Manager, Mowancherry U.P. School vs State Of Kerala
2025 Latest Caselaw 172 Ker

Kerala High Court

Manager, Mowancherry U.P. School vs State Of Kerala on 13 May, 2025

Author: N.Nagaresh

Bench: N.Nagaresh

                                             2025:KER:32649

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

  TUESDAY, THE 13TH DAY OF MAY 2025 / 23RD VAISAKHA, 1947

                 WP(C) NO. 25446 OF 2023

PETITIONERS:

    1    MANAGER,
         MOWANCHERRY U.P. SCHOOL,
         AGED 51 YEARS,
         P.O. MOWANCHERRY,
         KANNUR DISTRICT, PIN - 670613

    2    ABDURAHEEM KUNDUVALAPPIL,
         AGED 38 YEARS,
         S/O. MOHIDDEEN KUNHI, U.P.S.T.,
         MOWANCHERRY U.P. SCHOOL, P.O. MOWANCHERRY,
         KANNUR DISTRICT, PIN - 670613

         BY ADVS.
         P.M.PAREETH
         AISWARYA VENUGOPAL
         NAJEEB P.S


RESPONDENTS:

    1    STATE OF KERALA,
         REPRESENTED BY SECRETARY TO GOVERNMENT,
         GENERAL EDUCATION DEPARTMENT,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM, PIN - 695001

    2    DIRECTOR OF GENERAL EDUCATION,
         JAGATHY, THIRUVANANTHAPURAM, PIN - 695014

    3    DEPUTY DIRECTOR OF EDUCATION,
         PUZHATHI HOUSING COLONY,
         KANNUR DISTRICT, PIN - 670002
                                             2025:KER:32649
W.P.(C) No.25446/2023
                            :2:


    4      DISTRICT EDUCATIONAL OFFICER,
           THAVAKKARA, KANNUR DISTRICT,
           PIN - 670002

    5      ASSISTANT EDUCATIONAL OFFICER,
           KANNUR NORTH, KANNUR DISTRICT,
           PIN - 670002


          BY ADV.
          SRI.PREMCHAND R. NAIR, SR.GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 21.02.2025, THE COURT ON 13.05.2025 DELIVERED
THE FOLLOWING:
                                                  2025:KER:32649
W.P.(C) No.25446/2023
                               :3:

                          JUDGMENT

Dated this the 13th day of May, 2025

The 1st petitioner is the Manager of

Mowanchery UP School and the 2nd petitioner is a UPST

appointed in the School. The 2nd petitioner was appointed as

UPST as per Ext.P1 appointment order dated 04.06.2012.

Approval to the appointment was declined as per Ext.P2

Government Order dated 17.10.2016 on the ground that the

vacancy had to be filled up by appointing protected Teacher.

Ext.P2 further stated that there is management dispute.

2. For the academic year 2013-2014, though

there were sufficient student strength in standard V to

sanction two additional posts of UPSA, the posts were not

sanctioned. One additional Division in LP Section was,

however, sanctioned. No LPSA could be appointed during the

academic year 2013-2014. The petitioners state that there 2025:KER:32649

were 24 classrooms (22 classrooms + 2 extra spaces) and 23

divisions were sanctioned. If the number of Divisions in the

LP Section was limited to 10, which was the actual number of

LPSAs engaged, one additional Division could have been

sanctioned in UP Section. This was the position in 2014-

2015, 2015-2016 and 2016-2017.

3. The 2nd petitioner filed Appeal against the

Staff Fixation Orders. The Appeal was rejected as per Ext.P8,

holding that only an approved Manager can file an Appeal

against the Staff Fixation Order. The 2nd petitioner filed

Ext.P9 revision/representation against Ext.P8. The claim of

the petitioners was allowed in part, directing the 4 th

respondent to approve the appointment of the 2 nd petitioner

from 01.04.2017, as per Ext.P11 Government Order dated

18.09.2017.

4. The petitioners state that the reason stated

in Ext.P11 that there was no accommodation for the 2025:KER:32649

additional post, is incorrect. There are 24 classrooms and

only 22 Teachers working from 2012-2013 onwards. The 2 nd

petitioner therefore challenged Ext.P11. The 3 rd respondent

as per Ext.P15, declined the request to sanction additional

Division in UP Section holding that there was no

accommodation available.

