The Manager vs State Of Kerala
2024 Latest Caselaw 5437 Ker

Kerala High Court

The Manager vs State Of Kerala on 16 February, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
  FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
                  WP(C) NO. 12198 OF 2020


PETITIONER:

         D.D. SABHA HIGH SCHOOL
         KARIMPADAM, CHENDAMANGALAM.P.O,
         NORTH PARAVOOR, ERNAKULAM-683512,
         REPRESENTED BY ITS MANAGER.

         BY ADVS.
         SMT.M.U.VIJAYALAKSHMI
         SRI.BRIJESH MOHAN


RESPONDENTS:

    1    THE DISTRICT EDUCATIONAL OFFICER,
         ALUVA-683101.
    2    THE DEPUTY DIRECTOR OF EDUCATION
         CIVILSTATION, KAKKANAD,
         ERNAKULAM-682030.
         BY SMT.K.G.SAROJINI - GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2024, ALONG WITH WP(C).30064/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
  FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
                   WP(C) NO. 30064 OF 2022
PETITIONERS:

    1     THE MANAGER
          D.D.SABHA HIGH SCHOOL, KARIMPADAM,
          CHENDAMANGALAM.P.O,
          NORTH PARAVOOR, ERNAKULAM - 683512.
    2     ANUPAMA K.S,
          LOWER PRIMARY SCHOOL TEACHER,
          D.D.SABHA HIGH SCHOOL, KARIMPADAM,
          CHENDAMANGALAM.P.O, NORTH PARAVOOR,
          ERNAKULAM - 683512.
    3     ASWATHY C.B,
          LOWER PRIMARY SCHOOL TEACHER,
          D.D.SABHA HIGH SCHOOL, KARIMPADAM,
          CHENDAMANGALAM.P.O, NORTH PARAVOOR,
          ERNAKULAM - 683512.
    4     SIJITHA.P.S,
          UPPER PRIMARY SCHOOL TEACHER,
          D.D.SABHA HIGH SCHOOL, KARIMPADAM,
          CHENDAMANGALAM.P.O, NORTH PARAVOOR,
          ERNAKULAM 683512.
    5     INDU T,
          UPPER PRIMARY SCHOOL TEACHER,
          D.D.SABHA HIGH SCHOOL, KARIMPADAM,
          CHENDAMANGALAM.P.O, NORTH PARAVOOR,
          ERNAKULAM - 683512.
         BY ADVS.
         K.JAJU BABU (SR.)
         BRIJESH MOHAN
         M.U.VIJAYALAKSHMI
RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001.
    2     THE DIRECTOR OF GENERAL EDUCATION,
          OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,
          JAGATHY, THIRUVANANTHAPURAM-695 014.
    3     THE DEPUTY DIRECTOR OF EDUCATION,
 W.P.(C) Nos. 12198/2020 & 30064/2022

                                   ..3..



            OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
            KAKKANAD P.O, ERNAKULAM - 682030.
     4      THE DISTRICT EDUCATIONAL OFFICER,
            OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, MINI
            CIVIL STATION, ALUVA, ERNAKULAM - 683101.
            BY SMT.K.G.SAROJINI - GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.02.2024, ALONG WITH WP(C).12198/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) Nos. 12198/2020 & 30064/2022

                                    ..4..



                     MOHAMMED NIAS C.P., J.
                    ---------------------
                   W.P.(C) Nos. 12198 of 2020 &
                           30064 of 2022
            ---------------------------
                 Dated this the 16th day of February, 2024

                          JUDGMENT

W.P.(C) No.12198/2020. The petitioner is an Aided School

established prior to the introduction of the Kerala Education Act and

Rules. It is stated that the L.P.School started functioning in the year 1912,

the U.P.Section in the early 1960s and the High School Section started

functioning in the year 1982. Five buildings with 15 classrooms were

constructed prior to 1950, before the introduction of the KER. Twelve

buildings were constructed before 1988 and three more during 1989-90.

2. Being a Pre-KER school, permanent exemption from the

height specifications prescribed in Chapter IV Rule 6 of KER was

granted in respect of 17 buildings, including the office room, by the

second respondent on the recommendation of the first respondent on

17/04/1990 as evident from Ext.P1. Ext.P2 Government Order dated

16/12/1991 also reiterates the power of the second respondent for

granting such exemption. It was based on Ext.P1 that the staff fixation

orders were approved based on the fitness certificate issued from time to W.P.(C) Nos. 12198/2020 & 30064/2022

..5..

time. Ext.P3 is the staff fixation order for the year 2019-20. Ext.P4 is the

fitness certificate issued by the Assistant Engineer on 01/06/2020 with

respect to all the buildings.

3. It is stated that in the year 2019, the first respondent raised

an objection against the insufficiency of the height of the buildings during

the process of implementation of "Samanwaya", an E-governance

initiative of the Department. The petitioner gave Ext.P5 a letter enclosing

a copy of Ext.P1 that granted a permanent exemption. Notwithstanding

Ext.P5, the petitioner was directed to obtain renewal orders for Ext.P1

from the second respondent for updating in "Samanwaya", which was

also made available as per Ext.P6. Again, the first respondent gave a

report to the second respondent confirming that the ten buildings did not

have the required height but stated that exemption could be granted to the

buildings as per the Government Order dated 11/11/2019.

