Kerala High Court
Shareefa.K vs State Of Kerala
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939
WP(C).No. 9632 of 2015 (D)
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PETITIONER:
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SHAREEFA.K
HSST (ENGLISH), AIDED MOPILA HIGHER SECONDARY SCHOOL,
POOVAMBAYI, KINALOOR, BALUSSERY VIA, KOZHIKODE-677 612.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION
THIRUVANANTHAPURAM-695 001.
3. THE REGIONAL DEPUTY MANAGER
DIRECTOR OF HIGHER SECONDARY EDUCATION, KOZHIKODE.
4. THE MANAGER
AIDED MOPILA HIGHER SECONDARY SCHOOL, POOVAMBAYI,
KINALOOR, BALUSSERY VIA, KOZHIKODE-677 612.
5. V.P.IBRAHIM
HSST (ENGLISH), AIDED MOPILA HIGHER SECONDARY SCHOOL,
POOVAMBAYI, KINALOOR, BALUSSERY VIA, KOZHIKODE-677 612.
R1-R3 BY GOVERNMENT PLEADER SRI. M. R. DHANIL
R4 BY ADV. SRI.P.C.SASIDHARAN
R5 BY ADVS. SRI.LAL K.JOSEPH
SRI.A.A.ZIYAD RAHMAN
SRI.V.S.SHIRAZ BAVA
SRI.JOSEPH KURIAN VALLAMATTAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sdr/-
WP(C).No. 9632 of 2015 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1.TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY
THE 4TH RESPONDENT TO THE PETITIONER
EXT.P2.TRUE COPY OF THE UNDATED APPOINTMENT ORDER
EXT.P3.TRUE COPY OF THE ORDER DATED 29/10/2012.
EXT.P4.TRUE COPY OF THE ORDER DATED 17/12/2012.
EXT.P5.TRUE COPY OF THE REPRESENTATION DATED 14/1/2013.
EXT.P6.TRUE COPY OF LETTER DATED 28/1/2013.
EXT.P7.TRUE COPY OF THE ORDER DATED 14/12/2011.
EXT.P8.TRUE COPY OF THE ORDER DATED 20/9/2012.
EXT.P9.TRUE COPY OF THE JUDGMENT DATED 17/12/2013
IN WPC NO.30029/2013.
EXT.P10.TRUE COPY OF G.O.(RT) N.736/2015 DATED 21/2/2015
EXT.P11.TRUE COPY OF THE ORDER DATED 12/9/2013.
EXT.P12.TRUE COPY OF THE LETTER DATED 25/4/2013.
RESPONDENT(S)' EXHIBITS
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EXT.R5(A) ORDER BEARING NUMBER A2/1561/2014 DTD 21.03.2014 ISSUED
BY THE 3RD RESPONDENT.
/TRUE COPY/
PA TO JUDGE
sdr/-
DEVAN RAMACHANDRAN, J.
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W.P.(C) No.9632 of 2015
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Dated this the 12th day of July, 2017
JUDGMENT
The petitioner claims that she was originally appointed as H.S.A (English) in Aided Mopila Higher Secondary School, Poovambayi, Kinaloor, managed by the fourth respondent Manager on 05.06.2006. She has produced Ext.P1 as being her appointment order to such post. The petitioner says that subsequently, in the academic year 2011-12, she was appointed as Higher Secondary School Teacher (English) (hereinafter referred to as 'HSST (English)' for short) in the same school but says that the appointment order, namely, Ext.P2, does not bear a date. She has filed this writ petition aggrieved by orders of the Educational Authorities denying her approval as HSST (English) from 01.12.2011, the date, the petitioner asserts, on which the vacancy arose.
2. The petitioner has filed this writ petition seeking that Exts.P3, P6, P8 and P10, namely, the various orders issued by the Educational Authorities relating to her appointment and approval be quashed as being unlawful and also to issue orders W.P.(C) No.9632 of 2015 2 cancelling the appointment of the fifth respondent as HSST (English) with effect from 05.12.2013, since according to her, she ought to be granted appointment in the said post notionally with effect from 01.12.2011.
3. I have heard Smt.Aruna.A, learned counsel appearing for the petitioner, Sri.P.C.Sasidharan, learned counsel appearing on behalf of fourth respondent, Sri.A.A.Ziyad Rahman, learned counsel appearing for the fifth respondent and the learned Government Pleader appearing for respondents 1, 2 and 3.
4. The petitioner was appointed as HSST (English), as is discernible from Ext.P2 appointment order issued by the fourth respondent Manager. The said order does not bear a date but the petitioner received it, according to her, on 03.01.2012. According to the petitioner, the manager did not inform her about her appointment as HSST (English) with effect from 01.12.2011 and that she continued to serve as H.S.A. in the same school being oblivious to such appointment until 03.01.2012, when she received Ext.P2 appointment order and joined the said post. However, as per Ext.P3, the Regional Deputy Director, Higher Secondary Education, Kozhikode granted approval to the W.P.(C) No.9632 of 2015 3 petitioner only as HSST (Junior) in English by transfer, with effect from 03.01.2012, namely, the date on which she joined service. The petitioner appears to have been approved only as HSST (Junior) because, by then the staff fixation order had been revised thereby revising the existing post of HSST to make it HSST (Junior). This was followed by Ext.P4 order dated 17.12.2012, which is issued by the Director of Higher Secondary Education, finding in favour of the petitioner and ordering that she should be appointed as HSST (English) notionally with effect from 01.12.2011. The Director had issued these orders noticing the case of the petitioner that she came to know of Ext.P2 appointment order only on 03.01.2012.
