Kerala High Court
C.P Mohamed Ali Haji vs The State Of Kerala on 16 July, 2012
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY,THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935
WP(C).No. 19723 of 2013 (M)
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PETITIONER(S):
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C.P MOHAMED ALI HAJI, AGED 55 YEARS,
S/O.ALAVI HAJI, MANAGER A.M. LOWER PRIMARY SCHOOL,
PANAKKATHAYAM, TANUR, MALAPPURAM DISTRICT.
BY ADVS.SRI.V.A.MUHAMMED
SRI.K.E.HAMZA
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
JAGATHY, THIRUVANANTHAPURAM-695014.
3. THE DEPUTY DIRECTOR OF EDUCATION,
DOWN HILL, MALAPPURAM DISTRICT-676519.
4. THE DISTRICT EDUCATIONAL OFFICER,
TIRUR, MALAPPURAM DISTRICT-676101.
5. THE ASSISTANT EDUCATIONAL OFFICER,
TANUR, MALAPPURAM DISTRICT-676302.
6. SMT.P.K.SHAHINA,
PAZHAYAKATH KARUVAN KUZHIYIL, P.O. KOORIYAD,
MALAPPURAM DISTRICT-676306.
R1-R5 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL
BY GOVERNMENT PLEADER SRI.T.MUHAMOOD
R6 BY ADV. SRI.E.S.ASHRAF
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 19723 of 2013 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: TRUE COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE
6TH RESPONDENT.
EXHIBIT-P2: TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE
6TH RESPONDENT.
EXHIBIT-P3: TRUE COPY OF THE RELEVANT PAGE OF THE LIST OF TEACHERS
INCLUDED IN THE PACKAGE.
EXHIBIT-P4: TRUE COPY OF THE APPOINTMENT OF SMT.AMINA VALPARAMBIL
DATED 16.7.2012.
EXHIBIT-P5: TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL
OFFICER DATED 9.5.2013.
EXHIBIT-P6: TRUE COPY OF THE APPEAL FILED BEFORE THE DISTRICT
EDUCATIONAL OFFICER DATED 16.5.2013.
EXHIBIT-P7: TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF
EDUCATION DATED 23.7.2013.
EXHIBIT-P8: TRUE COPY OF THE REVISION PETITION FILED BEFORE THE 2ND
RESPONDENT DATED 3.8.2013.
EXHIBIT-P9: TRUE COPY OF THE LETTER OF THE 6TH RESPONDENT AND THE
ENDORSEMENT OF THE MINISTER.
RESPONDENT(S)' EXHIBITS
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R6(A): COPY OF HER RELEVANT SSC CERTIFICATE
R6(B): COPY OF SSC MARK LIST
R6(C): COPY OF MARK LIST OF PRE-DEGREE
R6(D): COPY OF TTC CERTIFICATE
R6(E): COPY OF THE ORDER DATED 18/6/12 ISSUED BY THE 2ND
RESPONDENT
R6(F): COPY OF THE SAID PROFORMA
R6(G): COPY OF THE SAID REPRESENTATION SUBMITTED BEFORE THE
PETITIONER
PJ
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WP(C).No. 19723 of 2013 (M)
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R6(H): COPY OF THE REPRESENTATION BEFOR THE DEPUTY DIRECTOR OF
EDUCATION
R6(I): COPY OF ORDER DATED 1/8/13
R6(J): COPY OF THE REQUEST MADE BY THIS DEPONENT
R6(K): COPY OF THE COMMUNICATION DATED 5/8/13 ISSUED BY THE HEAD
MASTER DECLINING TO PERMIT TO JOINT IN THE SCHOOL.
R6(L): COPY OF THE ORDER DATED 5/8/13 OF THE A.E.O.
R6(M): COPY OF THE ORDER NO.H2/35920/11/DPI DATED 4/4/2012 OF THE DPI
/ TRUE COPY /
P.S. TO JUDGE
PJ
C.K.ABDUL REHIM,J.
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WP(C).NO. 19723 of 2013
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Dated this the 7th day of February, 2014
JUDGMENT
The petitioner is the Manager of an aided Lower Primary School. The 6th respondent was appointed as Lower Primary School Assistant (LPSA) from 10.4.2004. Due to fall in students strength she became excess from 15.7.2006 onwards. But by introduction of "Teachers Package" the 6th respondent was protected and deployed as Cluster Co-ordinator in the Block Resources Center, Vengara. There arose a vacancy of Arabic Teacher in the school as on 31.5.2012. A teacher by name Amina Valparambil was appointed by the petitioner against the said vacancy. But the 5th respondent had rejected approval of the appointment stating that the 6th respondent ought to have been appointed against the said vacancy. Challenging Ext.P5 order passed by the 5th respondent in this regard, the petitioner had preferred appeal before the DEO, the 4th respondent. But during the pendency of the said appeal the 3rd respondent had issued Ext.P7 directing the petitioner to appoint the 6th WP(C). 19723 /2013 2 respondent on the basis that the 6th respondent is a retrenched teacher having qualification to be appointed as Arabic Teacher against the regular vacancy, which arose with effect from 1.6.2012. Aggrieved by Ext.P7 the petitioner had preferred revision before the 2nd respondent as per Ext.P8. But the 2nd respondent has not considered the revision. In the meanwhile the educational authorities are compelling the petitioner to appoint the 6th respondent on the basis of Ext.P7. Hence this writ petition is filed.
