the petitioner an opportunity of obtaining

approval on scale of pay basis, since the School was

"economic" at that time. However, this vital aspect has not

been considered by any of the educational Authorities or by the

Government in Ext.P13 order; but they have mechanically WP(C).No.24034 OF 2018(N)

proceeded to hold that, since the petitioner had been thrown

out from service consequent to the fact that Smt.Saleena had

to be accommodated in the vacancy which arose on

01.06.2011, his subsequent appointment on 01.06.2015 in the

"LMLPS", Venkittakuzhi can only be approved on daily wage

basis, since the School had, by then, become an uneconomic

one.

12. I am, therefore, of the firm view that the petitioner's

claim - based on his contentions that, had Smt.Saleena been

appointed in the vacancy which arose on 01.06.2011, the

Manager ought to have then accommodated him with the

resultant vacancy of a Part Time Teacher in LMLPS,

Venkittakuzhi, which School was not "uneconomic" at that

relevant time - certainly requires a good look.

13. In other words, what the petitioner requires is a

reconsideration of the matter, interchanging the lien of the

teachers to the two posts in question, so that both of them

would not be prejudiced, particularly because they have,

concededly, worked during the entire period. In fact, I must

also record the submissions of Sri.V.S.Sudheer, the learned

counsel for the petitioner, that his client is only seeking WP(C).No.24034 OF 2018(N)

notional benefits and not the monetary ones, if the Authorities

are willing to accede to his claims.

14. In the afore circumstances, I order this writ petition

and set aside Ext.P13; with a consequential direction to the

Government to reconsider the petitioner's claim for approval,

taking note of his afore specific contention, which shall be

done after affording him an opportunity of being heard, along

with 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.

It is needless to say that, if, after the afore exercise, it is

found that the petitioner is entitled to be approved into one of

the vacancies in the "LMLPS", Venkittakuzhi, before it became

an "uneconomic" one, consequential orders with respect to his

salary and benefits will also be issued, leading to the same

being disbursed to him without any avoidable delay.

                                             Sd/- DEVAN RAMACHANDRAN

STU                                                   JUDGE
 WP(C).No.24034 OF 2018(N)




                              APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1         TRUE COPY OF THE APPOINTMENT ORDER DATED 4.1.2011

ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER APPOINTING HIM AS TEMPORARY TEACHER.

EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2011 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER APPOINTING HIM AS PERMANENT/PROBATIONARY TEACHER.

EXHIBIT P3 TRUE COPY OF THE LETTER NO.D/637/2011/K.DIS.DATED 31.3.2012,ISSUED BY THE 5TH RESPONDENT ADDRESSED TO THE MANAGER,LM LPS,ARIVARIKKUZHI.

EXHIBIT P4 TRUE COPY OF THE LETTER NO.206/2011-12 DATED 9.4.2012 OF THE 7TH RESPONDENT TO THE 5TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER NO.599/2010 DATED 1.6.2010 OF THE MANAGER,LUTHERANE SCHOOLS,APPOINTING SMT.SALEENA.S,AS PART TIME L.G.(ARABIC)TEACHER IN LM LPS VENIKITAKUZHY.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.B1/1486/11/K.DIS DATED 24.5.2011 OF THE PERSONAL ASSISTANT IN FULL ADDITIONAL CHARGE OF THE DISTRICT EDUCATIONAL OFFICER,PUNALUR,APPROVING THE APPOINTMENT OF SMT.S.SALEENA AS P.T.L.G.(ARABIC)TEACHER WITH EFFECT FROM 1.6.2010 IN LM LPS VENKITAKUZHY.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.44/3/14 DATED 13.8.2014 OF THE 7TH RESPONDENT

EXHIBIT P8 TRUE COPY OF THE ORDER NO.91/2015 DATED 1.6.2015 OF THE 7TH RESPONDENT,PROMOTING THE 8TH RESPONDENT AS FULL TIME ARABIC TEACHER.

