Kerala High Court
Shaheed Vattakkandathil vs The State Of Kerala on 13 March, 2023
WP(C) NO. 4150 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
WP(C) NO. 4150 OF 2021
PETITIONER/S:
SHAHEED VATTAKKANDATHIL,
AGED 38 YEARS
S/O.ISMAIL, HST (NS), CHENNAMANGALLUR HSS,
CHENNAMANGALLUR-KOZHIKKODE-673 602, (RESIDING AT
VATTEKANDATHIL HOUSE, CHENNAMANGALLUR, MUKKOM-673
602).
BY ADVS.
T.T.MUHAMOOD
SRI.V.E.ABDUL GAFOOR
SRI.A.MOHAMMED SAVAD
SRI.C.Y.VINOD KUMAR
SHRI.T.R.VISHNU
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHI,
THIRUVANANTHAPURAM-695 001.
3 THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DDE, KOZHIKKODE.
4 THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DEO, THAMARASSERY, WAYANAD-673 573.
5 THE MANAGER, CHENNAMANGALLUR HSS,
CHENNAMANGALLUR-KOZHIKODE-673 602.
WP(C) NO. 4150 OF 2021 2
BY ADVS.
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
OTHER PRESENT:
SMT.NISHA BOSE SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 4150 OF 2021 3
P.V.KUNHIKRISHNAN, J
---------------------------------------
W.P.(C) No.4150 of 2021
--------------------------------------
Dated this the 13th day of March, 2023
JUDGMENT
The above writ petition is filed with following prayers :
"i. "To issue a writ of certiorari or any other appropriate writ
order or direction to call upon the records pertaining to
Exhibits-P2, P6, P7 and p9 and quash the same.
ii. To issue a writ of mandamus or any other appropriate
writ order or direction to 4th respondent to approve the
transfer of petitioner as peon with effect from 13.1.2014 in the
retirement vacancy of Gnanaprakasam on 30.11.2013 and to
pay the arrears of salary within such time fixed by this Hon'ble
Court.
iii. Such other reliefs which this Hon'ble Court may deem fit
and proper in the interest of justice.
iv. Declare that sub-rule (4) of Rule 7 of Chapter XXI
substituted as per the Amendment Rules is inconsistent with
the Kerala Education Act 1958, Right of Children to Free and
Compulsory Education Act, 2009 and the various provisions of
the Kerala Education Rules 1959, the Right of Children to Free
and Compulsory Education Rules 2011 and hence ultra vires
and unconstitutional.
v. To issue a writ of certiorari or other appropriate writ
order or direction, quashing sub-rule (4) of Rule 7 of Chapter
XXI KER substituted as per the Amendment Rules brought in by
SRO. No. 752/2016 (G.O. (P) No 199/2016/G.Edn dated
3.12.2016) (Ext:P10)
vi. To issue a writ of certiorari or any other appropriate writ
order or direction, quashing Ext:P11 to the extent of imposing
restrictions in filling up the leave vacancies.
And
vii. such other writ, order or direction as this Hon'ble Court
may deems fit in the facts and circumstances of the case." [SIC]
2. The petitioner was appointed as HSA (Natural
Science) in Chennamangallur HSS, Chennamangallur from
01.06.2016 to 28.03.2019 against a leave vacancy. However,
the approval of the petitioner's appointment was rejected as
per circular No. 9151951/J2/16 dated 09.11.2016 by stating
that the leave vacancy exceeding three months have to be
filled up by protected hands from the academic year 2016-17
onwards. The appeal and revision submitted by the petitioner
are rejected. Hence, this writ petition is filed.
3. Heard the learned counsel for the petitioner and the
learned Government Pleader. Heard the learned counsel
appearing for the Manager also.
4. Today, when the matter came up for consideration,
the learned counsel for the petitioner takes me through
Ext.P12 [GO (P) No. 4/2021/G.Edn. dated 06.02.2021] in which
it is stated that such appointment can be approved with a rider
that the Manager has to execute an affidavit stating that in
subsequent vacancies, the protected teachers will be
appointed. The learned counsel for the Manager submitted
that the conditions in Ext.P12 will be fulfilled by the Manager.
If that is the case, I think Ext.P9 can be set aside and the
Government can be directed to reconsider the matter in the
light of Ext.P12 with notice to the petitioner and the Manager.
Therefore, this writ petition is allowed in the following
manner :
1) Ext.P9 is set aside.
2) The 1st respondent is directed to reconsider the
matter in the light of GO (P) No. 4/2021.G.Edn. dated
06.02.2021 (Ext.P12) after giving notice to the petitioner and
the 5th respondent as expeditiously as possible, at any rate
within four months from the date of receipt of the certified
copy of this judgment.
3) The petitioner will produce a certified copy of this
judgment along with a copy of this writ petition before the 1 st
respondent for compliance.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 4150/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER ISSUED BY
THE 5TH RESPONDENT ON 01.06.2016.
EXHIBIT P2 TRUE COPY OF GO(RT) NO.1848/2016/G.EDN.
DATED 07.06.2016 SANCTIONING LEAVE WITHOUT
ALLOWANCE TO SRI.MOHAMED SHIJAD FOR STUDY
PURPOSE FROM 01.04.2016 TO 28.03.2019.
EXHIBIT P3 TRUE COPY OF ORDER NO.K.DIS/B3/3650/2016
DATED 20.05.2017 ISSUED BY THE 4TH
RESPONDENT 2017-18 DATED 30.08.2017 ISSUED
BY THE HEADMASTER.
EXHIBIT P4 TRUE COPY OF APPEAL DATED 16.06.2017
SUBMITTED BY THE 5TH RESPONDENT BEFORE THE
3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF PETITIONER FOR CONDONATION OF
DELAY DATED 20.05.2017 SUBMITTED BY THE
5TH RESPONDENT BEFORE THE3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF ORDER NO.B1/15192/17/K.DIS
DATED 28.11.2017 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P7 TRUE COPY OF ORDER
NO.EM(3)/16766/2018/DPI/K.DIS DATED
14.01.2019 ISSUED BY THE ADDITIONAL
DIRECTOR OF GENERAL EDUCATION DATED
31.05.2019 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF REVISION PETITION SUBMITTED
BY THE 5TH RESPONDENT BEFORE THE
GOVERNMENT ON 28.02.2019.
EXHIBIT P9 TRUE COPY OF GOVERNMENT LR.
NO.A2/89/2019/G.EDN DATED 18.11.2019.
EXHIBIT P10 TRUE COPY OF GO(P) NO.199/2016/G.EDN DATED
03.12.2016 DATED 14.12.2016 HAVE AMENDED
CERTAIN PROVISIONS IN THE KER W.E.F.
29.01.2016.
EXHIBIT P11 TRUE COPY OF CIRCULAR NO.951551/J2/16
DATED 09.11.2016 WITH TYPED COPY.
Exhibit P12 TRUE COPY OF THE GO(RT) NO.4/2021/G.EDN.
DATED 06/02/2021 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT.