5. In W.P.(C) No.20068 of 2019, this Court set

aside Ext.P15 and directed the 3rd respondent to reconsider

the matter as per Ext.P17 judgment. The 3 rd respondent,

however, rejected the request as per Ext.P18 order,

reiterating the stand in Ext.P15. When the 2 nd petitioner filed

Contempt of Court Case No.1253 of 2023, the 3 rd respondent

has withdrawn Ext.P18 and issued Ext.P19 order.

Subsequently, pursuant to the directions in W.P.(C)

No.23657 of 2023, the 1st respondent passed Ext.P21 order

dated 08.08.2024, repeating the very same reasons. Hence,

the petitioner is before this Court.

2025:KER:32649

6. The counsel for the petitioners would argue

that in case it is not possible to approve the appointment of

the 2nd petitioner for the period from 04.06.2012 to

31.05.2013, there is no difficulty in shifting the 2 nd petitioner

and accommodating him in the additional Division vacancy

which occurred in 2013-2014, 2014-2015, 2015-2016 and

2016-2017. In the facts of the case, the 1 st respondent ought

to have exercised the powers under the Rule and directed to

accommodate the 2nd petitioner in the additional vacancies,

which occurred.

7. The respondents filed counter affidavit and

resisted the writ petition. The 3 rd respondent stated that from

2013-2014 to 2015-2016, 12 posts of LPSA and 11 posts of

UPSA were sanctioned totalling 23 Divisions, one of which

was an additional Division. During this period, 10 LPST and

11 UPST, including HM, worked in the School with approval.

In the category of UPSA, there was no vacancy to 2025:KER:32649

accommodate the 2nd petitioner. The 2nd petitioner could not

have been appointed against LPST vacancy, as the 2 nd

petitioner did not possess TTC.

8. The 3rd respondent further stated that the

UPST post commensurate with the students strength in the

5th standard was not sanctioned in the School since from

2013-2014 to 2016-2017 as there was no sufficient

accommodation. The 3rd respondent has no power to

redetermine the Staff strength at this length of time. In the

facts of the case, the writ petition is liable to be dismissed,

contended the 3rd respondent.

9. I have heard the learned Counsel for the

petitioners and the learned Senior Government Pleader

representing the respondents.

10. The 2nd petitioner was appointed as UPST

on 04.06.2012. It is evident from the pleadings that there

was some disputes relating to appointment of Manager of the 2025:KER:32649

School. The dispute was settled on 20.07.2018 when Sri.

Ashraf was approved as Manager. The appointment of the

2nd petitioner was not approved by the Assistant Educational

Officer as per Ext.P2 order dated 17.10.2016, on the ground

that the vacancy to which the 2 nd petitioner was appointed

occurred due to exemption of Headmaster from class charge

and therefore the said vacancy has to be filled up by

appointing protected Teacher. The management dispute was

also advanced as a reason for not approving the appointment

of the 2nd petitioner.

11. By Ext.P3 judgment dated 02.06.2016 in

W.P.(C) No.30818 of 2014, the Court directed to approve the

appointment of another Teacher in the same School

disregarding the alleged management dispute. Therefore, the

said reason as contained in Ext.P2 is unsustainable. For the

academic year 2013-2014, the 4th respondent sanctioned one

additional Division in LP School. Additional post of UPSA 2025:KER:32649

was not sanctioned. No appointment was made in the

vacancy of LPSA. Against 12 Divisions in the LP Section,

including the additional Division sanctioned during 2013-

2014, only 10 LPSAs were working.

12. The contention of the petitioners is that if

instead of the additional Division in LP Section, and additional

Division in UP Section was sanctioned, the 2nd petitioner

could have been accommodated in the available space. It is

not in dispute that there were sufficient students strength in

standard V to sanction additional posts of UPSA. This

position continued in the years 2014-2015, 2015-2016 and

2016-2017.

