Dismissed

P.S.Indu v. State of Kerala

Kerala HC25 Jan 2019WP(C)/28699/2013

Case brief

AI extract

What is this about?

This writ petition challenged the denial of appointment approval for the petitioner as Upper Primary School Assistant and Higher Secondary School Assistant. The Court set aside the government order dismissing her appeal and directed reconsideration based on a subsequent report correcting an error in the initial fitness certificate.

What did the court decide?

Setting aside Ext.P11 order; directing the first respondent to reconsider review applications with reference to Ext.P12 report findings within 3 months.

P.S.Indu Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2019)

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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 V.G.ARUN

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FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

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WP(C).No. 28699 of 2013

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PETITIONER:

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P.S.INDU

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HIGH SCHOOL ASSISTANT (ENGLISH),GRACY MEMORIAL HIGH SCHOOL,PARATHODU,KOTTAYAM DISTRICT.

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BY ADV.K.R.B.KAIMAL(SR) B.UNNIKRISHNA KAIMAL

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SRI.V.MADHUSUDHANAN

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RESPONDENTS:

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

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2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695014.

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3 THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM-686001.

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4 THE DISTRICT EDUCATIONAL OFFICER KANJIRAPPALLY,KOTTAYAM DISTRICT-686507.

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5 THE MANAGER GRACY MEMORIAL HIGHER SCHOOL,PARATHODU.P.O, KOTTAYAM DISTRICT-686512.

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BY ADVS.

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SRI.M.A.AUGUSTINE SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.S.EASWARAN

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SR. GP. ARAVINDA KUMAR BABU T.K.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 28699 of 2013

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V.G.ARUN, J.

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------------------------------

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W.P.(C)No.28699 of 2013

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-----------------------------------------------Dated this the 25^th day of January, 2019

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JUDGMENT

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The writ petition has been filed seeking the

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following reliefs:

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i. a writ of certiorari or any other writ or direction quashing/setting aside Exts.P-5, P-7 and P11 orders to the extent they deny approval of appointment of the petitioner U.P.S.A with effect from 1-6-2005 (without time limit).

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ii. a writ of mandamus to the 4^th respondent to reconsider approval of appointment of the petitioner as U.P.S.A due with effect from 1-6-2006, and to grant such approval by modifying the endorsement of approval made on Ext.P-2 for the period 29-8-2005 to 31-3-2006, and to grant arrears of salary to the petitioner as U.P.S.A for the period from 1-6-2005 to 4-6-2006, deducting the salary paid for the period from 29-8-2005 to 31-3-2006.

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iii. a writ of mandamus to the 4^th respondent to reconsider approval of the appointment of the petitioner as H.S.A (English) with effect from 5-6-2006 in the light of Ext.P-20 order of the government and Exts.P-22 and P-23 equivalency certificates and to approve the appointment from 5-6-2006 onwards and to grant arrears of salary for the period from 5-6-2006 to 31-5-2007.

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According to the petitioner, she was appointed

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as U.P.S.A, on 01/06/2005 as evidenced by Ext.P2 appointment order. It is pointed out that the appointment was effected in anticipation of additional posts being

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WP(C).No. 28699 of 2013

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sanctioned, consequent to Ext.P1 staff fixation order. In the fitness certificate Ext.P3, initially it was shown that there were only four class rooms in the permanent building, as a result of which, there was no additional class room for accommodating the post to which the petitioner was appointed. According to the petitioner, this mistake was subsequently corrected and the Assistant Engineer certified that the original building has got five rooms with the required specifications. The corrected fitness certificate was issued only on 29/08/2005 and resultantly, the petitioner's appointment as U.P.S.A was approved only with effect from 29/08/2005, though she was actually appointed on 01/06/2005. As against grant of approval only from a posterior date, Manager of the school filed Ext.P4 appeal and the same was rejected as per Ext.P5 order. That order was challenged by filing Ext.P6 appeal, which resulted in Ext.P7 order of rejection. Thereupon, Ext.P8 revision was filed before the Government, which initially was rejected by Ext.P9, a non-speaking order. On review being filed against Ext.P9, by the petitioner as well as the Manager,

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WP(C).No. 28699 of 2013

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the Government issued Ext.P11 holding that the request of

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the petitioner to approve her appointment as U.P.S.A from 01/06/2005 cannot be allowed.

