Remanded

Vidhu.G. v. State of Kerala and Others

Kerala HC11 Aug 2016WP(C)/16447/2011

Case brief

AI extract

What is this about?

The High Court remitted the statutory revision petition to the State Government for a fresh decision on the petitioner's appointment as U.P.S.A. for the academic year 2002-03. While grievances for subsequent years were redressed, the matter for 2002-03 requires authentication of a fitness certificate and verification of duty discharge before a fair opportunity for hearing is afforded.

What did the court decide?

Impugned revisional order set aside; petition remitted to the Government for fresh consideration after verification of duty discharge and fitness certificate authenticity.

Vidhu.G. Vs State of Kerala and Others — Education and Admissions | Kerala HC (2016)

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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 ALEXANDER THOMAS

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THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938

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WP(C).No. 16447 of 2011 (E)

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PETITIONER :

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VIDHU.G., U.P.S.A., PARIYAPURAM CENTRAL A.U.P.SCHOOL, P.O.PARIYAPURAM, THANUR, PIN -676 302.

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BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

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3. THE DISTRICT EDUCATIONAL OFFICER, TIRUR.

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4. THE ASSISTANT EDUCATIONAL OFFICER, THANUR.

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5. THE MANAGER, PARIYAPURAM CENTRAL A.U.P. SCHOOL, THANUR- 676 302.

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R1 TO R4 BY GOVERNMENT PLEADER SRI.P.V.ELIYAS R5 BY ADV. SRI.PRADEEP KRISHNA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.16447/2011

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE ORDER DATED 6/6/2001 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT

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P2 COPY OF THE ORDER DATED 19/12/2001 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT

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P3 COPY OF THE ORDER DATED 17/8/2002 OF AEO, TANUR.

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P4 COPY OF THE ORDER DATED 11/8/04 ISSUED BY THE 2ND RESPONDENT

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P5 COPY OF THE REVISION PETITION FILED BY THE PETITIONER DATED 21/2/2009 BEFORE THE 1ST RESPONDENT

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P6 COPY OF THE G.O. DATED 16/4/2011

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P7 COPY OF THE FITNESS CERTIFICATE ISSUED BY THE ASST. EXECUTIVE ENGINEER, PWD, PARAPPANANGADI.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

ALEXANDER THOMAS, J.

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W.P.(C).No. 16447 of 2011

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==================

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Dated this the 11^th day of August, 2016

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J U D G M E N T

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The prayers in this Writ Petition (Civil) are as follows:

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“(i) To issue a writ of certiorari or any other appropriate writ, order direction, calling for the records leading to Ext.P-6 and quash the same;

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(ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as U.P.S.A. with effect from 1.8.2002 and disburse him arrears of salary;

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(iii) To declare that the appointment of the petitioner as U.P.S.A. made with effect from 1.8.2002 is liable to be approved.

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(iv) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as U.P.S.A. with effect from 1.8.2002 and grant him all consequential benefits.”

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Earlier the 3^rd respondent DEO had filed a statement

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dated 8.6.2012 in the matter. When the matter was taken up for

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final hearing on 15.7.2016, this Court had passed the following order:

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“Learned Government Pleader will get specific instructions from the competent authority among respondents 1 to 4 as to whether any appeal or review was instituted against the staff fixation order for the year 2002-2003 by placing reliance on Ext.P7 fitness certificate dated 31.7.2002 etc. and also as to whether, why approval of the appointment of the petitioner cannot be granted at least for the academic year 2003-04 inasmuch as the Government has clearly

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W.P.(C).16447/11 - : 2 :-

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admitted in paragraph 5 of Ext.P6 as well as in paragraph 2 of their statement dated 8.6.2012 in the W.P.(C) that the additional classroom was in fact provided in the sketch plan of the classroom for the academic year 2003-04. The Government Pleader would also get instructions as to the staff fixation proceedings for the year 2003-04 onwards and as to whether the said additional classroom facility referred to in paragraph 5 of Ext.P6 was reckoned for the purpose of sanctioning of posts and if not, reason thereof. A statement in this regard should be filed by the competent authority among the official respondents 1 to 4 through the learned Government Pleader within ten days' time.”

