Writ petition by aided school staff seeking to quash a Government letter excluding them from Haj Volunteer selection. The High Court held aided school employees are not Government employees under the Kerala Public Services Act and dismissed the writ.
The Writ Petition fails and is accordingly dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941
WP(C).No.2944 of 2019
PETITIONER/S:
1 MUHAMMED ASHARAF M.K., AGED 44 YEARS, S/O. ABDULLA, RESIDING AT 'DHANUVAMPURATH MEETHAL HOUSE', KOZHUKKALLUR P.O., MEPPAYUR, KOZHIKODE 673 524.
2 BENAZAR T., AGED 44 YEARS, W/O. RASHEED THATTANKANDIYIL, RESIDING AT 'THATTANKANDIYIL HOUSE', PERINGATHUR P.O., KANNUR 673 316.
BY ADVS. SRI.S.MUHAMMED HANEEFF SMT.MINU BABU SMT.SHAIMA VAHAB SRI.M.H.ASIF ALI SRI.T.SAILESH KUMAR
RESPONDENT/S:
1 HAJJ COMMITTEE OF INDIA, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, BAIT-UL-HUJJAJ (HAJ HOUSE), 7-A, M.R.A. MARG, (PALTON ROAD), MUMBAI - 400001.
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5 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, PERSONNEL & ADMINISTRATIVE REFORMS (RULES) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADVS. R3 & R5 - SMT. PRINCY XAVIER, GOVERNMENT PLEADER R4 - SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C.R.
JUDGMENT
This writ petition is filed by the petitioners who are working as H.S.T (Malayalam) and Lab Assistant respectively, in a Government aided Higher Secondary School at Peringathur, seeking to quash Ext.P4 communication of the Government dated 13.03.2013, clarifying that since aided school employees do not come under the purview of the Kerala Public Services Act, they cannot be treated as Government employees, and further to direct respondents 1 to 3 to consider the applications of the petitioners for selection of Haj Volunteers, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows:
appointments have been approved and salary is disbursed by the Government of Kerala. They are Muslims by faith
and have performed Haj/Umrah, and since they are
working in aided school, their service being governed
by the Kerala Education Act, 1958 and the Kerala
Education Rules, 1959, and their entire service
benefits including salary are disbursed by the Government, they are qualified to be selected as Haj
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Volunteers (Khadim-ul-Hujjaj).
inviting applications for such volunteers from Muslim employees of Government/Public Sector Units/Statutory bodies for the year 2019. Petitioners who are aided school staff with approved service and allegedly qualified as per Ext.P1 notification, submitted Exts.P2 and P3 applications in the prescribed format along with the prescribed documents. But, their applications were
not considered and were informed that, the 5th respondent consequent to Ext.P4 letter, had informed the 3rd respondent that, aided school employees do not come under the purview of Kerala Public Services Act and, they cannot be termed as 'Government Servants' for
the purpose of deputing them as Haj Volunteers. Therefore, according to the petitioners, Ext.P4 is illegal and arbitrary and is liable to be interfered with by this Court.
Committee, refuting the allegations and claims and demands raised by the petitioners. According to the 3rd respondent, as per Rule 9B Part-II KS&SSR dealing with deputation of employees, aided school employees do not
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come under the purview of Kerala Public Services Act
and, therefore, they cannot be appointed on deputation basis. Though aided school employees are governed by Kerala Education Act and Rules, they are not appointed by the Government or an officer authorized by the Government; instead appointments are made by the respective managers of the aided schools concerned. That apart, it is pointed out that, in accordance with the judgment in W.P.(C) No.33619/2007 dated 14.03.2011,
teachers of the aided school and those in Government service constitute two different classes, even though
their duties and functions may be similar and qualification for both appointments are also similar. So also, in the method of appointment and other related matters, aided school teachers cannot be compared with a Government School teacher, and they constitute a homogeneous class, and therefore, the aided school teachers cannot be considered as Government employees.
school which is recognized, and is receiving aid from the Government shall not include educational institutions entitled to receive grants under Article 337 of the Constitution of India. As per Clause 2(g) of Ext.P1 Circular, applications were called from
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Employees of Government/Public Sector Units/Statutory Bodies for nominating the Haj Volunteers, and the said circulars are issued by the 1st respondent every year, and Ext.P4 clarification letter was issued by the 5th respondent as a reply to one such Office Memorandum of the 4th respondent i.e., Union of India, on 15.01.2013. Before issuance of Ext.P4, employees from aided schools and temporary service from other Departments were also nominated as Volunteers. However, as per AnnexureR3(a), the Haj Committee of India had changed the norms for notifications as KuH. So also, in accordance with Ext.P1 notification, the volunteers can only be from members of Muslim employees of Government/Public Sector Units/Statutory Bodies. Therefore, according to the 3rd respondent, petitioners are not entitled to be appointed as Haj Volunteers.
stating that the applications are forwarded by the State Government on the basis of the Circular issued by
the Haj Committee of India for the year 2019. Annexure-R4(a) Circular was issued, prescribing the modalities for securing the applications and forwarding the same to the Haj Committee of India.
