Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 WP(C) NO. 32280 OF 2022 PETITIONER: MANAGER C.P.POCKER HAJI MEMORIAL HIGHER SECONDARY SCHOOL, OZHUR, VELLACHAL.P.O, MALAPPURAM DISTRICT-676106. BY ADVS. M.R.ANISON V.BHARGAVI (PANANGAD) P.A.RINUSA RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION REGIONAL OFFICE, MALAPURAM-676505. 4 HARIPRASAD, LOWER DIVISION CLERK, C.P.POCKER HAJI MEMORIAL HIGHER SECONDARY SCHOOL, OZHUR, VELLACHAL.P.O, MALAPPURAM DISTRICT-686106.
OTHER PRESENT: SRI.K.M. FAISAL GP SMT. NISHA BOSE SR,GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.V.KUNHIKRISHNAN, J.
-------------------------------- W.P.(C).No.32280 of 2022 ---------------------------------------------- Dated this the 01st day of March, 2023
JUDGMENT
This writ petition is filed with following prayers:
i. To issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P7 order, since that order had been issued in violation of the provisions of Kerala Education Act and Rules 3,4 and 5 of Chapter XXXII KER; ii. To issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P7 order, since the same had been issued in violation of petitioner's Fundamental Right under Article 14 & 30(1) of the Constitution. iii. To issue a writ of mandamus or other appropriate writ, order or direction directing 2 nd and 3rd respondents to sanction the required number of Non-teaching posts in the Higher Secondary section of petitioner's school, as mandated in Chapter XXXII KER. iv. To issue a writ of mandamus or other appropriate writ, order or direction directing 2 nd and 3rd respondents to approve 4th respondent's appointment as Lower Division Clerk in the
Higher Secondary section of petitioner's school w.e.f. 10.11.2021, and to sanction and disburse all consequential monetary and other service benefits attached to that post w.e.f. 10.11.2021 onwards. v. To exempt the petitioner from producing the English Translation of Malayalam Exhibits produced along with this writ petition and the petitioner further undertakes that he is ready and willing to produce English translation of Malayalam documents as and when required. vi. To pass such other and further orders as are deemed just and necessary in the facts and circumstances of the case. (SIC)
2. Petitioner is the Manager of an aided higher
secondary school having minority status. Chapter XXXII KER mandates appointment of Lower Division Clerk, Part-Time Menial and Librarian Grade IV in the Higher Secondary Section, which are the non-teaching staff. The petitioner appointed the 4th respondent as Lower Division Clerk in the petitioner’ school with effect from 20.10.2021. The proposal for approval of his appointment was returned by the 3 rd respondent stating that the question of approval of such appointments can be considered only after the Government
issues orders creating / sanctioning Lower Division Clerk post
in the petitioner’s school. Aggrieved by the same, this writ petition is filed.
3. Heard the learned counsel for the petitioner and the learned Government Pleader.
4. Today, when this writ petition came up for
consideration, the counsel for the petitioner submitted that in the petitioner’s school, there are more than 1500 students and therefore, in the light of Ext.P8, the petitioner’s school is entitled a post of Clerk. The counsel takes me through Ext.P8 Government Order in which similarly situated schools were sanctioned post. If that be the case, the petitioner can submit a representation before the Government and the Government can be directed to consider the matter in the light of Ext.P8 order. Moreover, in similarly situated case, this Court also passed a judgment in Vivek Nair v. State of Kerala [2021
(3) KLT 65], which is produced as Ext.P5. Therefore, this writ petition is disposed of in the following manner:
1. The petitioner is free to submit a representation
before the 1st respondent narrating the grievance raised in the writ petition and also in the light of Ext.P8 order within three weeks from the date of receipt of a copy of this judgment.
2. Once such a representation is received, the 1 st respondent will consider the same and pass appropriate orders in it, in the light of Ext.P5
judgment and Ext.P8 Government Order, as
expeditiously as possible, at any rate, within two months from the date of receipt of the representation.
3. The petitioner will produce a certified copy of
this judgment along with a copy of the writ petition and representation, before the 1 st respondent for compliance. sd/- P.V.KUNHIKRISHNAN JV JUDGE APPENDIX OF WP(C) 32280/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MINORITY CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE PETITIONER SCHOOL Exhibit P2 TRUE COPY OF NO.G.O.(MS)NO.220/2015/G.EDN, DATED 17.08.2015 ISSUED BY THE 1ST Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 15.01.2020 IN W.A.NO.745/2018. Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 05.10.2021 IN CONT.CASE(C) NO.1091/2021. Exhibit P5 TRUE COPY OF JUDGMENT DATED 16.03.2021 IN W.P.(C)NO.26927/2018 REPORTED IN 2021(3)KLT 65
Exhibit P6 TRUE COPY OF THE APPOINTMENT ORDER
DATED 10.11.2021 ISSUED TO THE 4TH Exhibit P7 TRUE COPY OF THE ORDER BEARING NO.H/7384/21/RDD/MLPM/HSE/K.DIS, DATED 25.06.2022 ISSUED BY THE 3RD Exhibit P8 TRUE COPY OF G.O.(MS) NO. ISSUED BY THE 1ST RESPONDENT Exhibit P9 TRUE COPY OF STAFF FIXATION ORDER FOR THE YEAR 2022-2023 DATED 24.08.2022 ISSUED BY THE DEO, TIRURANGADI Exhibit P10 TRUE COPY OF THE CHART SHOWING THE STUDENTS STRENGTH OF HIGH SCHOOL AND HIGHER SECONDARY SECTION OF THE PETITIONER SCHOOL.