13. As there was no approved Manager during

this time, the 2nd petitioner submitted Appeal against the Staff

Fixation Orders in respect of these years. That Appeal was,

however, rejected as per Ext.P8 order holding that only a

Manager can file Appeal against Staff Fixation Order. The 2025:KER:32649

petitioners, therefore, approached the 1 st respondent filing

Ext.P9 representation. The representation was partly

acceded to. The appointment of the 2nd petitioner was

approved as per Ext.P11, for the period from 01.04.2017,

accommodating him in the retirement vacancy of Sri. K.

Raghavan, UPSA. The service rendered by the 2 nd petitioner

for the period from 04.06.2012 to 31.05.2017 was not

approved.

14. In Ext.P11, it was stated that there is no

accommodation for the additional posts. The petitioners

would submit that there are 24 classrooms available and only

22 Teachers were working, including the 2nd petitioner from

2012-2013 onwards. If that be so, the denial of approval to

the appointment of the 2nd petitioner, is unjustified. The 3rd

respondent, however, again declined the request for sanction

of additional Division in UP Section, as per Ext.P15 order

dated 14.02.2019, on the ground that there was no 2025:KER:32649

accommodation.

15. Ext.P15 was set aside by this Court as per

Ext.P17 judgment dated 08.02.2023. The 3 rd respondent was

directed to pass orders afresh. The 3rd respondent later

passed Ext.P19 order reiterating the reasons advanced in

Ext.P15 for declining approval to the appointment. The

petitioners thereupon approached the 1st respondent. The 1st

respondent passed Ext.P21 order dated 08.08.2024,

repeating the very same reason.

16. In Ext.P21, the 1st respondent has stated

that Staff Fixation cannot be altered after a long period of 10

years. If a post of UPST is to be sanctioned for the period

from 2013-2014 to 2016-2017, then a sanctioned post of

LPST will have to be cancelled. In Ext.P21, the 1 st respondent

has conceded that during the relevant period there were

sufficient students in the School for sanctioning additional

post of UPST. It was not sanctioned in view of lack of 2025:KER:32649

accommodation as per the report of the Deputy Director of

Education.

17. It is the specific case of the petitioners that

from the academic year 2013-2014 onwards, 12 Divisions

were sanctioned in LP Section, but only 10 Divisions were

functioning. If that be so, there cannot be any problem in

converting one post of LPSA into UPSA, without affecting any

LPSAs working in the School. This is so because in Ext.P14

judgment, it has been found that the issue of Fitness

Certificate does not arise as the claim of the petitioners is for

22 UPSA posts.

18. The facts of the case would disclose that 12

LPSA Divisions were sanctioned from 2013-2014 onwards.

Only 10 Divisions were functioning. Though there was

sufficient student strength to justify one more post of UPSA,

the post was not sanctioned alleging lack of accommodation.

This was at a time when Divisions to accommodate 12 2025:KER:32649

LPSAs were sanctioned in the School and only 10 LPSAs

were working. Respondents would urge that at this distance

of time, Staff Fixation for the years commencing from 2013-

2014 cannot be altered.

19. One has to keep in mind that the Staff

Fixation Orders not sanctioning additional division of UPSA in

spite of availability of students, for the years 2013-2014

onwards could not be challenged successfully as there was

no Manager. The petitioners had filed Appeals in this regard

which were dismissed, stating that only an approved

Manager can file Appeal against the Staff Fixation Order. The

fact remains that the 2nd petitioner has worked as UPST for

the period from 2013-2014 to 2016-2017. It would be highly

illegal, harsh and unjustified, if the 2nd petitioner is made to

suffer loss of service benefits for the period, for the reason

that there was no approved Manager and Staff Fixation

Orders could not be promptly challenged by the Manager.

2025:KER:32649

This is the fifth round of litigation the petitioners had to litigate

for approval of service. Therefore, I am of the view that the

writ petition has to be disposed of with appropriate directions.

The writ petition is therefore allowed. Exts.P19 and

P21 are set side. The 3rd respondent is directed to modify

Exts.P4, P5, P5 (a) and P5(b) Staff Fixation Orders

sanctioning an additional Division for the academic years

2013-2014 to 2016-2017, if necessary reducing the

sanctioned Divisions in the LP Section which were not

functioning during this period. There will be a further direction

to the 5th respondent to approve the appointment of the 2nd

petitioner by shifting him to the additional vacancy to be

created as above. The 2nd petitioner will be entitled to all

consequential benefits.

