Allowed

Shameer.P.K. v. the State of Kerala

Kerala HC19 Nov 2012WP(C)/3545/2012

Case brief

AI extract

What is this about?

The Court held that the appellant authority could not reconsider the lower authority's finding on the vacancy's existence. The order denying back dates was set aside, and the petitioner was directed to be granted approval w.e.f. 01.06.2010.

What did the court decide?

The writ petition is allowed; the impugned order denying approval w.e.f. 01.06.2010 is set aside; the respondent is directed to grant appropriate orders granting approval from 01.06.2010 within six we

Shameer.P.K. Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 19TH DAY OF NOVEMBER 2012/28TH KARTHIKA 1934

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WP(C).No. 3545 of 2012 (P)

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PETITIONER(S):

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SHAMEER.P.K.,

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LPSA, ADUKKATH MLP SCHOOL, P.O.ADUKKATH KUTTIYADI, KOZHIKODE DISTRICT.

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BY ADV. SRI.R.K.MURALEEDHARAN

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RESPONDENT(S):

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1. THE STATE OF KERALA

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REP. BY SECRETARY TO GENERAL EDUCATION DEPARTMENT TRIVANDRUM-695 001.

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2. THE DISTRICT EDUATIONAL OFFICER VATAKARA, KOZHIKODE-673 101.

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3. THE ASSISTANT EDUCATIONAL OFFICER

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KUNNUMMEL, VATAKARA, KOZHIKODE-673 101.

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BY ADV. GOVERNMENT PLEADER SMT.LOWSY.A.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 3545 of 2012 (P)

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PETITIONER(S) EXHIBITS

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EXT.P1 : A TRUE COPY OF THE APPOINTMENT ORDER IN FORM 27 DTD.1.6.2010. EXT.P2 : A TRUE COPY OF THE ORDER DTD.23.2.2011 OF THE 3RD RESPONDENT. EXT.P3 : A TRUE COPY OF THE CIRCULAR NO.23323/J1/89/G.EDN DTD.6.11.89. EXT.P4 : A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DTD.2.5.2011.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.A TO JUDGE.

stu

P.R. RAMACHANDRA MENON J.

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W.P. (C) No. 3545 of 2012

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JUDGMENT

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The short question that arises for consideration in this case is whether Ext. P1 order passed by the 3^rd respondent is in conformity with Ext. P4 order passed by the second respondent/DEO, so as to have approved the appointment of the petitioner as LPSA w.e.f. 01.06.2010.

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The case of the petitioner is that he got appointment as LPSA based on Rule 51A claim, originally against the promotion vacancy of one teacher as Head Master w.e..f 01.06.2010, as borne by Ext. P1. But, approval was not granted stating that the person who was promoted as Head Master, was subsequently demoted. Pursuant to promotion given to a teacher on 16.08.2010, the Manager of the school appointed the petitioner against that vacancy and submitted a fresh proposal for approval. The claim was not rejected, but returned, and it led to an appeal filed before the second

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W.P.(C) No. 3545 of 2012 : 2 :

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respondent, seeking the benefit flowing from Ext. P3 Circular issued by the Government. After considering the merits involved, third respondent/appellate authority allowed appeal as per Ext. P4 order dated 02.05.2011 and gave necessary directions to the lower authorities to give approval as specified. In spite of the direction to grant approval, reckoning the vacancy as in existence w.e.f. 01.06.2010; the third respondent passed Ext. P1 order granting approval only w.e.f. 16.08.2010 which is under challenge.

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3 The third respondent has filed a counter affidavit stating that there is a 'rider' placed by the second respondent in Ext. P4 order. It was after considering the said rider and such other materials, that Ext. P1 order came to be passed by the 3^rd respondent, for the reason that there was no material to confirm existence of vacancy as on 01.06.2010. When a clear vacancy arose on 16.08.2010, the petitioner was accommodated and in turn, appointment is stated as approved w.e.f. 16.08.2010.

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W.P.(C) No. 3545 of 2012

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: 3 :

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After hearing the learned counsel for the petitioner and the learned Government Pleader, this Court finds that, the

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second respondent has arrived at a clear finding on Ext. P4 that, existence of vacancy has to be reckoned w.e.f. 01.06.2010 in view of the particular facts and circumstances. By virtue of the said finding, the benefit was directed to be extended to the petitioner, subject to the condition that, the claim was in order, in all other respects. This obviously did not mean or give any power or authority to the 3^rd respondent to reconsider the question as to whether the vacancy was available as on 01.06.2010, by sitting in appeal over the second respondent. This being the position, the only question left out to be considered by the 3^rd respondent was 'whether claim was otherwise in order' and if so, to have granted approval in respect of the above vacancy w.e.f. 01.06.2010.

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In the above circumstances, Ext. P1, to the extent it has denied the benefit to the petitioner in granting approval from 01.06.2010 is set aside. The third respondent is directed to

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W.P.(C) No. 3545 of 2012

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: 4 :

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pass appropriate orders granting approval from 01.06.2010 in tune with Ext. P4, if the claim is 'otherwise in order' and disburse the benefit flowing therefrom. Necessary exercise in this regard shall be completed at the earliest at any rate within six weeks from the date of receipt of a copy of this judgment.

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The Writ Petition is allowed. No cost.

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sd/-

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P. R. RAMACHANDRA MENON, (JUDGE)

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kmd

Shameer.P.K. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Shameer.P.K. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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