Allowed

Jeela. N v. State of Kerala

Kerala HC15 Mar 2024WP(C)/22026/2021

Case brief

AI extract

What is this about?

A school employee challenged the appointment of another staff member in his vacancy, claiming preference under state rules. The court held the appointment violated the petitioner's rights. It allowed the writ petition, quashed orders allowing the rival's appointment, and directed the respondents to retain the petitioner's approved positions.

What did the court decide?

The writ petition was allowed; orders P2 and P3 were quashed; directions were issued to retain the petitioner's approved lien in the posts of FTM and Office Attendant.

Jeela. N Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2024)

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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 MOHAMMED NIAS C.P.

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FRIDAY, THE 15^TH DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 WP(C) NO. 22026 OF 2021

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PETITIONER:

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JEEJA. N, AGED 49 YEARS W/O SURESHKUMAR, OFFICE ATTENDANT, NANMINDA HSS, NANMINDA, THAMARASSERY-673613. (RESIDING AT SREYAS, PADINJATTUMURI, KAKKODI P.O, KOZHIKKODE-673611).

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BY ADVS. T.T.MUHAMOOD A.RENJIT V.E.ABDUL GAFOOR A.MOHAMMED SAVAD T.R.VISHNU

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RESPONDENTS:

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

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

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3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DDE, KOZHIKKODE-673001.

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4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DEO, THAMARASSERY-673613.

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5 THE MANAGER NANMINDA HSS, NANMINDA, THAMARASERY, KOZHIKODE-673013.

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WP(C)No. 22026 of 2021

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6 K.MIRSHAD FTCM, NANMINDA HSS, NANMINDA, THAMARASSERY, KOZHIKODE-673613.

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7 C.K.ANILKUMAR CLERK, NANMINDA HSS, NANMINDA, THAMARASSERY, KOZHIKODE-673613. BY ADVS. ADVOCATE GENERAL OFFICE KERALA P.NANDAKUMAR BY SMT.SAROJINI.K.G., SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 12.03.2024, THE COURT ON 15.03.2024 DELIVERED THE FOLLOWING:

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WP(C)No. 22026 of 2021

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J MOHAMMED NIAS C.P., J.

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WP(C)No. 22026 of 2021

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Dated this the 15^th day of March, 2024

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JUDGMENT

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The petitioner joined as FTM on 6.8.2007 in Nenminda Higher Secondary School, Thamarasseri, an aided Higher Secondary School. The petitioner was initially appointed as FTM in the school on a regular basis with effect from 6.8.2007 against a promotion vacancy of one Sri.C.K.Shameer, who was promoted as Lab Assistant. The petitioner's appointment was approved. While so, C.K.Shameer availed LWA to take up employment abroad for five years from 1.6.2010 and against the said vacancy, the petitioner was temporarily promoted as Lab Assistant from 10.6.2010 to 31.05.2015. Thereafter, when the LWA was extended and the petitioner's appointment was also extended. Both these appointments were approved. While so one Sainaba, the Clerk of the school retired from service on 31.05.2016 and against the said retirement vacancy one Anilkimar was appointed as Clerk from 1.6.2016., the seventh respondent. Against the vacancy of Anilkumar, the petitioner was appointed as Office

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WP(C)No. 22026 of 2021

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Attendant with effect from 1.6.2016 on a regular basis as per Ext.P1 order. The appointment of petitioner as Peon (Office Attendant) on a regular basis with effect from 1.6.2016 was approved by order dated 30.03.2019, and this was endorsed on Ext.P1.

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While so, the third respondent as per order dated 19.8.2017 ordered that the approval of the appointment granted to the petitioner as FTM from 6.8.2007 and Smt.Sindhu on 1.4.2011 needs to be reviewed, considering the claim of the sixth respondent in terms of Rule 51A of Chapter XIV-A KER. This was done by Ext.P2 order on a petition by the sixth respondent and it was passed without hearing the petitioner or Smt.Sindhu. Aggrieved by the said order the manager submitted a revision before the second respondent on 9.2.2018. The second respondent after a lapse of nearly two years affirmed Ext.P2 order and directed to review the appointment of respondents 6 and 7 and to grant consequential promotion to the sixth respondent as per Ext.P3 order. The petitioner submits that Ext.P3 was passed without hearing him. The effect of implementing Exts.P2 and P3 orders would result in even the retrenchment of the petitioner from the post Office Attendant and the petitioner who has been working as Office Attendant from 1.12.2015 will be reverted.