EXHIBIT P9 TRUE COPY OF THE LETTER NO.B/101/K.DIS DATED 25.1.2016 OF THE 6TH RESPONDENT TO THE 7TH RESPONDENT

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 7.12.2017 OF THE TEACHER IN CHARGE LM LPS,VENKITAKUZHY ADDRESSED TO THE 6TH RESPONDENT

EXHIBIT P11 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE WP(C).No.24034 OF 2018(N)

PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P12 TRUE COPY OF THE LETTER NO.B2/3246/17/K.DIS DATED 14.2.2018 OF THE 6TH RESPONDENT TO THE 7TH RESPONDENT

EXHIBIT P13 TRUE COPY OF THE G.O.(RT)NO.1216/2018/G.EDN.DATED 23.3.2018

EXHIBIT P14 TRUE COPY OF THE LETTER NO.B3/3220/17 DATED 23.1.2018 OF THE DISTRICT EDUCATIONAL OFFICER,ALAPPUZHA,ADDRESSED TO BOTH THE PETITIONER AND THE 7TH RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE ORDER OF THE 7TH RESPONDENT APPOINTING THE PETITIONER AS PART TIME ARABIC TEACHER IN LM LPS, VENKATTAKUZHI FROM 01.06.2015 ONWARDS.

EXHIBIT P16 TRUE COPY OF THE LETTER NO.91/15 DATED 01/06/2015 OF THE 7TH RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE LETTER DATED 07/12/2017 OF THE TEACHER IN CHARGE, LM LPS, VENKITAKUZHI, ADDRESSED TO THE ASSISTANT EDUCATIONAL OFFICER.

EXHIBIT P18 TRUE COPY OF THE GO(RT) NO.4099/2017/G.EDN. DATED 01/11/2017.

EXHIBIT P19 TRUE COPY OF THE RELEVANT EXTRACT OF THAT ATTENDANCE REGISTER MAINTAINED IN THE LM LPS, VENKITAKUZHI.

ANNEXURE I TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2017 ISSUED BY THE MANAGER LUTHERAN SCHOOLS TO THE PETITIONER HEREIN.

ANNEXURE II TRUE COPY OF THE COMMUNICATION DATED 20/10/2018 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER TO SRI.NISHAJ B.

RESPONDENT'S EXHIBITS:

EXHIBIT R8(A) TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2010 APPOINTING THE 8TH RESPONDENT AS PART TIME L.G. ARABIC TEACHER.

EXHIBIT R8(B) TRUE COPY OF THE PROMOTION AND APPOINTMENT ORDER WP(C).No.24034 OF 2018(N)

DATED 01/06/2015 ISSUED BY THE 7TH RESPONDENT TO THE 8TH RESPONDENT.

EXHIBIT R8(C) TRUE COPY OF THE STAFF FIXATION ORDER OF LMLPS, VENKITTAKUZHI FOR THE YEAR 2009-10.

EXHIBIT R8(D) TRUE COPY OF THE STAFF FIXATION ORDER OF LMLPS, VENKITTAKUZHI FOR THE YEAR 2010-11.

EXHIBIT R7(A) TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2010 APPOINTING THE 8TH RESPONDENT AS PART TIME L.G. ARABIC TEACHER.

EXHIBIT R7(B) TRUE COPY OF THE PROMOTION AND APPOINTMENT ORDER DATED 01/06/2015 ISSUED BY THE 7TH RESPONDENT TO THE 8TH RESPONDENT.

EXHIBIT R7(C) TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2009-2010.

EXHIBIT R7(D) TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2010-2011.

EXHIBIT R7(E) TRUE COPY OF THE PROCEEDINGS NO.B/768/2018/K.DIS.

DATED 20/08/2018 OF THE 6TH RESPONDENT IS PRODUCED HEREWITH AND MARKED AS.

EXHIBIT R7(F) TRUE COPY OF THE SHOW CAUSE NOTICE DATED 04/02/2019 ISSUED BY THE 7TH RESPONDENT TO THE HEADMISTRESS, LMLPS, VENKTTAKUZHI.

EXHIBIT R9(A) TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2017 ISSUED BY THE MANAGER LUTHERAN SCHOOLS TO THE PETITIONER HEREIN.

EXHIBIT R9(B) TRUE COPY OF THE COMMUNICATION DATED 20/10/2018 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER TO SRI. NISHAJ B.