IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 5220 of 2008(U) ---------------------------------------- PETITIONER(S): ------------------------ SONY MATHEW, KUTTIKATTUMANNIL, THIRUVAMPADY P.O., KOZHIKODE DISTRICT, PIN-673 693. BY ADV. SRI.P.I.DAVIS RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 4. THE MANAGER, ST. JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE. R1 TO R3 BY GOVT. PLEADER SRI.SANDESH RAJA BY ADVS.SRI.MATHEW B. KURIAN, SMT.TULASI PANICKER, SRI.K.T.THOMAS, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5220/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DTD. 1.7.05 OF 3RD RESPONDENT. P2:- COPY OF THE STAFF FIXATION ORDER DTD. 30.7.2005 OF 3RD RESPONDENT. P3:- COPY OF THE STAFF FIXATION ORDER DTD. 31.7.006 OF 3RD RESPONDENT. P4:- COPY OF THE REVISION PETITION FILED BY THE PETITIONER DTD. 31.1.2007. P5:- COPY OF THE ORDER DTD. 19.6.2007 OF THE ADDL. D.P.I. P6:- COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P7:- COPY OF THE GOVT. ORDER NO.407/07/G.EDN. DTD. 4.1.08 OF THE IST RESPONDENT. P8:- COPY OF THE GOVERNMENT ORDER (RT) NO.1087/07/G.EDN. DTD. 12.3.07. R2(a):- COPY OF THE GOVERNMENT ORDER 17.6.08. R4(a):- COPY OF THE LETER DTD. 3.10.2008 SENT BY THE PETITIONER TO THIS RESPONDENT. R4(b):- COPY OF THE REPLY DTD. 27.11.2008 SENT BY THIS RESPONDENT TO THE PETITIONER'S LAWYER. TRUE COPY P.A. TO JUDGE tss C.T. RAVIKUMAR, J. ---------------------------------- WP (C) NO. 5220 of 2008 ---------------------------------- Dated this the 27th day of May, 2010 J U D G M E N T The petitioner was appointed as High School Assistant (Mathematics) in the St. Joseph's Boys Higher Secondary School, Kozhikode as per Ext.P1. The said appointment was duly approved by the 3rd respondent. Pursuant to the staff fixation order for the year 2006-07 Exhibit P3 order was issued by the 3rd respondent carrying direction to the 4th respondent. Manger to oust the petitioner from service and to make appointment against the post of HSA(English). The petitioner challenges Ext.P3 on the ground that the 3rd respondent has no authority to pass such an order. Raising such contentions he has filed Exhibit P4 revision petition before the 2nd respondent. However, the same was dismissed as per Exhibit P5. Feeling aggrieved of Exhibit P5, the petitioner has preferred Ext.P6 revision petition under Rule 12F, Chapter XXIII of the Kerala Education WP (C) NO. 5220 of 2008 2 Rules before the first respondent. Exhibit P6 revision petition was dismissed as per Exhibit P7 order. It is challenging Exhibit P3, P5 and P7 orders that this writ petition has been filed by the petitioner. 2. The 2nd respondent has filed a statement in this writ petition. Along with the said statement G.O.(MS). No.132/09/G.Edn dated 17.06.2009 has been produced as Annexure R2(a). Based on the same a specific contention has been made in para 3 of the said statement and the same, in so far as it is relevant reads thus :- When Sri.Benny Varakil, HSA (English) was promoted as HSST, there were only two HSA (English) against four sanctioned post as such the approval of appointment of Sony Mathew as HSA (English) was irregular. But in the light of the order dated 17.06.2009 now issued by the Government it was ordered that the Rule 51A claimant under chapter XIV A KER prior to 16.11.2002 are eligible to appointment against vacancies applying 1:1:1 ratio existed prior to WP (C) NO. 5220 of 2008 3 Government order dated 07.01.2002. As per the old ratio 6 HSA (Maths) are admissible in 18 sanctioned post of core subject. Hence as per the above Government Order the approval given to the appointment Sri. Sony Mathew as HSA(Maths) w.e.f 11.07.2005 is regular. 3. When this matter is taken up today, the learned counsel for the petitioner submits that Exhibit P7 order passed by the Government requires reconsideration in the light of Exhibit R2(a) and paragraph 3 of the statement. A scanning of Exhibit R2(a) would reveal that Rule 51A claimants under chapter XIV A KER prior to 16.11.2002 are eligible for appointment against vacancies applying 1:1:1 ratio existed prior to Government order dated 07.01.2002. Indisputably the petitioner was having a 51A claim prior to 16.7.02 as he was appointed in the said school prior to 16.2.02 and the said appointments were duly approved by the competent authority. Therefore, I am of the view that WP (C) NO. 5220 of 2008 4 this writ petition can be disposed of with a direction to the first respondent to reconsider the decision in Exhibit P7 in the light of Exhibit R2(a) Government Order. 4. The forth respondent Manager has filed a counter affidavit in this writ petition. The essence of the contentions raised by the 4th respondent is that the petitioner is not entitled to the benefit of Government Order (MS)11/02/G.Edn dated 07.01.02. However, I am of the view that, the entitlement of the petitioner is now to be decided in the light of Exhibit R2(a). At the same time the fourth respondent has yet another contention. According to him, the petitioner is unauthorizedly absent from 30.9.08. Though he had requested to grant leave without allowance to join the spouse the said request of the petitioner was not acceded on the ground that there was no sanctioned post to make him eligible for leave. That apart, according to the Manager, he is not the competent authority to entertain WP (C) NO. 5220 of 2008 5 such a request. At the same time he is duty bound to forward such an application to the competent authority. It is to be noted that while admitting this writ petition an interim order was passed by this court on 13.02.08. As per the same, the petitioner was permitted to continue in service without salary, subject to the result of this writ petition. The 4th respondent subsequently moved a petition for vacating the said order pointing out the fact that despite the receipt of such a favorable order the petitioner was remaining unauthorizedly absent from 30.9.08 on wards. Taking note of the said circumstance, this court had vacated the order passed on 13.02.08. However, I do not propose to go into the merits of those contention as it is a subject matter of this writ petition. 5. As noticed here in before, the Government have already issued Exhibit R2(a) Government Order. In the light of Exhibit R2(a) Government Order, the submission WP (C) NO. 5220 of 2008 6 made by the learned counsel for the petitioner that Exhibit P7 requires a reconsideration, merits consideration. In fact, I am of the view that Exhibit P7 requires reconsideration in the light of Exhibit R2(a) notice. To enable the first respondent to make such a reconsideration of the issues involved in the matter Ext.P7 is set aside. Consequently there will be a direction to the first respondent to consider and pass orders on Ext.P6 revision petition filed by the petitioner in the matter of approval of his appointment in the light of Exhibit R2(a) Government Order, with notice to the petitioner and also the 4th respondent. It shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/- C.T. RAVIKUMAR, JUDGE. Rkc //true copy// P.A to Judge