Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 31ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 WP(C) NO. 16847 OF 2023 PETITIONER: SAJITHA JOSEPH AGED 41 YEARS PORATTUKKARA HOUSE, MARATHAKKARA P.O., OLLUR, THRISSUR DISTRICT, PIN-680306, NOW WORKING AS HST (ENGLISH), O.L.F.G.H.S., MATHILAKAM, THRISSUR,, PIN - 680685 BY ADV V.VIJULAL RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM,, PIN - 695001 2 THE DIRECTOR OF GENERAL EDUCATION OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM,, PIN - 695014 3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM, KAKKANAD,, PIN - 682030 4 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, 2ND FLOOR, CIVIL STATION, AYYANTHOLE, THRISSUR,, PIN - 680003 5 DISTRICT EDUCATIONAL OFFICER, OFFICE OF DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, PIN - 682011 6 DISTRICT EDUCATIONAL OFFICER, OFFICE OF ASSISTANT EDUCATIONAL OFFICER, IRINJALAKUDA, PIN - 680121 7 THE MANAGER, CORPORATE MANAGEMENT OF THE TERESIAN CARMELITE, SISTERS OF ERNAKULAM, COCHIN, PIN - 682011
BY ADVS. V.A Muhammed M.SAJJAD(K/335/1997) OTHER PRESENT: SMT.NISHA BOSE, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.V.KUNHIKRISHNAN --------------------- --------------------------- Dated this the 31st day of May, 2023
JUDGMENT
This writ petition is filed with the following prayers:-
“I) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 5th respondent to approve the appointment of petitioner as UPST at St.Antony's H.S.S. Kacheripady, with effect from 15.7.2021 in the scale of pay and to disburse the arrears of salary and other allowances due to her within such time fixed by this Hon'ble Court;
II) To issue a writ of certiorari or any other appropriate writ, order or direction calling upon the records pertaining to Exhibits P3 to P6 and quash the same; III) To issue a writ of mandamus or any other appropriate writ, order or direction to the 1st respondent to consider and pass orders of Exhibit P12 review petition dehors Exhibit P6 within such time fixed by this Hon'ble Court; IV) To grant such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case. V) To dispense with translation of filing of vernacular documents.” (SIC)
2. The petitioner is mainly aggrieved by Ext.P6 order
passed by the 1st respondent. Ext.P6 is an order passed by the Government invoking the powers under Rule 92 Chapter XIV A KER. Ext.P6 is in a form of letter. This Court in Sudheer T. vs. M.V.Susheela and others (2009 (3) KHC 991) considered this point and observed like this. The observation is extracted hereunder:- “So, whatever be the nature of the jurisdiction, whether it be appellate or revisional, conferred on the Government, they must take the decision, as provided under Art.166 of the Constitution of India, read with the relevant Rules of Business.”
3. I am of the opinion that Ext.P6 is not in tune with
the principle laid down by this Court in Sudheer T. vs. M.V.Susheela (supra). Therefore, without expressing an opinion on merit, Ext.P6 can be set aside and the matter can be remitted back to the 1 st respondent for afresh consideration, in accordance with law. All the contentions raised by the petitioner in this writ petition are left open. While deciding the matter, the 1 st respondent will also consider Exts.P7 and P8 judgment and Exts.P9 to P12 Government orders also. Therefore, this writ petition is disposed of with the following directions:- i) Ext.P6 is set aside.
ii) The 1st respondent is directed to consider and pass fresh orders, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. iii) While deciding this matter, the 1st respondent also consider the dictum laid down by this Court in Exts.P7 and P8 judgments and also the applicability of Exts.P9 to P12 Government Orders. iv) The 1st respondent will also consider Ext.P1 while deciding the matter. v) The petitioner will produce a certified copy of this
judgment along with a copy of this writ petition
before the 1st respondent for compliance. Sd/- P.V.KUNHIKRISHNAN JUDGE bng APPENDIX OF WP(C) 16847/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF APPROVAL ORDER NO. B6/21134/2021 DATED 14.9.2021 Exhibit P2 TRUE COPY OF APPOINTMENT ORDER OF PETITIONER DATED 15.7.2021 ISSUED BY THE 7TH RESPONDENT Exhibit P3 TRUE COPY OF ORDER NO. B2/27104/2021 DATED 22.9.2021 ISSUED BY THE 5TH RESPONDENT Exhibit P4 TRUE COPY OF ORDER NO. B2/21493/2021 DATED 13.5.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P5 TRUE COPY OF ORDER NO. EC3/237144/2022 DATED 23.7.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF COMMUNICATION NO. GEDN- E1/270/2022-G.EDN DATED 18.04.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P7 TRUE COPY OF JUDGMENT DATED 7.9.2016 IN W.P.(C) NO. 29317/2016 OF THIS HON'BLE COURT Exhibit P8 TRUE COPY OF JUDGMENT DATED 7.8.2017 IN WRIT APPEAL NO. 135/2017 OF THIS HON'BLE COURT Exhibit P9 TRUE COPY OF G.O.(RT) NO. Exhibit P10 TRUE COPY OF G.O.(RT) NO. Exhibit P11 TRUE COPY OF G.O.(RT) NO. Exhibit P12 TRUE COPY OF REVIEW PETITION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P13 TRUE COPY OF G.O.(MS) NO. 111/2022/GEDN DATED 25.6.2022 Exhibit P14 TRUE COPY OF CIRCULAR NO. H2/295299/2021/DGE DATED 23.11.2022 ISSUED BY THE 2ND RESPONDENT