Notwithstanding Exts.P1 and P8, the second respondent passed Ext.P9,

finding that the buildings do not have the requisite height as mentioned in

the KER, and the request made by the petitioner in Ext.P6 for renewal of

the exemption concerning height was rejected. Petitioner challenges

Ext.P9 in this writ petition.

4. A counter affidavit has been filed by the person who issued W.P.(C) Nos. 12198/2020 & 30064/2022

..6..

the impugned order, mentioning that the second respondent had granted

exemption as per Ext.P1 and disregarding Ext.P8, stating that the

petitioner had not produced any documents at the time of hearing

conducted on 12/02/2020 for considering the application for exemption

for height as per the Government Order dated 11/11/2019, and rejected

the request of the petitioner in Ext.P6. It is to be noted that Ext.P9 did not

consider the impact of either Ext.P1 or Ext.P8 which granted exemption

as regards the height required under the provisions of the KER in terms

of the relevant Government Orders. The finding in Ext.P9 is without any

application of mind and also without taking into account the reasons

stated in Exts.P1 and P8 for granting the exemption. Since, Ext.P1 order

shows that it is a permanent exemption granted with respect to the

sufficiency of the height of the buildings, the need not have been renewed

each time as there was no question of the height varying nor is there any

allegation in that regard.

5. Learned Senior Counsel appearing for the petitioner also

brings to my notice the fact that the school has obtained a new building

permit dated 07/07/2023, Ext.P11 to construct a new building and that the

first respondent had issued an order dated 09/10/2023 granting sanction

for the construction which is evident from Ext.P13. It is also stated that W.P.(C) Nos. 12198/2020 & 30064/2022

..7..

once the construction is completed, as per Exts. P11 and P13, the Pre-

KER buildings, will not be required for accommodation. Learned Senior

Counsel submits that every attempt will be made to complete the

construction of the building in accordance with Exts.P11 and P13 at the

earliest. This is recorded.

6. Under such circumstances, as far as the buildings of the

petitioner's school are concerned, going by Exts.P1 and P8, the objection

as regards the height of the building cannot be sustained. Ext.P9 is

quashed, and accordingly, the writ petition is allowed.

7. W.P.(C) No.30064/2022. In this writ petition, the first

petitioner Manager seeks approval of petitioner Nos. 2 to 5, teachers

appointed in the school. The challenge in the writ petition is against

Exts.P1 to P9 and P14 to P22 orders to the extent they refused approval

of the appointments of petitioners 2 and 3 as LPSA and petitioners 4 and

5 as UPSA. It is seen from the impugned orders that the reason for

declining approval is the objection raised as regards the height of the

building and also on account of the pendency of W.P.(C) No.12198/2020.

Since the impugned order in W.P(C) No.12198/2020, Ext.P9 is quashed

and the said writ petition allowed, as a consequence, impugned orders in

W.P.(C) No.30064/2022 will also stand quashed. There will be a direction W.P.(C) Nos. 12198/2020 & 30064/2022

..8..

to the fourth respondent in W.P.(C) No.30064/2022 to consider the

question of approval of the appointments of petitioners 2 to 5 afresh and

in the light of the judgment in W.P.(C) No.12198/2020. Orders in this

regard shall be passed within a period of three months from the date of

receipt of a copy of this judgment. The attendant benefits to which the

teachers are entitled on their approval shall be paid within a further

period of one month from the date of approval.

The writ petitions are allowed as above.

Sd/-

MOHAMMED NIAS C.P. JUDGE

APA W.P.(C) Nos. 12198/2020 & 30064/2022

..9..

APPENDIX OF WP(C) 12198/2020

PETITIONER EXHIBITS Exhibit P11 TRUE COPY OF BUILDING PERMIT NO. A2-BA (237638) / 2023 DATED 7.7.2023 ISSUED BY THE SECRETARY OF CHENDAMANGALAM GRAMA PANCHAYATH Exhibit P12 TRUE COPY OF ORDER NO. TCPEKM/263/2022- C.D.DLS DATED 26.3.2022 ISSUED BY THE SENIOR TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, ERNAKULAM Exhibit P13 TRUE COPY OF ORDER NO. 2670/2023/D.E.O, DATED 9.10.2023 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 COPY OF THE FITNESS CERTIFICATE DATED 1.6.2020 ISSUED BY THE ASSISTANT ENGINEER, CHENDAMANGALAM GRAMA PANCHAYAT.

EXHIBIT P5 COPY OF THE LETTER DATED 6.11.2019 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P6 COPY OF THE LETTER NO.215/2019 DATED 23.11.2019 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P1 COPY OF THE ORDER NO.B5-8890/90-K. DIS DATED 17.04.1990 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 COPY OF THE REPORT NO.B6/695/2020 DATED 9.3.2020 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

EXHIBIT P9 COPY OF THE ORDER NO. B3/26413/2019/DDE/DDS DATED 25.5.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P10 COPY OF THE ORDER DATED 11.11.2019 VIDE G.O (Rt) NO.4770/2019 G.Edn ISSUED BY THE GOVERNMENT.

