Kerala High Court
Brijin. P vs The State Of Kerala on 31 March, 2023
WP(C) NO. 20220 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
WP(C) NO. 20220 OF 2021
PETITIONER/S:
BRIJIN. P
AGED 26 YEARS
S/O BALAN P, FULL TIME MENIAL , V.V.M H.S.S,
MARKKARA, MARAKKARA P.O, MALAPPURAM-676553, RESIDING
AT POTTALATHIL HOUSE, TRIKKULAM, THIRURANGADI P.O,
MALAPPURAM-6763063
BY ADVS.
J.G.SYAMNATH
S.ANEESH
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF
GENERAL EDUCATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR GENERAL OF EDUCATION
DIRECTORATE OF GENERAL EDUCATION, JAGATHY P.O,
THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
DOWNHILL P.O, MALAPPURAM-676519.
4 THE DISTRICT EDUCATION OFFICER
CIVIL STATION, TIRUR P.O, MALAPPURAM-67601.
5 THE MANAGER
VVM HSS MARAKKARA, MARAKKARA P.O, MALAPPURAM-676553.
6 THE HEADMASTER
VVM HSS MARAKKARA, MARAKKARA P.O, MALAPPURAM-676553.
7 HARIDAS VALANCHERRY
WP(C) NO. 20220 OF 2021 2
FULL TIME MENIAL, VVM HSS MARAKKARA, MARAKKARA P.O,
MALAPPURAM-676553.
BY ADVS.
S.KRISHNA
ADVOCATE GENERAL OFFICE KERALA
OTHER PRESENT:
SRI.K.M.FAISAL, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 20220 OF 2021 3
P.V.KUNHIKRISHNAN, J
---------------------------------------
W.P.(C) No. 20220 of 2021
--------------------------------------
Dated this the 31st day of March, 2023
JUDGMENT
The above writ petition is filed with following prayers :
i) "To call for the records leading to Exhibits P3, P7 and
P14 and quash the same by the issuance of a Writ of Certiorari.
ii) To issue a Writ of Mandamus directing respondents 1 to 5
to disburse the salary of the petitioner from 15.07.2018 to
01.05.2019 and from 01.06.2020 along with all monetary
benefits due to him forthwith.
iii) To issue a Writ of Mandamus directing the 5th
respondent to promote the petitioner to the existing vacancy in
the post of Office Attendant existing in the school since
02.05.2019.
iv) To declare that the retrenchment of the petitioner for
want of vacancy of Full Time Menial as per Exhibit P3 letter is
highly illegal and arbitrary.
v) To declare that the petitioner is entitled to be promoted
as Office Attendant in the existing vacancy.
vi) To grant such other relief as this Hon'ble Court deems fit
and proper to grant." [SIC]
2. The petitioner is working as Full Time Menial under
the 5th respondent at VVM HSS, Marakkara. According to the
petitioner, he was appointed in the promotion vacancy of the
7th respondent who was promoted to the post of HSA
(Malayalam). Thereafter, during the staff fixation for the year
2018-19, one post of HSA was reduced. However, the 7 th
respondent was not reverted to the post of Full Time Menial
and allowed to continue in the post of HSA (Malayalam) until
05.06.2019 is the submission. After the reopening of the school
on 06.06.2019, a letter was issued by the Manager to the
Headmaster reverting the 7th respondent to the post of Full
Time Menial and retrenching the petitioner for want of
vacancy. It is the case of the petitioner that the said order was
not intimated to the petitioner. The petitioner is continuously
working in the post of Full Time Menial without break is the
submission. The 2nd respondent has rejected the appeal
submitted by the Manager seeking retention of the 7th
respondent in the post of HSA (Malayalam) with certain
observations that are prejudicial to the claim of the petitioner
vide Ext.P7 is the submission. Ext.P7 order has been issued
without issuing notice to the petitioner is the submission.