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WP(C)No. 22026 of 2021

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The sixth respondent contended that she was appointed as a Clerk from 5.6.2006 to 24.9.2007 in the vacancy of one V.P.Satheeshkumar a leave substitute Clerk who was working in the LWA vacancy of one K.Sainaba, who got promoted as UPSA. The appointment of the sixth respondent was approved from 5.6.2006 to 24.9.2007. The respondent was again appointed in the extended leave vacancy from 25.9.2007 to 24.7.2009 without interruption. The petitioner had also worked from 25.9.2009 to 24.9.2012 which was also approved. Thereafter during another spell from 24.9.2012 to 24.09.2014 also the respondent was appointed and approved. Sainaba had rejoined duty on 25.9.2014 and consequently, the respondent was ousted from service. Thereafter, when Sainaba retired on 31.05.2016 in that vacancy the seventh respondent who was an Office Attendant was promoted and considering the claim of the petitioner, the sixth respondent was appointed as FTM from 1.6.2016 in the promotion vacancy of the petitioner. The same was also approved as per Ext.R6(e). The dispute in the present case arises based on the claim raised by the sixth respondent that when the petitioner was appointed on 6.8.2017, the sixth respondent who was already working from 5.6.2016 till 24.9.2014 9 had a claim under Rule 51A of Chapter XIV A KER and on the day the petitioner was appointed, the sixth respondent ought to have been appointed as FTM.

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WP(C)No. 22026 of 2021

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This is resisted by the petitioner stating that the claim under Rule 51A would arise only when an incumbent is retrenched after putting in one year of service. Since he was continuously working, there is no claim of the sixth respondent getting the benefit of Rule 51A. He also points out that this Court in Sreejith T. and another v. Manager, A.M.Upper Primary School, Punnathala and others [ 2022 (6) KHC 72] held that only those qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have a preference for appointment to future vacancies and the said provision is not intended to confer a claim for preferential appointment to persons who are already working but intended only to confer a claim for preferential appointment to those teachers who were relieved in the contingencies mentioned in provision and remaining unemployed. Going by the statutory provisions as well as the dictum of the judgment, it is clear that the sixth respondent was working when the petitioner was appointed, and therefore his claim under Rule 51A could not have been considered then. That apart, the impugned orders were passed without hearing the petitioner. It is also to be noted that the sixth respondent never raised a claim against the petitioner who was appointed in the year 2007 up till 2014, therefore the claim of the sixth respondent is also hit by latches.

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For the above reasons, the impugned orders cannot be sustained. The writ petition is allowed, Exts.P2 and P3 are quashed and there will be a direction to respondents 1 to 4 to retain the approval granted to the petitioner in the post of FTM with effect from 6.8.2007 and in the post of Office Attendant with effect from 1.6.2016. There will be a further direction not to shift the approved lien of the petitioner in the respective posts.

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The writ petition is allowed as above.

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Sd/-

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MOHAMMED NIAS C.P.

JUDGE

dlk/13.3.2024

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APPENDIX OF WP(C) 22026/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF ORDER DATED 01.06.2016 ISSUED BY THE 5TH RESPONDENT APPOINTING THE PETITIONER AS OFFICE ATTENDANT.

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EXHIBIT P2 TRUE COPY OF ORDER NO.B1/277/2017/K.DIS DATED 19.08.2017 (WITH TYPED COPY). EXHIBIT P3 TRUE COPY OF ORDER NO.EM(3)/16727/2018/DGE/K.DIS DATED 17.04.2021 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENTS EXHIBITS

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EXHIBIT R6(A)	TRUE COPY OF ORDER 20-01-2007 ISSUED BY	NO.K.DIS A1/3893/06 DATED THE 4TH RESPONDENT.
EXHIBIT R6(B)	TRUE COPY OF ORDER 14-1-2008 ISSUED BY T	NO.A1/6955/07/K.DIS DATED HE 4TH RESPONDENT.
EXHIBIT R6(C)	TRUE COPY OF ORDER 18-12-09 ISSUED BY TH	NO.K.DIS.A1/6458/09 DATED E 4TH RESPONDENT.
EXHIBIT R6(D)	TRUE COPY OF ORDER 20.08.13 ISSUED BY TH	NO.K.DIS.A1/7810/12 DATED E 4TH RESPONDENT.
EXHIBIT R6(E)	TRUE COPY OF ORDER 11-2019 ISSUED BY THE	NO.A5/14822/2019 DATED 26- 4TH RESPONDENT.
EXHIBIT R6(F)	TRUE COPY OF ORDER 2008 ISSUED BY THE 4T	NO.A1/2805/08 DATED 26-05- H RESPONDENT.
EXHIBIT R6(G)	TRUE COPY OF ORDER N 28-02-2012 ISSUED BY	O.K.DIS A1-2072/2011 DATED THE 4TH RESPONDENT.
EXHIBIT R6(H)	TRUE COPY OF JUDGMENT	DATED 15.06.2016 IN WP(C)

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20400 OF 2016.

EXHIBIT R6(I) TRUE COPY OF ORDER NO.A5/5098/2016/K.DIS. DATED 04-08-2016 ISSUED BY THE 4TH RESPONDENT.

Jeela. N v. State of Kerala

Case brief

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Jeela. N v. State of Kerala

Case brief

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