Aparna Mohan vs The State Of Kerala
2021 Latest Caselaw 23273 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                      WP(C) NO. 23055 OF 2021
PETITIONER:

           APARNA MOHAN
           AGED 24 YEARS
           OFFICE ATTENDANT APPOINTEE
           RESIDING AT KANJIRAPPARA NALUKETTU,
           PRAKKANAM P.O., PATHANAMTHITTA DISTRICT,
           PIN - 689 643.

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



RESPONDENTS:

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

    2      THE DIRECTOR OF GENERAL EDUCATION
           GOVERNMENT OF KERALA, JAGATHY P.O.,
           THIRUVANANTHAPURAM - 695 014.

    3      THE DISTRICT EDUCATIONAL OFFICER
           PATHANAMTHITTA, PATHANAMTHITTA P.O.,
           PIN - 683 645.

    4      THE ASSISTANT EDUCATIONAL OFFICER
           KOZHENCHERY, THEKKEMALA P.O.,
           PATHANAMTHITTA DISTRICT,
           PIN - 695 654.

    5      THE MANAGER
           M.G.U.P.SCHOOL, PRAKKANAM,
           PRAKKANAM P.O., PATHANAMTHITTA DISTRICT,
           PIN- 689 643.

           BY ADV K.N.GOVINDANKUTTY MENON
           SMT NISHA BOSE SR GOVERNMENT PLEADER
 WP(C) NO. 23055 OF 2021          2

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:


avs
 WP(C) NO. 23055 OF 2021                     3

                                    JUDGMENT

The petitioner contends that she was appointed as an Office Attendant in

the MGUP school, Prakkanam, an aided school under the management of the

5th respondent on compassionate grounds, consequent to the death of her

mother. However, the proposal of approval of her appointment was rejected

on the ground that since the school is an uneconomic one, the vacancy could

have been filled up only on a daily wage basis and not by appointing a

permanent staff.

2. The aforesaid order was challenged by the petitioner by preferring

W.P.(C) No.2244/2020 before this Court. By judgment dated 20.1.2021, a copy

of which is produced as Ext.P16, this Court had set aside the order dated

12.06.2018 and directions were issued to the Government to reconsider the

case of the petitioner taking note of the statutory right under Section 51B

Chapter XIVA of the KER.

3. The petitioner contends that her request was thereafter considered

and the same was again rejected by Ext.P18 order. While rejecting the request,

the concerned respondent went on to hold that the appointment of the

petitioner being on 01.08.2017, the provisions of the Ext.P5 circular which is

dated 06.11.2012 would be applicable and if that be the case, the appointment

could be made only on a daily wage basis. The aforesaid order is under

challenge in this writ petition, which is filed seeking the following reliefs:

i) To issue a writ of mandamus, order or direction, directing the 4th

respondent to approve the appointment of the petitioner as Office Attendant

on regular scale of pay basis in the concerned school, M.G.U.P School,

Prakkanam from her date of appointment on 01.08.2017.

ii) To issue a writ of certiorari or any other order quashing Exhibit P5 and P11

circulars and Exhibit P18 order to the extent it rejects compassionate

appointment on regular scale of pay basis, under Rule 51B, Chapter XIV A,

KER.

4. Sri.V.B.Premachandran, the learned counsel for the petitioner

submitted that Ext.P16 judgment was challenged by the respondents and by

common judgment dated 10.11.2021 in W.A.No.1358/2021, the appeal was

rejected by this Court holding that the stand taken by the educational

authorities/Government that the post of Peon/Office Attendant in uneconomic

UP schools can be filled only on a daily wage basis is not unsustainable. It was

further held that as long as there is a vacancy for Peon/Office Attendant and

the post is not one which is likely to be abolished in new Staff fixation

conducted in the school, the appointment made to the post had to be approved

on a regular scale of pay and not on a daily wage basis. It was further held

that when the statutory provisions clearly mandate that there has to be a post

of Peon/Office Attendant in a UP School and there were in fact vacancies of

Peon/Office Attendant in a school in question which were filled by candidates

who is eligible for the post, the statutory benefit of a regular scale of pay

cannot be taken away by a Government circular.

5. I have heard the learned Government Pleader and I have considered

the submissions.