5. The petitioner, thereafter, made Ext.P5 request to the Manager to implement Ext.P4 order and it was replied to by the Manager that he has already filed an appeal before the Government against Ext.P4 order.
6. The proceedings continued and finally culminated in Ext.P10 order, as per which, the Government rejected the claims of the petitioner and found that she had not joined the school on 01.12.2011 but only on 03.01.2012 and that as per the revised W.P.(C) No.9632 of 2015 4 staff fixation order, she cannot claim to be an HSST (English), since after revision of the staff fixation no such vacancy was available. The petitioner alleges that these orders are irregular and illegal referring to Ext.P11 staff fixation order, which was issued even before Ext.P10 on 12.09.2013. The petitioner says that as per the staff fixation, revised as per Ext.P10, for the year 2011-12, one post of HSST (English) had been allowed. It is on such basis that the petitioner says that the order of the Government, namely, Ext.P10, is illegal and irregular.
7. Smt.Aruna, learned counsel for the petitioner further refers to Ext.P12 order, which is issued by the Secretary to Government to the Regional Deputy Director, ordering clubbing of Part I English and Part III Communicative English is beneficial to Government from financial point of view and that if these subjects are clubbed together and taught accordingly, additional post creation can be avoided. This order, thereafter, goes to request the Regional Deputy Director to continue the staff pattern in English and Communicative English on the basis of the work load and to sanction the post of HSST (English) as per proceedings dated 24.01.2012.
W.P.(C) No.9632 of 2015 5
8. I have considered the various submissions made at the Bar and the pleadings available on record. Sri.P.C.Sasidharan, learned counsel appearing for the Manager vehemently submits that nothing can be found fault with against Exts.P3, P6, P8 and P10, since these orders were issued taking into account the available staff fixation at the relevant time. He asserts that the petitioner cannot claim to be HSST (English) when the staff fixation order available at that time did not permit such a post. He contends therefore, that the claim of the petitioner against these orders are completely untenable.
9. Sri.Ziyad Rahman, learned counsel appearing for the fifth respondent submits that his client had joined the school on 05.12.2013 and that his client was appointed based on Ext.R5(a) staff fixation order produced by the fifth respondent along with the counter affidavit for the year 2013-14. Sri.Ziyad Rahman, therefore, asserts that whatever be the nature of the contentions of the petitioner, his client cannot be disturbed, since he had been appointed validly against the post that is available under a proper staff fixation for the year 2013-14.
10. It may be true that Exts.P3, P6, P8 and P10 orders were W.P.(C) No.9632 of 2015 6 issued based on the staff fixation orders issued for the period covering 2011-12, which was occupying the field at that time. Viewed from that angle, the submission of Sri.K.C.Sasidharan, learned counsel appearing for the Manager appears to be completely sustainable.
11. That being so, however, I must also notice that Ext.P11 staff fixation order was issued a few days earlier to Ext.P10 order, which is impugned in this writ petition. As per Ext.P11 order, an additional post of HSST (English) had been sanctioned for the year 2011-12. It is on this basis, that the petitioner now claims that she has a right to be appointed. This is not an issue that was considered by the Government while issuing Ext.P10 order, since obviously the staff fixation order was not brought to its notice. In that view, Ext.P10 order would require to be reconsidered, since the impact of Ext.P11 staff fixation order has not been considered at all.
12. I am, therefore, of the opinion that a comprehensive re- look is required by the competent Secretary of the Government into the respective claims of the petitioner and that the fifth respondent as also the contention of the Manager of the school, W.P.(C) No.9632 of 2015 7 notwithstanding what is stated in Ext.P10. I do not propose to take any affirmative view on the validity or otherwise of Ext.P10 but I propose to quash the same so as to pave way for a fresh consideration of the claims of the petitioner, fifth respondent and the Manager of the school, without being hampered by what is stated therein. For such purpose alone, I quash Ext.P10 order.
13. Having quashed Ext.P10, what is now required is that the competent Secretary of the Government consider the claim of the petitioner, that of the fifth respondent and the Manager taking into account all relevant factors including Ext.P11 staff fixation order and issue fresh orders in terms of law. I, therefore, direct the competent Secretary of the first respondent Government of Kerala to take up the appeal of the fourth respondent, from which Ext.P10 order had been issued, and to reconsider the same, after affording an opportunity of being heard to the petitioner, the fifth respondent and of course the fourth respondent Manager of the school adverting to all relevant factors and documents, including Ext.P11 staff fixation order, as expeditiously as possible but not later than three months from the date of receipt of a copy of this judgment. W.P.(C) No.9632 of 2015 8
14. For an expeditious implementation of the terms of this judgment, the petitioner will be entitled to place before the competent Secretary of the Government, a certified copy of this judgment along with a copy of the writ petition complete in all respects, including the documents produced therein, along with the copies of the other pleadings in this writ petition. It is ordered that the time frame fixed in this judgment will commence from the date on which the petitioner serves the certified copy of this judgment and the copies of the writ petition and pleadings on the competent Secretary.
Sd/- DEVAN RAMACHANDRAN
stu JUDGE