Quashed

Mohammed Abdurehiman Puzhakkalakath v. State of Kerala

Kerala HC9 Nov 2022WP(C)/3584/2021

Case brief

AI extract

What is this about?

Writ petition by a High School Assistant challenging a Government order that treated his appointment as in an excess vacancy with limited tenure. The Court quashed the order for not considering factual reports and directed reconsideration within three months.

What did the court decide?

Impugned order dated 17.11.2020 quashed to the extent restricting appointment for 2003-04 to 2004-05. Respondent directed to reconsider matter by adverting to reports and pass fresh orders within thre

Mohammed Abdurehiman Puzhakkalakath Vs State… — Pension and Retirement Benefits | Kerala HC (2022)

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 IN THE HIGH COURT OF KERALA AT ERNAKULAM
 PRESENT

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 THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
 WEDNESDAY, THE 9 TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944

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 WP(C) NO. 3584 OF 2021

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 PETITIONER/S:

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 MOHAMMED ABDUREHIMAN PUZHAKKALAKATH
 AGED 43 YEARS

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 HIGH SCHOOL ASSISTANT (MALAYALAM), MOONNIYOOR HIGHER
 SECONDARY SCHOOL, MOONNIYOOR, TIRURANGADI, MALAPPURAM
 DISTRICT.

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 BY ADV P.C.SASIDHARAN

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RESPONDENT/S:

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

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2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014.

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3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676505.

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4 THE DISTRICT EDUCATIONAL OFFICER, THIRURANGADI, MALAPPURAM-676306.

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5 THE MANAGER, MOONNIYOOR HIGHER SECONDARY SCHOOL, MOONNIYOOR, MALAPPURAM-676311.

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 BY ADVS.
 ADVOCATE GENERAL OFFICE KERALA
 V.A.MUHAMMED
 M.SAJJAD

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 WP(C) NO. 3584 OF 2021

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 V.RAJASEKHARAN NAIR

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 SMT NISHA BOSE SR GP

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 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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 WP(C) NO. 3584 OF 2021

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JUDGMENT

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The petitioner states that he was appointed as a High School Assistant (Malayalam) with effect from 12.01.2004 in an anticipated additional post at the Moonniyoor Higher Secondary School, Tirurangadi, by the Manager in terms of Ext.P1 proceedings. However, his approval was rejected by the educational authorities. Though the same was challenged before the higher authorities, the order issued by the AEO was confirmed.

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The petitioner contends that by Ext.P11 order dated 20.03.2018, the Government, pursuant to directions issued by this Court in W.P.(C) No.4376 of 2008 filed by the Manager of the School, had issued directions to the DEO, Tirurangadi, to approve the appointment of the petitioner herein, on a regular scale of pay excluding the vacation salary of the year 2003-04 as HSA (Malayalam) from 12.01.2004 to the date of staff fixation order. On the strength of the said order, the petitioner is stated to have preferred Ext.P12 representation before the Government. The prayer in Ext.P12 was for a clarification of the Government Order to the effect that

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the post ordered to be created will continue to exist and the creation of the supernumerary post is not confined to 2003-04 and 2004-05 and that the petitioner would be entitled to continue approval from 2003 onwards and

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 WP(C) NO. 3584 OF 2021

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entitled for all service benefits thereto. The petitioner contends that a report was called by the Government. According to the petitioner, Ext.P13 report was submitted by the Deputy Director wherein after submitting the factual aspects, it is stated by the DDE that the petitioner could be retained as a supernumerary from 2005-06 and that there cannot be any objection in considering the said request. It is also stated that the petitioner has been working as a regular employee from 12.01.2004 onwards. It is contended

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that, without adverting to Ext.P13 report submitted by the Deputy Director, while issuing Ext.P14 order, the Government has concluded that the petitioner herein was appointed in an additional division vacancy and that the said post shall cease to exist within a period of two years and therefore it is not possible to consider the appointment of the petitioner in a regular post. It is also stated therein that even if the appointment was granted to the petitioner, she could not have been included in the Teacher's bank. The aforesaid order is under challenge in this writ petition. The relief prayed for is as under:-

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(i) to issue a writ of certiorari to quash Ext.P14 dated 17.11.2020 and Ext.P11 order dated 20.3.2018 to the extent it restricts the appointment of the petitioner for the academic year 2003-2004 and 2004-2005.

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(ii) to declare that since the petitioner being an approved teacher for the Academic Year 2003-2004, he is entitled to protection of G.O.(P) No.100/2011 and G.O.(P)

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 WP(C) NO. 3584 OF 2021

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No.199/2011.

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(iii) issue a writ of mandamus or other appropriate writ, order or direction commanding and compelling the respondents to grant the petitioner all service benefits from the Academic Year 2015-2016 onwards and to declare that his service from 12.1.2004 is regular.

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The 5th respondent has filed a counter affidavit wherein it is

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stated that prior to the amendment brought to the KER by inserting Rule 6J of Chapter XXIII of the KER, the entire student strength was reckoned for calculating the workload for regional languages disregarding whether they opt regional language or different language as their part 2 language. It is stated that as per the staff fixation order for the period 2005-06, the petitioner cannot claim for continuance from 2005-06 onwards. According to the 5th respondent, there is no admissible vacancy for accommodating the petitioner in the parent school. It is also stated that the petitioner is also not entitled to the benefits of G.O.(P) No.213/2015/G.Edn dated 06.08.2015 as the petitioner does not fall in any of the categories mentioned therein.

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The 4th respondent has also filed a counter affidavit countering the assertions of the petitioner.