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In compliance with the order dated 15.7.2016, the 3^rd respondent DEO, has filed an affidavit dated 25.7.2016. It is stated in para 3 thereof that as per sketch plan submitted along with the staff fixation proposal for the academic 2003-04, the 4^th respondent AEO, Tanur has sanctioned one additional division on the basis of sufficient student strength and accommodation, and the appointment of the petitioner was approved as UPSA with effect from 15.7.2003 onwards in the additional division sanctioned for 2003-04 as per order No.K.Dis/B/5131/04 dated 29.09.2004 of the 4^th respondent AEO, Tanur. It is further stated therein that in the light of those circumstances, the writ petitioner is continuing from the academic year 2003-04 onwards. Therefore, the main dispute projected in this Writ Petition is regarding the approval of the appointment of the petitioner as UPSA for the academic year 2002-03 onwards. In the light of the aforementioned

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W.P.(C).16447/11 - : 3 :-

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para 3 of the abovesaid affidavit, the petitioner's grievances regarding academic year 2003-04 have been fully redressed by the educational authorities concerned. The subsisting grievance is only in relation to the approval of his appointment from 1.8.2002 onwards upto 31.5.2003 as UPSA in the 5^th respondent aided UP school for the academic year 2002-03 alone.

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Heard Sri.P.J.Elvin Peter, learned counsel appearing for the writ petitioner and the learned Government Pleader appearing for official respondents 1 to 4. Though notice had been duly served on R-5 manager, he has not chosen to enter appearance. It is pointed out by the writ petitioner that R-5 manager is fully supporting the cause of the petitioner, as the petitioner was appointed by R-5 manager.

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As regards the issue of appointment of the petitioner from 1.8.2002 onwards, it can be seen that it is clearly admitted in Ext.P-3 order dated 17.8.2002 issued by the 4^th respondent AEO, Tanur, that considering the strength of the students, there is scope

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for allowing one additional division in Std.VII, but that no new accommodation is seen to be created=== during that year and hence the approval of the appointment of the petitioner as UPSA in

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W.P.(C).16447/11 - : 4 :-

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the additional post is rejected for want of vacancies. It is further clearly admitted in para 4 of the impugned Ext.P-6 revisional order dated 16.4.2011 passed by the 1^st respondent Government with reference to the lack of required accommodation, that a new class room was constructed and fitness certificate from the Public Works Department was received on 31.7.2002. It is further admitted in para 5 of Ext.P-6 that the said fitness certificate dated 31.7.2002 (Ext.P-7) was not produced before finalisation of the staff fixation order for the year 2002-03 and that additional class room was provided in the sketch plan of the class room for the academic year 2002-03 only, etc. It is also admitted in para 2 of the affidavit dated 25.7.2016 filed by the 3^rd respondent DEO that the said fitness certificate dated 31.7.2002 issued by the Public Works Department was submitted by the manager after the finalisation of the staff fixation for 2002-03, ie. 15.7.2002. In other words, the main objection stated is that Ext.P-7 fitness certificate dated 31.7.2002 issued by the Assistant Executive Engineer of the Public Works Department concerned was submitted by the manager only on 31.7.2002, which is 15 days after the deadline for staff fixation process, viz., 15.7.2002. As the major part of the petitioner's

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W.P.(C).16447/11 - : 5 :-

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grievances has been redressed inasmuch as he has secured approval for UPSA for the academic year 2003-04, and the ground of rejection for the academic year 2002-03 is only of this narrow aspect, there has been a sea-change in the state of affairs that exist now compared to the scenario that prevailed at the time of issuance of Ext.P-6 revisional order. This Court is of the considered opinion that instead of this Court adjudicating this aspect of the matter for the academic year 2002-03 regarding the acceptance or otherwise of Ext.P-7 fitness certificate dated 31.7.2002, the matter is only to be remitted to the 1^st respondent Government for consideration of the matter afresh. This is only for the limited purpose of deciding the petitioner's request for the academic year 2002-03, as the grievance for the subsequent academic year onwards has already been redressed.