Sd/-

N. NAGARESH JUDGE SR 2025:KER:32649

APPENDIX OF WP(C) 25446/2023

PETITIONER'S EXHIBITS:

Exhibit P1 A TRUE PHOTO COPY OF THE APPOINTMENT ORDER DATED 04-06-2012 ISSUED BY THEN APPROVED MANAGER SMT. PATHOOTTY HAJJUMMA

Exhibit P2 A TRUE PHOTO COPY OF THE ORDER NO.C/7064/13 DATED 17-10-2016

Exhibit P3 A TRUE PHOTO COPY OF THE JUDGMENT DATED 02-06-2016 IN WRIT PETITION

Exhibit P4 A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER DATED 16-4-2016 FOR 2013-14 IN RESPECT OF MOWANCHERY U.P. SCHOOL

Exhibit P4(a) A TRUE PHOTOCOPY OF THE STAFF LIST FOR 2013-14

Exhibit P5 A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER DATED 16-04-2016 FOR THE YEAR 2014-15 IN RESPECT OF MOWANCHERRY U.P. SCHOOL

Exhibit P5(a) A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER DATED 26-4-2016 FOR 2015-16

Exhibit P5(b) A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER DATED 1-12-2017 FOR 2016-17

Exhibit P6 A TRUE PHOTO COPY OF THE APPEAL DATED 08-11-2016 FILED BEFORE THE 3RD RESPONDENT CHALLENGING STAFF FIXATION ORDER 2013-14 2025:KER:32649

Exhibit P7 A TRUE PHOTO COPY OF THE APPEAL DATED 08-11-2016 FILED BEFORE THE 3RD RESPONDENT CHALLENGING STAFF FIXATION ORDER 2014-15

Exhibit P8 A TRUE PHOTO COPY OF THE LETTER DATED 25-01-2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER

Exhibit P9 A TRUE PHOTO COPY OF THE REVISION/REPRESENTATION DATED 03-04-

                        2017   SUBMITTED   BY  THE PETITIONER
                        BEFORE THE 1ST RESPONDENT INVOKING
                        RULE 3 OF CHAPTER 1 KER

Exhibit P10             A TRUE PHOTO COPY OF THE      JUDGMENT
                        DATED 07-04-2017 IN WRIT      PETITION


Exhibit P11             A TRUE PHOTO COPY OF THE G.O.(RT) NO.
                        3244/2017/GEDN DATED 18-09-2017

Exhibit P12             A TRUE PHOTO COPY OF THE ORDER DATED
                        13-11-2017   ISSUED   BY   THE   5TH
                        RESPONDENT

Exhibit P13             A TRUE PHOTOCOPY OF THE SENIORITY LIST

FOR 2012-13 OF MOWANCHERY U.P.SCHOOL

Exhibit P14 A TRUE PHOTO COPY OF THE JUDGMENT DATED 05-12-2018 IN WRIT PETITION

Exhibit P15 A TRUE PHOTO COPY OF THE ORDER DATED 14-02-2019 ISSUED BY THE 3RD RESPONDENT

Exhibit P16 A TRUE PHOTO COPY OF THE JUDGMENT

2025:KER:32649

Exhibit P17 A TRUE PHOTO COPY OF THE JUDGMENT DATED 08-02-2023 IN W.P.(C) NO.

Exhibit P18 A TRUE PHOTO COPY OF THE ORDER NO.

DDEKNR/1753/2023-B2 DATED 23-05-2023 ISSUED BY THE THIRD RESPONDENT

Exhibit P19 A TRUE PHOTO COPY OF THE ORDER NO.

DDEKNR/1753/2023-B2 DATED 08-07-2023 ISSUED BY THE THIRD RESPONDENT

Exhibit P20 A TRUE PHOTO COPY OF THE ORDER DATED 12-07-2023 IN CONTEMPT CASE NO.

Exhibit P21 A TRUE PHOTOCOPY OF THE GO(RT) NO.

4946/2024/GEDN DATED 08-08-2024.