W.P.(C) No.2944 of 2019
counsel for the petitioners, Smt.Princy Xavier, learned Government Pleader appearing for respondents 3 and 5, and Sri. P. Vijayakumar, learned ASGI appearing for the 4th respondent and perused the pleadings and the documents on record.
petitioners are employees of a Government aided school, they cannot be treated as 'Government employees',
because their appointment is not made by the State Government, on the other hand, they are appointed by
the manager of the school, to which Government is providing aid on the basis of the recognition/approval as per the provisions of the Kerala Education Act and Rules. Moreover, as per the provisions of Rule 9B Part-II KS&SSR, the aided school employees do not come under the purview of the Kerala Public Services Act,
and they cannot be appointed on deputation basis. There is no manner of role for the Government in the matter of regulating and controlling the employees of aided schools, and their disciplinary authority is the management. Merely because the Government officials function as appellate and revisional authorities, that by itself can never be treated as any power or
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authority exercised by the Government against the employees of aided schools, since, by discharging such functions, the authorities are only evaluating the correctness of the decision taken by the management. Merely because grant is provided by the Government to aided schools, the employees cannot be treated and termed as 'Government employees'. That apart, from Ext.P1 Circular issued by the Haj Committee of India, it is clear that the applicants must be employees of Government/Public Sector Units/Statutory Bodies, and in my opinion, aided teachers will not come under any of those categories.
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conditions prescribed under the aforesaid Act and
Rules. Which thus means, Government aided school by itself is not a statutory body created under the Act and Rules, so as to secure advantage of Ext.P1 Circular.
Black's Law Dictionary, Ninth Edition, to mean; “Of or relating to legislation, legislatively created, conformable to a statute” etc. Therefore, going by the language of the provisions of the Education Act and Rules, it can never be gathered that the Government aided schools have the trappings and characteristics of a statutory body, enabling the petitioners to make any claim on the basis of Ext.P1 notification. So much so, the structural frame work of the Act and Rules is intended only for the purpose of recognition/approval, and extend aid only, which action can never be termed as a statutory recognition given by the Government to the aided educational institutions. Therefore, it cannot be said that petitioners are entitled to submit applications in accordance with Ext.P1, in the sector of statutory bodies.
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Government that, aided school teachers are not Government employees, cannot be said to be bad, arbitrary or illegal, justifying interference of this Court. Evaluating the factual and legal circumstances pointed out above, I do not think petitioners have made out a case justifying interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India.
The writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P.CHALY
JUDGE
St/25.07.2019
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CIRCULAR BEARING NO HAJ2019/6 DATED 28.12.2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE FILLED UP ONLINE APPLICATION FORM SUBMITTED BY THE 1ST PETITIONER.
EXHIBIT P3 A TRUE COPY FILLED UP ONLINE APPLICATION FORM SUBMITTED BY THE 2ND PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE LETTER BEARING NO. 4420/R1/2013/P & ARD DATED 13.3.2013 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.
RESPONDENT'S/S ANNEXURES:
ANNEXURE R3(A) A TRUE COPY OF OFFICE MEMORANDUM DATED 15.01.2013 OF THE 4TH RESPONDENT.
ANNEXURE R3(B) A TRUE COPY OF LETTER NO.RULES-1/46/2019P&ARD DATED 04.02.2019.
ANNEXURE-R4(A) TRUE COPY OF THE CIRCULAR DATED 28.12.2018 ISSUED BY THE HAJ COMMITTEE OF INDIA.
//TRUE COPY//
P.S. TO JUDGE
St/-
3 issues framed by the court
Whether employees of a Government aided school, recognised under the Kerala Education Act, can be treated as Government employees for selection as Haj Volunteers.
Whether the Government clarification that aided school employees do not come under the Kerala Public Services Act is bad, arbitrary or illegal.
Whether the Court can exercise its power of judicial review under Article 226 to direct the Haj Committee to consider applications of aided school staff.
1 provisions across 1 enactments
Muhammed Asharaf M.K.
Benazar T.
Hajj Committee of India
Kerala State Hajj Committee
The Executive Officer, Kerala State Hajj Committee
Union of India
Shaji P.Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
