M.Y.Anitha vs The State Of Kerala
2021 Latest Caselaw 9621 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                        WP(C).No.9529 OF 2016(M)


PETITIONER/S:

                M.Y.ANITHA
                AGED 38 YEARS
                W/O.LATE THANKACHAN, MENIAL (FULL TIME),
                ST.MARY'S H.S., ARYANKAVU, KOLLAM DISTRICT.

                BY ADVS.
                SRI.V.A.MUHAMMED
                SRI.M.SAJJAD

RESPONDENTS:

      1         THE STATE OF KERALA
                REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
                GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

      2         THE DIRECTOR OF PUBLIC INSTRUCTIONS
                JAGATHY, THIRUVANANTHAPURAM - 695 014.

      3         THE DEPUTY DIRECTOR OF EDUCATION
                KOLLAM-691001.

      4         THE DISTRICT EDUCATIONAL OFFICER
                PUNALUR - 691 305.

      5         THE CORPORATE MANAGER
                ARCHDIOCESE OF CHANGANACHERY, CHANGANACHERY-686101.

      6         THE HEADMASTER
                ST.MARY'S H.S., ARYANKAVU - 691 309, KOLLAM DISTRICT.

                R1-4 BY GOVERNMENT PLEADER



                SRI.P.M.MANOJ-GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9529 OF 2016            2

                           JUDGMENT

The petitioner, who is stated to have

been appointed as a Full-Time Menial (FTM

for short) in the services of the "St.Mary's

H.S.", Kollam - managed by the 5th respondent

- has approached this Court impugning Ext.P5

order of the Government, as per which, her

approval for appointment to the said post

between 06.08.2007 to 31.05.2011 has been

rejected on the ground that the Manager of

the School had not complied with the

directions in the Government Order bearing

number G.O(MS)No.46/06/Fin.dated 01.12.2006.

2. The petitioner says that, as per

the afore mentioned Government order, since

the School was a "newly opened one", there

was a stipulation that the Manager ought to

have appointed only protected hands, but

that this stipulation cannot stand against

her appointment because there were no

protected undeployed FTMs in the education

district nor had the Educational Authority

forwarded any list of such protected FTMs to

the Management before she had been

appointed. She also has an additional case

that in a "newly opened School", the

restriction imposed through the afore

mentioned Government Order is with respect

to teaching staff alone, while there is no

legal impediment in the appointment of non-

teaching staff.

3. The petitioner asserts that the

position has been made clear through the

judgments of this Court, which have been

produced on record as Exts.P6, P7 and P8.

She contends that Ext.P5 order is,

therefore, illegal and unlawful.

4. The learned Senior Government

Pleader - Shri.P.M.Manoj, argued in

response, that Ext.P5 cannot be found to be

in error, since the action of the Manager in

having appointed the petitioner without

accommodating a protected hand is contrary

to the Government Orders; and that,

therefore, her appointment cannot be

approved. He, therefore, prayed that this

writ petition be dismissed.

5. When I consider the afore rival

contentions, it is clear that the essential

disputation is as to whether there was any

undeployed protected hand available in the

district at the time when the petitioner was

appointed and whether a list of such persons

had been forwarded to the Manager by the

Educational Authorities at the relevant

time.

6. Ext.P5 order does not even whisper

about these aspects, but merely says that

the Manager did not appoint a protected hand

and therefore, that the appointment of the

petitioner is illegal.

7. I am, therefore, of the certain

view that Ext.P5 cannot find favour in law,

since it has been well settled by this

Court, through a series of judgments

including in Nadeera vs. State of Kerala

[2011(3) KLT 790] and Moosakutty Vs. DEO,

Wandoor (2009 (3) KLT 863) that it is only

if it is established that the Educational

Authorities had forwarded a list of

protected hands to the Management or if

there was any such protected hand awaiting

deployment, could the restriction in the

Government Order be applied. Since this

aspect has not been even considered in

Ext.P5, I am firm that the Government must

reconsider the whole issue, leading to

appropriate orders.

In the afore circumstances, I allow this

writ petition and set aside Ext.P5; with a

consequential direction to the Government to

reconsider the proposal for approval of the

petitioner as a Full-Time Menial in the

School in question, adverting to her

specific contention that there was no

undeployed protected Full-Time Menial

available in the educational district at the

time when she was appointed and that no such

list of protected hands had been forwarded

to the Manager by the educational

Authorities either.

The afore exercise shall be completed by

the Government, 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 three

months from the date of receipt of a copy of

this judgment.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/24.3.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 EXHIBIT P1. TRUE COPY OF THE APPOINTMENT ORDER DATED 06.08.2007.

EXHIBIT P2 EXHIBIT P2. TRUE COPY OF THE REVISION PETITION DATED 20.05.2014.

EXHIBIT P3 EXHIBIT P3. TRUE COPY OF THE GOVERNMENT LETTER DATED 08.12.2014.

EXHIBIT P4 EXHIBIT P4. TRUE COPY OF THE REVISION PETITION DATED 14.01.2015.

EXHIBIT P5 EXHIBIT P5. TRUE COPY OF THE GOVERNMENT LETTER DATED 14.12.2015.

EXHIBIT P6 EXHIBIT P6. TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.18986/2009.

EXHIBIT P7 EXHIBIT P7. TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.15702/2011.

EXHIBIT P8 EXHIBIT P8. TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.23433/2011.

EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.A NO.2290 OF 2015 DATED 25-07-2017.