Kerala High Court
Shainy P.P vs State Of Kerala on 6 July, 2022
WP(C) NO. 24675 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 24675 OF 2021
PETITIONER/S:
SHAINY P.P.
AGED 38 YEARS
D/O.VELAYUDHAN, NAMBIARTHODI HOUSE,
NEAR M.S.P.HOSPITAL,
MALAPPURAM, MALAPPURAM DISTRICT.
BY ADVS.
BABU S. NAIR
SMITHA BABU
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT, PALAYAM, TRIVANDRUM,
PIN-695001.
2 THE DIRECTOR,
GENERAL EDUCATION DEPARTMENT, JAGATHY,
THIRUVANANTHAPURAM DISTRICT, PIN-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
KOTTAPPADY, DOWN HILL, MALAPPURAM,
MALAPPURAM DISTRICT,PIN-676519.
4 THE DISTRICT EDUCATIONAL OFFICER
B2 BLOCK CIVIL STATION, MALAPPURAM,
MALAPPURAM DISTRICT,PIN-676505.
5 THE MANAGER,
M.S.P.HIGHER SECONDARY SCHOOL,
KOZHIKODE- PALAKKAD HIGHWAY, UP HILL,
MALAPPURAM DISTRICT,PIN-676504.
WP(C) NO. 24675 OF 2021 2
BY ADV ADVOCATE GENERAL OFFICE KERALA
SMT. NISHA BOSE, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 24675 OF 2021 3
JUDGMENT
Being aggrieved by the refusal on the part of the respondents in
approving the appointment of the petitioner who worked as UPST
(Temporary) and in paying salary to her for the period from 25.06.2018 to
31.12.2018, the petitioner is before this Court with this writ petition.
2. From the records made available before this Court, it appears that
the petitioner herein was appointed as UPST (temporary) in the MSP Higher
Secondary School, Malappuram, on a daily wage basis as per Ext.P1 order.
She worked as such from 25.06.2018 to 31.12.2018. The records reveal that
the vacancy had arisen on account of the promotion of a certain Abdul
Rasheed, who was promoted as HSA on 18.06.2018. Ext.P2 reveals that the
Manager, MSP Higher Secondary school, Malappuram, who is the
Commandant of the police has made a proposal to the District Education
Officer (DEO) seeking approval of appointment of the petitioner. However,
the same was rejected by Ext.P2 order on the ground that as per paragraph
2(iv) of Government Circular No.J2/951951/2016 dated 19/11/2016, a
protected teacher has to be appointed in long term vacancy. Though the
Commandant in his capacity as the Manager preferred an appeal before the
Deputy Director of Education, the same was rejected by Ext.P3 order. Later,
an appeal was preferred before the Director of General Education (DGE), but
the same stands rejected by Ext.P7 order. The petitioner asserts, by
referring to Ext.P5, that persons who were similarly placed as the petitioner
herein were paid their salary, but the petitioner was discriminated against.
It is in the afore circumstances that this writ petition is filed seeking the
following reliefs:
i. Issue a writ of mandamus or any other appropriate writs,
orders or directions commanding the respondents to approve the
appointment of the petitioner as UPST and to pay the salary due to
petitioner from 25/06/2018 to 31/12/2018.
ii. Issue a writ of mandamus or any other appropriate writs,
orders or directions commanding the 4th respondent manager to
pay salary to the petitioner under Chapter III Rule 7(4) of the
Kerala Education Rules, 1959;
iii. Grant such other reliefs as this Hon'ble Court may deem
fit and proper in the circumstances of the case.
