IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 10992 of 2010(Y) -------------------------- PETITIONER(S): --------------- V.S.SETHUMADHAVAN, PEON (RETD.) VOCATIONAL HIGHER SECONDARY SCHOOL PANANGAD, ERNAKULAM DISTRICT. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM. 2. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 3. THE MANAGER, VOCATIONAL HIGHER SECONDARY SCHOOL, PANANGAD. 4. THE PRINCIPAL, VOCATIONAL HIGHER SECONDARY SCHOOL, PANANGAD. 5. THE ACCOUNTANT GENERAL (A & E) AG'S OFFICE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.10992 of 2010 --------------------------------------------- Dated this the 23rd day of November, 2010 JUDGMENT The petitioner was working as Peon in Vocational Higher Secondary School, Panangad. He retired from service on 30.5.2009. While in service, the petitioner moved the District Educational Officer, Ernakulam, claiming advance increments in terms of paragraph 3 of G.O.(P) No.380/94/(13)/Fin. dated 9th June, 1994. That claim was rejected. The petitioner filed W.P.(C) No.3762 of 2009 challenging the order passed by the District Educational Officer. It was pointed out that the issue is covered by the judgment in W.P.(C) No.15902 of 2007. The learned Single Judge disposed of W.P.(C) No.3762 of 2009 by Exhibit P9 judgment dated 18th June 2009. It was held in Exhibit P9 judgment that since the petitioner was promoted as Peon while working as Full Time Menial, the stand taken by the Government and the District Educational Officer could not be sustained. Accordingly, the order passed by the District Educational Officer was quashed and he was directed to W.P.(C) No.10992 of 2010 2 consider the request made by the petitioner and the proposal made thereon by the Principal, in the light of the Government Order and the observations in W.P.(C) No.15902 of 2007. 2. Thereafter, the District Educational Officer passed Exhibit P10 order. It was held thus : “Based on the judgment dated 18.6.2009 in W.P.(C) No.3762 of 2009 filed by Sri.Sethumadhavan V.S., Peon (Retired) Panangad VHSS the matter has been subjected to reexamination. Government in the letter read above have ardently made clear that the scale of pay of FTM and Peon are identical. The appointment of FTM to Peon cannot be considered as an appointment by promotion and therefore the question of granting the benefit of Advance Increment does not arise. In view of the facts and circumstances of the case, the request put in by Sri.Sethumadhavan V.S., Peon (Retired) Panangad VHSS for an advance increment cannot be conceded to in the wake of Government Letter No.92782/PRU-1/03/Fin. W.P.(C) No.10992 of 2010 3 dated 31.10.2006 and in the view of the Government letter read above.” 3. The findings arrived at in Exhibit P10 are contrary to the dictum laid down in W.P.(C) No.15902 of 2007, P.Sasikumar vs. State of Kerala and others reported in 2008(4) KLT 35, wherein it was held thus : “I am of the view that the expression “Sweepers, Scavengers, Watchers, Gardeners etc.” would mean that they are “menials”. It is common knowledge that such persons are appointed and treated as “Full Time Menial” or “Part Time Menial”, as the case may be, by the Managers of Schools, educational authorities and by common man. The posts of “Sweepers and other staff” would constitute a feeder category for the appointment to the post of peon, as is clear from Explanation(1) to Note 2 of Rule 1 of Chapter XXIVA, K.E.R. Therefore, I hold that Full Time Menial is a feeder category for the appointment to the post of peon. This view is fortified by the Division Bench decision in Rajendran vs. State of Kerala (1993(1)KLT W.P.(C) No.10992 of 2010 4 893). It was held by the Division Bench that from Explanation II to Rule 1 of Chapter XXIV A of the Kerala Education Rules it is clear that Sweepers, Watchers, etc. whether full time or part time are in the feeder category for filling up the post of Lower Division Clerk.” 4. In view of the judgment in P.Sasikumar vs. State of Kerala and others (2008(4) KLT 35), Exhibit P10 order is not sustainable. Accordingly, Exhibit P10 order is quashed. The District Educational Officer shall grant advance increment to the petitioner on his promotion to the post of Peon with effect from the date of his promotion, within a period of one month from the date of receipt of a copy of the judgment. After the District Educational Officer passes the order as aforementioned, the Deputy Director of Education shall pass appropriate orders revising the pension of the petitioner. K.T.SANKARAN JUDGE csl