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The learned counsel for the petitioner contends that she cannot be made to suffer for a mistake committed by the Assistant Engineer while issuing the fitness certificate for the year 2005-2006. Reliance is placed on Ext.P12 report of the Deputy Director of Education, Kottayam, in which, after inspection of the school on 01/03/2010, the Deputy Director has come to the following conclusion:

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“On examination of the building shown in the fitness certificate, it is found that the existing building (for the year 06-07) does not have any change from that of the previous years and no alteration is made on it. It seems that nobody had noticed the error of omitting one room, in the fitness certificate during the staff fixation for the year 05-06 as there were division falls and in such situations 4 rooms might have met the requirement of sufficient accommodation. I may also report that the building under dispute has 5 rooms having the specification of 6.10x6.10x4.80m. Hence the earlier fitness certificate issued by the Assistant Engineer is genuine.”

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WP(C).No. 28699 of 2013

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4. The learned counsel for the petitioner drew my

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attention to paragraph 6 of Ext.P11 to contend that the Government had failed to understand the findings in Ext.P12 in its proper perspective. It is contended that, had the findings in Ext.P12 report, filed pursuant to the direction issued by the Government understood properly, it would have been clear that the entry in the first fitness certificate, that there are only 4 class rooms, was a mistake.

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The learned Senior Government Pleader

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contends that the question to be considered is not as to whether 4 class rooms or 5 class rooms were available and that the consideration should be as to whether there were enough fit class rooms to accommodate the students during that particular academic year. On a careful scrutiny of Ext.P12 report, I am of the opinion that the Deputy Director of Education had opined that an error had occurred while issuing the fitness certificate initially and that the mistake was subsequently corrected. From a reading of Ext.P11 order, especially paragraph 6 therein, I find that the findings in

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WP(C).No. 28699 of 2013

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Ext.P12 report was not taken into account in its correct perspective by the Government. In that view of the matter, it would only be appropriate for the Government to reconsider the matter with specific reference to the findings in Ext.P12 report.

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The next contention urged by the learned counsel for the petitioner is that even though the petitioner was appointed as HSA on 05/06/2006, her appointment was approved only with effect from 01/06/2007, for the alleged reason that she had acquired the requisite qualification only subsequent to her appointment as HSA. It is contented that the petitioner had the requisite qualification, even as on the date of her appointment i.e.05/06/2006, it is pointed out that the Government have subsequently issued Ext.P20 by which the BA degree, the petitioner had at the time of her appointment, was declared to be sufficient for being appointed to the post of HSA(English). The learned Senior Government Pleader refuted the contention, on the ground that Ext.P20 dated 12/2/2013 is only prospective. It is also

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WP(C).No. 28699 of 2013

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contended that even as per Ext.P20, the BA degree qualification obtained by the petitioner, as per Ext.P13 certificate, cannot be equated with the requisite qualification. I find that the petitioner's appointment as HSA was approved with effect from 01/06/2007, as per Ext.P14. There was no immediate challenge against fixing of the date of appointment as 01/06/2007. Even as on today, no such challenge has been raised before the Educational Authorities or the Government. If that be the position, a writ of mandamus cannot be issued, even without the petitioner approaching the authorities concerned.

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In the result, the writ petition is disposed of

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setting aside Ext.P11 and directing the first respondent to consider the review applications filed by the petitioner and the Manager of the school afresh, with specific reference to the findings in Ext.P12 report, within a period of 3 months from the date of receipt of copy of this judgment. As regards the challenge against the date of appointment of the petitioner to the post of HSA, I decline to grant any relief, while at the

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WP(C).No. 28699 of 2013

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same time making it clear that this judgment will not preclude the petitioner from moving the Government, if so advised.

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The writ petition is disposed of with the above

directions.