iv. Call for the entire records leading to Exhibits P2,P3 and
P7 and quash the same by the issuance of a writ of certiorari or
any other appropriate writs orders or directions;
3. Smt. Smitha Babu, the learned counsel appearing for the petitioner
submitted that the fact that the petitioner had worked as UPST (Temporary)
for the period from 25.6.2018 to 31.12.2018 at the MSP Higher Secondary
School and that she was appointed when a promotional vacancy had arisen
is undisputed. It is also not disputed that no protected teachers were
available to fill the said vacancy. It was in order to protect the interest of
the students that the petitioner was appointed to the said vacancy. This fact
is evident from Ext.P6 preferred by the Manager, who is a Government
servant. Some delay would have occurred in filling up the vacancy by
complying with the procedure and that prompted the Manager to appoint
the petitioner. It is further submitted that it is undisputed that no salary was
paid for the period that the petitioner had worked. Reference is also made to
Ext.P6 appeal and it is submitted that teachers similarly placed as the
petitioner, who were appointed on a temporary basis, were disbursed with
their salary.
4. The learned Government Pleader submitted that the appointment
was made against a regular vacancy. The appointment of the petitioner was
on a daily wage basis and therefore, the respondents were justified in
refusing approval.
5. I have considered the submissions advanced and have perused the
records.
6. It appears that a promotion vacancy arose in the MSP Higher
Secondary School, Malappuram on 25.6.2018 when Sri. Abdul Rasheed was
working as UPST was promoted as HSA on 18.6.2018. The Commandant,
MSP, Malappuram, who was functioning as the Manager, appointed the
petitioner on a daily wage basis. The reason which persuaded him to
appoint the petitioner is evident from Ext.P6. As per Circular No.
J2/951951/16 dated 19.11.2016, protected teachers ought to have been
appointed in the vacancy that had arisen. However, Ext.P6 preferred by the
Manager reveals that no protected teachers were available. Furthermore, the
Manager has also stated that filling up the vacancy by following the
procedure would have entailed some delay. From Ext.P5 it is evident that the
DEO had initially refused to grant consent to appoint the petitioner on a daily
wage basis which was taken up in appeal and the Deputy Director had
reversed the same. It is undisputed that she worked from 25.6.2018 to
31.12.2018. From Ext.P5 submitted by the DEO before the Human Rights
Commission, it appears that insofar as one Muneera Beegam, K.Sreemathi,
Shifana.C.K. are concerned, as their appointment was in leave vacancies and
for shorter periods, the respondents have granted approval to their
appointments. The respondents ought to have noticed that the petitioner is
not at fault and it was for the justifiable reason that she was appointed to
save the interest of the students by the Manager who was a Government
servant, particularly when there were no protected teachers to fill up the
vacancy.
7. In that view of the matter, I am unable to sustain Exts.P2, P3 and
P7 orders. There will be a direction to the respondents to approve the
appointment of the petitioner as UPST and pay salary due to the petitioner
for the period from 25.06.2018 to 31.12.2018.
This writ petition will stand disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
APPENDIX OF WP(C) 24675/2021
PETITIONER(S) EXHIBITS :
Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER
ISSUED TO THE PETITIONER DATED
27/06/2018.
Exhibit P2 TRUE COPY OF THE ORDER NO.B3/12170/2019
BY DEPUTY EDUCATION OFFICER DATED
03/10/2019.
Exhibit P3 TRUE COPY OF THE ORDER ISSUED BY THE
DEPUTY DIRECTOR OF EDUCATION
DATED,16/01/2021
Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER TO THE HUMAN RIGHTS
COMMISSION DT.21.4.21.
Exhibit P5 TRUE COPY OF THE REPORT OF THE DISTRICT
EDUCATION OFFICER, MALAPPURAM
DATED,3.8.2021.
Exhibit P6 TRUE COPY OF THE APPEAL FILED BY THE 5TH
RESPONDENT TO THE 2ND RESPONDENT DATED 3-
8-2021.
Exhibit P7 TRUE COPY OF THE ORDER NO.EM2/234394/2021
DATED 6-11-2021 OF THE ADDITIONAL
DIRECTOR OF GENERAL EDUCATION.
RESPONDENT(S) EXHIBITS : NIL
