Kerala High Court
Mushthaque.V vs State Of Kerala on 23 March, 2023
WP(C) NO. 33621 OF 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
WP(C) NO. 33621 OF 2019
PETITIONER/S:
MUSHTHAQUE.V
AGED 42 YEARS
H.S.A.(PHYSICAL SCIENCE),I.U.HIGHER SECONDARY
SCHOOL,PARAPPUR,MALAPPURAM DISTRICT.
BY ADVS.
GEORGE ABRAHAM
SHRI.JOBY D JOSEPH
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,DEPARTMENT
OF GENERAL EDUCATION,SECETARIAT,THIRUVANANTHAPURAM-
695001.
2 DIRECTOR OF GENERAL EDUCATION,
JAGATHY,THIRUVANANTHAPURAM-695014.
3 DISTRICT EDUCATIONAL OFFICER,
THIRURANGADI,MALAPPURAM-676306.
4 DISTRICT EDUCATIONAL OFFICER,
THIRURANGADI,MALAPPURAM-676306.
5 MANAGER,I.U.HIGHER SECONDARY SCHOOL,
OARAOOYR.P.O,KOTTAKKAL-676503. MALAPPURAM DISTRICT.
OTHER PRESENT:
SMT.NISHA BOSE, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 33621 OF 2019 2
P.V.KUNHIKRISHNAN, J
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W.P.(C) No. 33621 of 2019
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Dated this the 23rd 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 quash Exhibit P-7 and P9 orders
issued by the respondents 1 to 3.
(ii) to issue a Writ of Mandamus; or any other
appropriate writ, order or direction, directing the
respondents 1 to 4 to approve the appointment of the
petitioner as H.S.A. (Physical Science) for the period from
16/9/2002 to 14/7/2004.
(iii) To declare that the vacancy available with the 5 th
respondent school consequent to the leave availed by
Sri.A.C. Ashraf has to be filled up by an HSA (Physical
Science) teacher and not by an HSA (English) teacher .
(iv) To grant such other and further reliefs as this Hon'ble
Court may consider just and proper in the facts and
circumstances of the case." [SIC]
2. The petitioner was appointed as HSA (Physical
Science) on 16.09.2002. The said appointment was to a leave
vacancy available in school is the submission. Later, he was
appointed again on 15.07.2004 and the said appointment was
approved by the department. The petitioner is continuing in
the school as HSA (Physical Science) with approval. The
Department rejected the approval of appointment of the
petitioner during the period from 16.09.2002 to 14.07.2004
on the reason that the Manager ought to have appointed an
HSA (English) instead of appointing the petitioner. It is the
case of the petitioner that the Government passed GO(MS)
No. 11/22-2/Gen.Edn dated 07.01.2002 and the said
Government Order was initially set aside by this Court by
virtue of the dictum laid down in Suguna Prakash v. State
of Kerala [2002 (3) KLT 488]. Subsequently, the Division
Bench set aside that judgment and restored the original
order. It is the case of the petitioner that the appointment of
the petitioner was during the interregnum period. Hence, the
petitioner approached this Court by filing W.P.(C.) No.
23011/2009. This Court directed to consider this aspect by
the Government. The grievance of the petitioner is that the
Government has not considered the matter as directed in
Ext.P8. Hence, this writ petition.
3. Heard the learned counsel for the petitioner and the
learned Government Pleader.
4. The main grievance of the petitioner is that the
Government has not considered the issue in a proper
perspective in Ext.P9, in the light of Ext.P8 judgment. It will
be better to extract the relevant portion of Ext.P8 judgment.
"3. Contention of the petitioner is that GO(MS) No.11/02
was set aside by this court in the decision in Suguna
Prakash v. State of Kerala [2002 (3) KLT 488] holding that
Government Order creating new cadre of H.S.A (English)
cannot be enforced without there being corresponding
amendment in the Kerala Education Rules. The said decision
was rendered on 02/08/2002. But subsequently a Division
Bench of this court had reversed the above said decision as
reported in Baiju v. Suguna Prakash [2003(2) KLT 182].