Although the petitioner submitted Ext.P8 statutory appeal and
Ext.P9 representation before the 1st respondent and the same
was considered by the Government and dismissed the same as
per Ext.P14. It is the case of the petitioner that even though in
Ext.P14, it is stated that the petitioner was heard, a perusal of
Ext.P13 will show that it is an order passed without giving an
opportunity of hearing to the petitioner. The petitioner also
submitted that the appointment of the 7th respondent is a fresh
appointment and hence, in the light of the principle laid down
by this Court in Krishnan v. Muraleedharan [2000 KHC
628], the petitioner cannot be retrenched by reverting the 7 th
respondent to the post of FTM because the appointment of the
7th respondent is a fresh appointment. Hence, this writ petition.
3. Heard the learned counsel for the petitioner and the
learned Government Pleader.
4. This Court perused Ext.P13 which is the hearing
notice issued by the 1st respondent. In Ext.P13, it is clearly
stated that the hearing is scheduled on 14.07.2021 at 2.30 pm,
but Ext.P14 order is passed on 30.06.2021. Even though in
Ext.P14, it is stated that the petitioner was heard in Google
Meet, I am of the opinion that in the light of Ext.P13, there is
some force in the argument of the petitioner that Ext.P14 is an
order passed without giving sufficient opportunity of hearing.
On that ground itself, Ext.P14 can be set aside. Moreover, the
petitioner has got a case that the 7th respondent is appointed
as a fresh hand and not as a promotee. In such circumstances,
the 7th respondent cannot be reverted to the post of Full Time
Menial, in the light of the principle laid down by this Court in
Krishnan's case (supra). I do not want to make any further
observation about the same. Since the matter is remanded to
the 1st respondent, the 1st respondent will reconsider the
matter and will also consider whether the dictum laid down in
Krishnan's case (supra) is applicable in the facts and
circumstances of this case.
Therefore, this writ petition is allowed in the following
manner :
1) Ext.P14 is set aside.
2) The 1st respondent is directed to reconsider the matter
after giving sufficient opportunity of hearing to the
petitioner and the 7th respondent as expeditiously as
possible at any rate, within four months from the date of
receipt of a stamped certified copy of this judgment.
3) While passing orders, the 1st respondent will also consider
the applicability of the principle laid down by this Court in
Krishnan's case (supra)
4) The petitioner will produce a stamped 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) 20220/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ORDER DATED 01.06.2017 ISSUED
BY THE 5TH RESPONDENT.
Exhibit P2 TRUE COPY OF ORDER DATED 01.06.2017 ISSUED
BY THE 5TH RESPONDENT.
Exhibit P3 TRUE COPY OF LETTER DATED 06.06.2019
ISSUED BY THE 5TH RESPONDENT TO THE 6TH
RESPONDENT.
Exhibit P4 TRUE COPY OF REPRESENTATION DATED
22.09.2020 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF JUDGMENT DATED 14.01.2021 IN
WPC NO.24351 OF 2020.
Exhibit P6 TRUE COPY OF JUDGMENT DATED 14.09.2020 IN
WPC NO.18734 OF 2020.
Exhibit P7 TRUE COPY OF ORDER DATED 23.01.2021 ISSUED
BY THE 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF REVISION PETITION DATED
06.02.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
Exhibit P9 TRUE COPY OF REPRESENTATION DATED
08.02.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
Exhibit P10 TRUE COPY OF JUDGMENT DATED 11.02.2021 IN
WPC NO.3560 OF 2021.
Exhibit P11 TRUE COPY OF JUDGMENT DATED 09.03.2021 IN
WPC NO.6114 OF 2021.
Exhibit P12 TRUE COPY OF HEARING NOTICE DATED
22.03.2021 ISSUED BY THE 1ST RESPONDENT.
Exhibit P13 TRUE COPY OF HEARING NOTICE DATED
11.06.2021 ISSUED BY THE 1ST RESPONDENT.
Exhibit P14 TRUE COPY OF ORDER DATED 30.06.2021 ISSUED
BY THE 1ST RESPONDENT.
Exhibit P15 TRUE COPY OF CIRCULAR DATED 19.11.2018
ISSUED BY THE 1ST RESPONDENT.