2. Contention of the petitioner is that Ext.P7 proceedings was issued by the 2nd respondent only on the basis of directions issued by the Hon'ble Minister for Education. The petitioner points out the reference contained in Ext.P7 which indicates that the Minister for Education had given instructions in the matter. He had also produced Ext.P9 which is the copy of a representation submitted by the 6th respondent before the Hon'ble Minister. An endorsement contained in Ext.P9 indicate that the Hon'ble Minister had issued directions to the 3rd respondent to take urgent action and to report compliance, WP(C). 19723 /2013 3 observing that the 6th respondent is entitled for appointment in the parent school against the vacancy which arose during the academic year 2013-14. Contention of the the petitioner is that the 6th respondent is not a claimant under Rule 51A because the vacancy which arose is not with respect to the same post or any lower or higher category of post in which the 6th respondent was working at the time of her retrenchment.
3. Heard; learned Government Pleader appearing for respondents 1 to 5 and counsel appearing for 6th respondent. This court takes note of the fact that against Ext.P7 the petitioner had preferred a statutory revision before the 2nd respondent as evidenced from Ext.P8. It is for the 2nd respondent to consider Ext.P8 and to dispose of the same after taking into consideration of the relevant contentions. Apprehension expressed by learned counsel for the petitioner that, since Ext.P7 was issued only on the basis of directions of the Hon'ble Minister for Education, the 2nd respondent may not be considering the merits independently. In this regard it is pointed out that the specific direction issued by the Minister is evident from Ext.P9.
WP(C). 19723 /2013 4
4. This court is of the opinion that, being a statutory revision, Ext.P8 need to be considered on merits, de hors any direction issued by the Minister.
5. Therefore the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P8 revision petition after affording an opportunity of personal hearing to the petitioner, 6th respondent, and others concerned. An independent decision shall be taken on the merits of the issue, after considering contentions raised by all the parties. The revision petition shall be disposed of at the earliest possible, at any rate within a period of six weeks from the date of receipt of a copy of this judgment.
6. Considering the fact that operation of Ext.P7 was stayed by this court by virtue of interim orders issued, implementation of Ext.P7 shall be kept in abeyance until the revision is disposed of as directed above. However the said interim arrangement will not prevent the 6th respondent being permitted to continue as Cluster Co-ordinator.
pmn/ C.K.ABDUL REHIM, JUDGE WP(C). 19723 /2013 5 Posots of 4 teachers were sanctioned and filled up and 14 protected teachers were deployed and posted to the school. Apart from that 6 unprotected teachers were also posted at the school in question. It is further stated that proposal for saaaaanction of posts has already been submitted to the Government through the 1st respondent and the same is under process. It is assured that action is being taken for deciding the protected teachers against the remainaing posts from other District, for which sanction is received from the Government. According to the 2nd respondent it is for the Government to consider the proposal for sanction of posts and to take an appropriate decision.
There is no justificationn on the part of the respondents 1 to 3 in delaying creation of posts and appointment of teachers indefinitely, after upgradation of the school. However it is conceded that the posts were already recommended and it is for the 3rd respondent to sanction such postos and to over... appointment. However it is mentioned that alternate arrangement has already been made and steps will be taken to appoint protected teachers with respect to the remaining posts. Learned counsel appearing for the petitioner pointed out that without payment of the headmaster, it is found from difficult to ... on the basis of the charge now assigned to the headmaster of the primary school. Therefore he seeks direction to creat the post of headmaster and to make payment within a short time.
Considering the factual aspects prevailing as mentioned above the writ petition is disposed of directing the respondents 1 to 3 to take necessary steps for creation of requisite posts of headmaster and treachers in the 4th respondent school at the earliest , at any rate within a period of three months from the date of receipt of a copy of this judgment.
Necessary steps shall also be taken for deployment of teachers as alternate arrangement till the posts are formally WP(C). 19723 /2013 6 created and appointments are made. Steps in this regard shalla be taken within a period of one month from the date of receipt of a copy of this judgment.
WP(C). 19723 /2013 7