The said decision was rendered on 16/11/2002. Since the
appointment of the petitioner on 16/09/2002 was during the
interregnum period, when validity of GO(MS) No.11/02
remained nullified, appointment of the petitioner is liable to
be approved, is the contention. It is pointed out by the learned
counsel appearing for the petitioner that on various occasions
as illustrated in Exts.P5 to P8 the Government have
sanctioned approval of various appointments on the basis that
GO(MS) No.11/02 which stood set aside as per the decision of
this court reported in [2002 (3) KLT 488] (supra).
4. Question whether appointment of the petitioner
for the period from 16/09/2002 to 14/07/2004 can be
approved on the basis that, as on the date of appointment
GO(MS.)No.11/02 stood set aside by this court, is a matter
which needs to be considered by the Government, at the first
instance. Therefore this court is of the opinion that direction
for fresh consideration of the matter by the Government
would suffice to meet the ends of justice.
5. Under the above mentioned circumstances this writ
petition is hereby disposed of by quashing Ext.P4 order to the
extent it declined approval of the appointment of the
petitioner. The Revision Petition filed by the 5th respondent
in this regard shall be reconsidered by the Government and
shall be disposed of afresh, after affording opportunity of
personal hearing to the petitioner, the 5th respondent and the
Educational Officer concerned. The Government shall take
into consideration of the contentions mentioned above and a
decision shall be taken considering the question with respect
to the effect of the Division Bench decision reported in [2003
(2) KLT 182] (supra). While taking such decision the
Government should also consider as to whether any approval
was granted to similarly situated persons in any of the orders.
6. A decision in this regard shall be taken at the earliest
possible, at any rate within a period of two months from the
date of receipt of copy of this judgment.
7. It is made clear that this court has not expressed any
opinion with respect to applicability of GO(MS.) No.11/02/GE
dated 07/01/2002 as on the relevant date of appointment of
the petitioner. The Government will be at liberty to take an
independent decision in the matter considering all legal and
factual aspects."
5. Ext.P9 is the consequential order passed by the
Government. It will be better to extract the relevant portion
of Ext.P9 judgment.
"The Government have examined the case in detail.
Sri. Musthaque was not a 51 A claimant and there is no post
in HSA (PS) during 2002-03 to retain him. As per the circular
No. 67679/J1/2002/GEdn dated 26/2/2002, the one who was
not a-51A/43 claimant cannot be regularized in the post of
HSA (English). Hence the appointment in respect of Sri
Musthaque. V for the period from 16/9/2002 to 14/7/2004 is
rejected and the judgment dated 7/4/2015 is complied with
accordingly."
6. I am of the considered opinion that the Government
has not considered the issue which is directed to be decided
by this Court in Ext.P8 judgment. According to me, a
reconsideration by the Government is necessary in this case,
in the light of the specific directions issued by this Court in
Ext.P8 judgment. Therefore, this writ petition is to be
allowed, Ext.P9 can be set aside and the Government can be
directed to reconsider the matter.
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 the specific directions in Ext.P8 judgment as
expeditiously as possible, at any rate, within four months
from the date of receipt of a certified copy of this
judgment.
3) The petitioner will produce a certified copy of this
judgment along with the copy of this writ petition before
the 1st respondent for compliance.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 33621/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED
16/9/2002 ISSUED BY THE MANAGER.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED
15/7/2004.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED
1/8/2007.
EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED
1/9/2015.
EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER
DATED 28/8/2002.
EXHIBIT P6 TRUE COPY OF THE STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 2004-05.
EXHIBIT P7 TRUE COPY OF THE ORDER OF THE DIRECTOR OF
PUBLIC INSTRUCTIONS DATED 17/8/2004.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN
W.P(C)NO.23011/09 DATED 7/4/2015
EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER
G9(RT)NO.267/2016/GEN EDN.DATED
21/1/2016.
EXHIBIT P10 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED
FROM THE OFFICE OF THE HON'BLE MINISTER
FOR EDUCATION DATED 10/2/2016.