EXHIBIT P7 COPY OF THE WRITTEN SUBMISSION GIVEN BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 12.2.2020.

EXHIBIT P2 COPY OF G.O (RT) NO.3742/91/G.Edn. DATED 16/12/1991.

EXHIBIT P3 COPY OF THE STAFF FIXATION ORDER NO.

B4/46541/2019 DATED 18.07.2019 ISSUED BY THE 1ST RESPONDENT.

W.P.(C) Nos. 12198/2020 & 30064/2022

..10..

APPENDIX OF WP(C) 30064/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO. B4/2607/19/ K.DIS DATED 27-6-2019 ISSUED BY THE 4TH RESPONDENT.

Exhibit P2 TRUE COPY OF THE ORDER NO. B3/15873/2019/ DDE/DDS DATED 20-12-2019 ISSUED BY THE 3RD RESPONDENT.

Exhibit P3 TRUE COPY OF THE ORDER NO. B4/3798/2018/ K.DIS DATED 25-1-2019 ISSUED BY THE 4TH RESPONDENT.

Exhibit P4 TRUE COPY OF THE ORDER NO.B3/17713/ 2019/DDE/DDS DATED 20-12-2019 ISSUED BY THE 3RD RESPONDENT.

Exhibit P5 TRUE COPY OF THE ORDER NO. E.C.4/7351/ 2020/DGE/K.DIS DATED 23-11-2020 ISSUED BY THE 2ND RESPONDENT.

Exhibit P6 TRUE COPY OF THE ORDER NO. B4/2603/16/ K.DIS DATED 25-6-2019 ISSUED BY THE 4TH RESPONDENT.

Exhibit P7 TRUE COPY OF THE ORDER NO. B3/15657/2019/ DDE/DDS DATED 20-12-2019 ISSUED BY THE 3RD RESPONDENT.

Exhibit P8 TRUE COPY OF THE ORDER NO. B4/2612/19/ K.DIS DATED 25-6-2019 ISSUED BY THE 4TH RESPONDENT.

Exhibit P9 TRUE COPY OF THE ORDER NO. B3/15656/19/ DDE/DDS DATED 21-12-2019 ISSUED BY THE 3RD RESPONDENT.

Exhibit P10 TRUE COPY OF THE REVISION PETITION DATED 7.7.2020 FILED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P11 TRUE COPY OF THE REVISION PETITION DATED 7.7.2020 FILED BY THE 4TH PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P12 TRUE COPY OF THE REVISION PETITION DATED NIL FILED BY THE 5TH PETITIONER BEFORE THE 1ST RESPONDENT.

W.P.(C) Nos. 12198/2020 & 30064/2022

..11..

Exhibit P13 TRUE COPY OF THE G.O(RT)NO.3114/2021/G.EDN DATED 24-6-2021.

Exhibit P14 TRUE COPY OF THE ORDER NO. B4/21988/2021 DATED 13-9-2021 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER.

Exhibit P15 TRUE COPY OF THE ORDER NO. B4/21987/2021 DATED 13-9-2021 ISSUED BY THE 4TH RESPONDENT TO THE 3RD PETITIONER.

Exhibit P16 TRUE COPY OF THE ORDER NO. B4/21990/2021 DATED 13-9-2021 ISSUED BY THE 4TH RESPONDENT TO THE 4TH PETITIONER.

Exhibit P17 TRUE COPY OF THE ORDER NO. B4/21989/2021 DATED 13-9-2021 ISSUED BY THE 4TH RESPONDENT TO THE 5TH PETITIONER.

Exhibit P18 TRUE COPY OF THE ORDER NO. B3/214751/2021 DATED 20-4-2022 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.

Exhibit P19 TRUE COPY OF THE ORDER NO. B3/214752/2021 DATED 20-4-2022 ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER.

Exhibit P20 TRUE COPY OF THE ORDER NO. B3/214753/2021 DATED 20-4-2022 ISSUED BY THE 3RD RESPONDENT TO THE 4TH PETITIONER.

Exhibit P21 TRUE COPY OF THE ORDER NO. B3/214750/2021 DATED 01-8-2022 ISSUED BY THE 3RD RESPONDENT TO THE 5TH PETITIONER.

Exhibit P22 TRUE COPY OF THE G.O(RT)NO.1523/2022/GEDN DATED 10-3-2022.

Exhibit P23 TRUE COPY OF THE ORDER NO. B5-8890/90/ K.DIS DATED 17-4-1990 ISSUED BY THE 3RD RESPONDENT.

Exhibit P24 TRUE COPY OF THE ORDER DATED 19.6.2020 OF THIS HON'BLE COURT IN WP(C)NO.12198/2020. RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF THE CIRCULAR NO.J2/57/2019/ G.EDN.DATED 08.03.2019 ISSUED BY THE GENERAL EDUCATION DEPARTMENT