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In that view of the matter, the impugned Ext.P-6 revisional order dated 16.4.2011 passed by the 1^st respondent State Government is set aside and Ext.P-5 statutory revision petition dated 21.2.2009 filed under Rule 92 Chapter XIV A of KER will stand remitted to the 1^st respondent State Government for consideration afresh. The 4^th respondent AEO, Tanur, will get a report from the 5^th

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W.P.(C).16447/11 - : 6 :-

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respondent Manager as to whether the petitioner had discharged the duties and functions as UPSA for the academic year 2002-03 pursuant to his appointment order dated 1.8.2002 and the manager will produce the entire documents including the attendance register and based on the report submitted by the manager and the documents and records like the attendance register. The 4^th respondent AEO will furnish a report to the 1^st respondent Government as to whether the petitioner had discharged duties and functions as UPSA from 1.8.2002 onwards for the academic year 2002-03. Before furnishing the report, the AEO will also ascertain from the Assistant Executive Engineer, PWD Buildings Sub Division, Parappanangadi, Malappuram district, as to the authenticity of Ext.P-7 fitness certificate dated 31.7.2002. The Assistant Executive Engineer, Public Works Department, Buildings Sub Division, Parappanangadi, will ensure that a report in this regard is furnished to the 4^th respondent AEO within one week from the date of receipt of the necessary request made by R-4 AEO in that regard. The 4^th respondent AEO will thereafter submit a comprehensive report before the 1^st respondent on the aspects regarding the petitioner's discharge of duties and functions from 1.8.2002 onwards and also

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W.P.(C).16447/11 - : 7 :-

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as to authentication report made given by the Assistant Executive Engineer regarding Ext.P-7 fitness certificate dated 31.2.2002. The said comprehensive report should be furnished by R-4 AEO to the 1^st respondent Government without much delay, within a period of 3 weeks from the date receipt of a certified copy of this judgment. Copy of the said report should also be furnished to the writ petitioner. Thereafter, the petitioner may submit a supplemental representation in aid of his submissions and contentions before the State Government. The 1^st respondent State Government will thereafter afford a reasonable opportunity of being heard to the petitioner and R-5 manager, either in person or through authorised representative, if any, and render a considered decision thereon, without much delay, at any rate, within a period of 3 months from the date of production of a certified copy of this judgment. The 1^st respondent Government will also be at liberty to participate the representatives of the educational officers concerned in the hearing process. It is further made clear that if Ext.P-7 fitness certificate dated 31.7.2002 is authenticated by the Assistant Executive Engineer, PWD Buildings Sub Division, Parappanangadi, Malappuram district, then the 1^st respondent shall act upon the same and shall

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W.P.(C).16447/11 - : 8 :-

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not reject the request of the petitioner on the mere ground that Ext.P-7 certificate was submitted by the manager only after 15 days from the deadline for the completion of the staff fixation process for the academic 2002-03 and decide whether approval could be granted to the petitioner's appointment as UPSA for the academic year 2002-03 also. The decision so taken by the Government shall be duly communicated to the petitioner, R-5 Manager and R-4 AEO and all other officers concerned without much delay. If the decision of the 1^st respondent Government is favourable to the writ petitioner, then the AEO will ensure that all necessary steps are taken for working out consequential benefits to the petitioner based on such decision of the 1^st respondent Government.

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With these observations and directions, the Writ Petition (Civil) stands finally disposed of.

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sdk+

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Sd/ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

Vidhu.G. v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

Vidhu.G. v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

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