Sd/-

V.G.ARUN

JUDGE

WP(C).No. 28699 of 2013

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE STAFF FIXATION ORDER NO.B3-5440/05 DATED 8-9-2005 ISSUED BY THE 4TH RESPONDENT EXHIBIT P2 TRUE COPY OF APPOINTMENT ORDER DATED 1- 6-2005 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE FITNESS CERTIFICATE DATED 30-6-2005 ISSUED BY THE ASSISTANT ENGINEER,BUILDINGS SECTION,KANJIRAPPALLY. EXHIBIT P4 TRUE COPY OF THE APPEAL DATED 26-12-2005 FILED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER NO.B5/1428/06/K.DIS.DATED 10-7-2006 ISSUED BY THE 3RD RESPONDENT EXHIBIT P6 TRUE COPY OF THE REVISION PETITION DATED 18-8-2006 FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE ORDER DATED 12-6-2007 ISSUED BY THE 2ND RESPONDENT EXHIBIT P8 TRUE COPY OF THE REVISION PETITION DATED 16-8-2007 FILED BY THE 5TH RESPONDENT BEFORE THE IST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE LETTER NO.78507/AH3/08/G.EDN DATED 3-2-2009 OF THE IST RESPONDENT TO THE PETITIONER. EXHIBIT P10 TRUE COPY OF THE REVIEW PETITION DATED 29-6-2009 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT.

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WP(C).No. 28699 of 2013

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EXHIBIT P11	TRUE COPY OF THE ORDER G.O(RT)NO.3876/11/G.EDN DATED 7-9-2011 ISSUED BY THE IST RESPONDENT
EXHIBIT P12	TRUE COPY OF THE LETTER NO.B5/10187/09 DATED 9-3-2010 OF THE 3RD RESPONDENT TO THE IST RESPONDENT.
EXHIBIT P13	TRUE COPY OF THE CERTIFICATE DATED 19- 10-2004 ISSUED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER
EXHIBIT P14	TRUE COPY OF THE APPOINTMENT ORDER DATED 5-6-2006 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.
EXHIBIT P15	TRUE COPY OF THE ORDER NO.B3/2174/10/K.DIS DATED 7-2-2011 ISSUED BY THE 4TH RESPONDENT
EXHIBIT P16	TRUE COPY OF THE DEGREE CERTIFICATE DATED 1-7-2009 ISSUED BY THE MADURAI KAMARAJ UNIVERSITY TO THE PETITIONER
EXHIBIT P17	TRUE COPY OF THE ORDER NO.B5/3487/2011 DATED 8-7-2011 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P18	TRUE COPY OF THE ATTENDANCE REGISTER OF PARATHODE GRACY MEMORIAL HIGH SCHOOL FOR THE MONTH OF JUNE 2006.
EXHIBIT P19	TRUE COPY OF THE LETTER NO.KII(4) 3439/06 DATED 4-3-2011 OF THE STATE PUBLIC INFORMATION OFFICER,DISTRICT OFFICE OF THE P.S.C,KOTTAYAM TO THE PETITIONER.
EXHIBIT P20	TRUE COPY OF THE G.O.(MS)NO.50/13.G.EDN DATED 12-2-2013.
EXHIBIT P21	TRUE COPY OF THE MARK LIST OF THE 5TH SEMESTER (FINAL)EXAMINATION ISSUED TO THE PETITIONER BY THE M.G.UNIVERSITY.
EXHIBIT P22	TRUE COPY OF THE EQUIVALENCY CERTIFICATE NO.AC.D/3/6661/2009 DATED 24-6-2009 ISSUED BY THE M.G.UNIVERSITY.

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WP(C).No. 28699 of 2013

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EXHIBIT P23 TRUE COPY OF THE EQUIVALENCY CERTIFICATE NO.AC.C/028112/2012 DATED 21-5-2012 ISSUED BY THE KERALA UNIVERSITY.

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\ \TRUE COPY//

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PA TO JUDGE

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P.S.Indu v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.S.Indu v. State of Kerala

Case brief

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What did the court decide?

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