Allowed

Hamja Beegum S., v. the State of Kerala

Kerala HC24 Nov 2022WP(C)/31453/2022

Case brief

AI extract

What is this about?

Single judge bench held that under Kerala Education Rules, the post of Office Attendant in an aided Upper Primary School is mandatory irrespective of economic status. Court quashed rejection of petitioner's appointment and directed approval of regular pay with effect from 01.08.2019.

What did the court decide?

Quashing of P2, P5 and P6 orders. Direction to 4th respondent to grant approval of appointment as full-time office attendant on regular pay basis we.f..1.8.2019 with all consequential benefits within

Hamja Beegum S., Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

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WP(C) NO. 31453 OF 2022

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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 RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 24^TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944

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WP(C) NO. 31453 OF 2022

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PETITIONER/S:

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HAMJA BEEGUM S OFFICE ATTENDANT, G.J.M. U.P. SCHOOL, KALLELI, PATHANAMTHITTA DISTRICT, PIN -689691.

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BY ADV V.B.PREMACHANDRAN

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF DIRECTOR OF GENERAL EDUCATION, JAGATHY P.O., THIRUVANANTHAPURAM - 695 014.

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3 THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA, PATHANAMTHITTA.P.O., PIN- 683 645.

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4 THE ASSISTANT EDUCATIONAL OFFICER, KOZHENCHERY, THEKKEMALA P.O., PATHANAMTHITTA DISTRICT, PIN - 695 654.

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WP(C) NO. 31453 OF 2022

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ADDRESS OF R4 IS CORRECTED AS “ ASSISTANT EDUCATIONAL OFFICER, KONNI, ASSISTANT EDUCATION OFFICE, CIVIL STATION, KONNI P.O., PATHANAMTHITTA, PIN-689691”

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AS PER ORDER DATED 22.12.22 IN IA NO.1/2022. 5 MANAGER, G.J.M. U.P. SCHOOL, KALLELI, PATHANAMTHITTA DISTRICT, PIN -689691.

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BY ADVS. SANTHOSH MATHEW ARUN THOMAS KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW

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SMT. ANIMA M., GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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The address of R4 as “Assistant Educational Officer, Kozhencherry, Thekkemala, Pathanamthitta District” occurring in the causelist of Judgment dated 24/11/2022 in WP(C) 31453/2022 is corrected and substituted as “Assistant Educational Officer, Konni, Assistant Education Office, Civil Station, Konni P.O., Pathanamthitta, Pin689691” as per order dated 22/12/2022 in I.A. No.1/2022 in WP(C) 31453/2022.

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Sd/-

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Assistant Registrar

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WP(C) NO. 31453 OF 2022

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JUDGMENT

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This writ petition is filed seeking the following reliefs:

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(i) To issue a writ of certiorari or any other appropriate order or direction, to call for the records leading to Exhibits P2, P5 & P6 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 4th respondent Assistant Educational Officer, to approve the appointment of the petitioner as full-time Office Attendant on regular pay basis we.e.f. 1.8.2019 and to grant all consequential benefits;

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2. The petitioner states that she was appointed as Office Attendant on

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01.08.2019 in a retirement vacancy that arose on 31.07.2019 in G.J.M U.P.

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School, Kalleli, an aided school covered under the Kerala Education Act and

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the Rules framed thereunder. Referring to Ext.P3 staff fixation order issued by

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the 3rd respondent, it is stated that one post of Office Attendant was

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sanctioned by the 4th respondent. The petitioner’s assertion is that on the

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strength of Ext.P3, the appointment of the petitioner is liable to be approved.

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However, by Ext.P2 order, approval was rejected on the ground that the

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WP(C) NO. 31453 OF 2022

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school is uneconomic.

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The learned counsel appearing for the petitioner submitted that the

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issue raised in this writ petition is covered by the judgment of a Division Bench

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of this Court in Writ Appeal No.1358 of 2021 and connected cases, a copy of the same is produced as Ext.P7. According to the learned counsel, Chapter XIV

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A of the Kerala Education Rules mandates that the post of Peon in every

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school is mandatory whether or not there are sufficient students.

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I have heard Sri. V.B. Premachandran, the learned counsel appearing

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for the petitioner, Smt. Anima M., the learned Government Pleader and Sri.

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Santhosh Mathew, the learned counsel appearing for the Manager.

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There is no dispute that as per the staff fixation order in respect of

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the School in which the petitioner is working, there is only one post of Office/Attendant/Peon. The only reason stated by the official respondents to

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decline the sanctioning of pay and other allowances attached to the post is that the School in which the petitioner is working is uneconomic. The Division

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Bench of this Court in Exhibits P7 and P8 has held that unlike in the case of

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WP(C) NO. 31453 OF 2022

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teaching staff, the provisions of Chapter XXIV B, read with Chapter XXIV A of

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the KER, mandate that in every Upper Primary School, there can be appointed

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in the non-teaching establishment of such school, one Peon (subsequently redesignated as Office Attendant). The posts of Peon/Office Attendant were not such as were likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the

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school concerned. The Division Bench went on to hold that the stand of the Educational Authorities/Government that the post of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on a daily wage basis to be legally unsustainable. So long as there is a vacancy to an established post of

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Peon/Office Attendant, and the post is not likely to be abolished in any staff fixation conducted in the school, the appointments made to the post have to be approved on a regular scale of pay and not on a daily wage basis. In view of the law laid down by the Division Bench, the petitioner is entitled to succeed.

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Resultantly Exts.P2, P5, and P6 orders will stand quashed. There will be

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a direction to the 4th respondent to reconsider the matter in light of the law

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WP(C) NO. 31453 OF 2022

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laid down in Exts.P7 and P8 and grant approval to the appointment of the

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petitioner as full-time office attendant on a regular pay basis with effect from

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1.08.2019 with all consequential benefits. Orders shall be passed

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expeditiously, in any event, within eight weeks from the date of receipt of a copy of this judgment.

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This Writ petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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WP(C) NO. 31453 OF 2022

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APPENDIX OF WP(C) 31453/2022

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PETITIONER(S) EXHIBITS :

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Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.8.2019 ISSUED BY THE 5TH RESPONDENT. Exhibit P2 TRUE COPY OF THE ORDER NO.C/14852/2019 DATED 19.12.2019 ISSUED BY THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE ORDER NO.C/50927/2019 DATED 17.7.2019 ISSUED BY THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE ORDER NO.B1/191040/2020 DATED 18.5.2020 ISSUED BY 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE G.O. (P) NO.3/2019/G. EDN DATED 28.2.2019 PUBLISHED IN THE KERALA GAZETTE. Exhibit P6 TRUE COPY OF THE CIRCULAR NO.J2/57/2019/ G.EDN DATED 8.3.2019 ISSUED BY GOVERNMENT OF KERALA. Exhibit P7 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO. 1358/2021 DATED 10.11.2021. Exhibit P8 TRUE COPY OF THE JUDGMENT IN REVIEW PETITION NO.916/2021 DATED 16.12.2021.

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RESPONDENT(S) EXHIBITS : NIL

Hamja Beegum S., v. the State of Kerala

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Hamja Beegum S., v. the State of Kerala

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