6. While disposing W.A.No. 1358/2021, this Court had occasion to hold

as follows in paragraph No. 8 of the judgment.

"The upshot of the above discussion is that we find the stand of the

Educational Authorities/Government that the post of Peon/Office

Attendant in aided uneconomic U.P. Schools can be filled only on

daily wage basis to be legally unsustainable. So long as there is a

vacancy to an established post of Peon/Office Attendant, and the

post is not one which is likely to be abolished in any staff fixation

conducted in the school, the appointments made to the post have to

be approved on regular scale of pay and not on daily wage basis."

7. In that view of the matter, Ext.P18 order will stand set aside. There

will be a direction to the 4th respondent to approve the appointment of the

petitioner as Office Attendant on regular scale of pay basis in the M.G.U.P

School, Prakkanam from the date of appointment i.e., 01.08.2017 and disburse

all consequential benefits that the petitioner is entitled to. The benefits to

which the petitioner is entitled to shall be disbursed within a period of four

months from today.

The writ petition is disposed of.

RAJA VIJAYARAGHAVAN V JUDGE IAP

APPENDIX OF WP(C) 23055/2021

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE APPLICATION DATED 12/6/2017 SUBMITTED BY PETITIONER BEFORE THE HEADMISTRESS OF THE 5TH RESPONDENT'S SCHOOL.

Exhibit P2 TRUE COPY OF THE LETTER OF THE 5TH RESPONDENT MANAGER DATED 1/8/2017 ADDRESSED TO THE 4TH RESPONDENT A.E.O., INTIMATING THE APPOINTMENT OF THE PETITIONER.

Exhibit P3 TRUE COPY OF THE APPOINTMENT LETTER DATED 1/8/2017 ISSUED BY 5TH RESPONDENT.

Exhibit P4 TRUE COPY OF THE LETTER NO.F/2680/2017 DATED 30/8/2017 SENT BY 4TH RESPONDENT.

Exhibit P5 TRUE COPY OF THE CIRCULAR NO.58604/J2/12 GEN. EDN. DATED 6/11/2012.

Exhibit P6 TRUE COPY OF THE ORDER NO.B1/7223/2017 DTD.

13/10/2017 OF THE 4TH RESPONDENT.

Exhibit P7 TRUE COPY OF THE APPEAL DATED 13/11/2017 FILED BY 5TH RESPONDENT MANAGER BEFORE THE 2ND RESPONDENT.

Exhibit P8 TRUE COPY OF THE GOVERNMENT ORDER G.O.NO.

(P) 12/99 P & AID RD DATED 24/5/1999.

Exhibit P9 TRUE COPY OF THE ORDER NO.F3/8527/2017/DPI/K.DIS. DATED 11/5/2018 OF THE 2ND RESPONDENT.

Exhibit P10 TRUE COPY OF THE ORDER NO.N2/122/2018/GEN.

EDN. DEPT. DATED 16/4/2019 ISSUED BY THE 1ST RESPONDENT.

Exhibit P11 TRUE COPY OF THE ORDER G.O.(MS) NO.83/2018/GEN.EDN. DATED 12/6/2018, ISSUED BY THE 1ST RESPONDENT.

Exhibit P12 TRUE COPY OF THE PETITION DATED 21/5/2019 FILED BY PETITIONER BEFORE THE HON'BLE

MINISTER FOR EDUCATION.

Exhibit P13 TRUE COPY OF THE LETTER NO.N2/122/2018/GEN.EDN. DTD. 29/11/2019, ISSUED BY THE 1ST RESPONDENT.

Exhibit P14 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 P15 TRUE COPY OF THE ORDER NO.C/1669/2014/K.DIS. DATED 30/4/2014 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, ADOOR.

Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 20/1/2021 IN WP(C) NO.2244/2020 OF THIS HON'BLE COURT.

Exhibit P17 TRUE COPY OF THE ARGUMENT NOTE DATED 22/3/2021 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P18 TRUE COPY OF THE ORDER DATED 31/8/2021 OF THE 1ST RESPONDENT.

Exhibit P19 TRUE COPY OF THE ORDER NO.AF/2455/2021 DATED 6/10/2021 OF THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS:

NIL