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The learned counsel appearing for the petitioner submitted that the petitioner herein was appointed on 12.1.2004, much prior to the

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 WP(C) NO. 3584 OF 2021

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amendment to the KER by G.O.(P) No.92/05/G.Edn dated 19.3.2005. According to the learned counsel, at the time of the appointment of the petitioner in the academic year 2003-04, there were 18 periods available in Malayalam, and those periods are sufficient to sanction 13 posts of HSA (Malayalam). The learned counsel points out that the Deputy Director of Education, in his report, had categorically found that for the academic year 2005-06, the post which can be sanctioned and existing at the time of appointment of the petitioner is 13. It is submitted that without taking note of the report submitted by the Deputy Director as well as the DEO, Ext.P14 has been issued. The learned counsel also submitted that Ext.P15 report submitted by the DEO also favors the petitioner. According to the learned counsel, in view of the above, it would only be just and proper to issue directions to the 1st respondent to reconsider the matter by adverting to the report submitted by the DDE and the DEO.

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While opposing the submissions of the learned counsel appearing for the petitioner, the learned counsel appearing for the Manager submitted that by Ext.P11 order, the petitioner had worked for a brief period from 12.01.2004 till the date of staff fixation order. According to the learned counsel, it is on the basis of the interim order dated 11.02.2021 that the petitioner is continuing in service. It is also submitted that the report of the DEO which is produced as Ext.P15 will not favour the case of

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 WP(C) NO. 3584 OF 2021

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the petitioner herein as the DEO has clearly reported that the period from

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2018-19, there were no posts to accommodate the petitioner herein.

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I have considered the submissions advanced and have

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perused the records.

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I find that while issuing Ext.P14 order, the 1st respondent has taken the view that the petitioner was appointed to an excess vacancy and the said vacancy has ceased to exist within a period of two years. It was also found that the petitioner’s appointment cannot be treated as a regular appointment and therefore, no procession can be granted. However, in Ext.P13 report submitted by the DDE, the said authority has taken the stand that for the academic year 2005-2006, 13 posts could be sanctioned and it continued till the academic year 2011-2012. 14 posts could be sanctioned from 2013-2014 to 2017-2018 and from 2018-2019, 13 posts could be sanctioned. It is also stated that there is reduction in the staff fixation order only for the academic year 2019-2020 owing to which the petitioner was declared as a supernumerary. The specific case of the petitioner is that while issuing Ext.P14 order though reference is made to the order issued by the DDE, the factual aspects mentioned therein were not adverted to. On going through Exts.P13 and P14, there appears to be some merit in the submissions advanced. The factual aspects mentioned in

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 WP(C) NO. 3584 OF 2021

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Ext.P13 has not been considered by the 1st respondent while issuing the impugned order. I also find that Ext.P15 report was submitted by the DEO and the same was also available before the 1st respondent. In view of the non-consideration of Exts.P13 and P15 by the 1st respondent, I am of the view that the matter requires reconsideration.

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In view of the discussion above, I dispose of this writ petition by issuing the following directions.

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Ext.P14 will stand quashed to the extent that it restricts the appointment of the petitioner for the academic year 2003-2004 and 2004-2005. There will be a direction to the 1st respondent to reconsider the matter, after adverting to Exts.P13 and P15 and pass fresh orders in accordance with law. Appropriate orders shall be passed expeditiously, in any event, within three months from the date of receipt of a copy of this judgment. Before passing orders, sufficient opportunity shall be afforded to the petitioner and the 5th respondent. It is made clear that this Court has not expressed any opinion on the merits of the matter and the 1st respondent shall be free to pass orders by adverting to the reports submitted by his subordinate officers. Until orders are passed by the 1st

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 WP(C) NO. 3584 OF 2021

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respondent, the interim order dated 11.02.2021 permitting the

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petitioner to continue in service shall continue.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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sru

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 WP(C) NO. 3584 OF 2021

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APPENDIX OF WP(C) 3584/2021

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 PETITIONER EXHIBITS

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 EXHIBIT P1 TRUE COPY OF THE ORDER DATED 22.06.2014 WITH
 TRANSLATION.

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 EXHIBIT P2 TRUE COPY OF THE ORDER DATED 28.01.2005.
 EXHIBIT P3 TRUE COPY OF ORDER DATED 08.02.2006.
 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14.07.2004 WITH
 TRANSLATION.
 EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER DATED
 15.07.2000 (GO(MS)NO.237/2000/G.EDN.)
 EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 08.07.2004 IN
 W.P(C)NO.7455/2004.
 EXHIBIT P7 TRUE COPY OF THE ORDER G.O(MS)NO.135/04/G.EDN
 DATED 15.05.2004 IMPOSING RESTRICTION OF
 APPOINTMENT IN LANGUAGE TEACHER.
 EXHIBIT P8 TRUE COPY OF THE ORDER DATED 29.10.2007
 REJECTING THE REVISION PETITION.

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 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 19.11.2013 IN
 W.P.(C)NO.4376/2008.
 EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN W.A.NO.1030/2014
 DATED 12.07.2016.
 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 20.3.2018.
 EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED
 17.11.2018.
 EXHIBIT P13 TRUE COPY OF THE REPORT FILED BY THE 3RD
 RESPONDENT.
 EXHIBIT P14 TRUE COPY OF THE ORDER DATED 17.11.2020 ISSUED
 BY THE 1ST RESPONDENT.

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 WP(C) NO. 3584 OF 2021

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 EXHIBIT P15 TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT
 DATED 30.05.2019.

Mohammed Abdurehiman Puzhakkalakath v. State of Kerala

Case brief

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Mohammed Abdurehiman Puzhakkalakath v. State of Kerala

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