IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 WP(C).No. 24764 of 2006(W) ---------- -------------------------- PETITIONER: ------------------- N.K.MOHAMMED BASHEER, AGED 37 YEARS, S/O.PROF.N.K.ABDUL KAREEM, NOOR MAHAL, FAROOK COLLEGE P.O., CALICUT DISTRICT. BY ADV. SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.T.S.ANURAJ SRI.B.BALA PRASANNAN SRI.SHIRAZ ABDULLA RESPONDENTS: ----------------------- 1. THE MANAGER, EMEA HIGHER SECONDARY SCHOOL, KONDOTTY, MALAPPURAM DISTRICT. 2. THE DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SHANTHINAGAR, THIRUVANANTHAPURAM. 3. THE SECRETARY TO THE GOVERNMENT, EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. ABDULLAKUTTY KANNANTHODI, LAB ASSISTANT, EMEA HIGHER SECONDARY SCHOOL, KONDOTTY, MALAPPURAM DISTRICT. R1 & R4 - BY ADV. SRI.K.M.SATHYANATHA MENON, SC. R2 & R3- BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL.. WP(C).No. 24764 of 2006(W). APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.G.O.(M.S.) NO.79/2003/G.EDN. DATED 28.3.2003. P2: COPY OF THE ORDER NO.ACD.A2/1121/HSE/2004 DATED 19.08.2004. P3: COPY OF THE GOVERNMENT ORDER NO.G.O.(MS) NO. 299/2004 DATED 24.9.2004. P4: COPY OF THE GOVERNMENT ORDER G.O(MS) NO.354/2004/G.EDN. DATED 26.11.2004. P5: COPY OF THE ORDER NO.ACD.A2/1309/HSE/05 DATED 23.2.2005. P6: COPY OF THE REPRESENTATION NO. NIL DATED NIL. P7: COPY OF THE JUDGMENT DATED 26.09.2005 IN W.P.(C) NO.27569/2005. P8: COPY OF THE ORDER NO. ACD.A2/7093/HSE/06 DATED 9.5.2006. P9: COPY OF THE JUDGMENT DATED 5.7.2006 IN CCC NO.612/06. P10: COPY OF THE REPRESENTATION DATED 13.7.2006. P11: COPY OF THE ORDER NO.55515/T1/2006/G.EDL. DATED 10.05.2007. P12: COPY OF THE ORDER NO.ACD. B1/5872/HSC/2003 DATED 21.3.2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// PA TO JUDGE SCL. S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No. 24764 OF 2006 ---------------------------------------------- Dated this the 4th day of October, 2011 JUDGMENT This writ petition relates to rival claims for the post of Lab Assistant in an aided higher Secondary School of which the 1st respondent is the Manager. The petitioner was appointed as a Lab Assistant along with three others at a time when the Government had not formally sanctioned the post of Laboratory Assistants. The 4th respondent was at that time working as a full time menial in the High School section. There was litigation pending before this Court regarding regularisation of the service of Laboratory Assistants appointed in Government and aided Higher Secondary Schools in the State. By Ext.P1 order dated 28.3.2003, the Government sanctioned two posts of Laboratory Assistants in all Government/Aided Higher Secondary Schools. While so, litigation arose in respect of other two posts as well. The petitioner also filed W.P(C) No.25081/05. Thereafter, the Government, by Ext.P3 order, directed as follows: W.P.(C)No.24764/06 2 “Government are pleased to order the creation of Supernumerary Posts of Laboratory Assistants in the Higher Secondary Schools in the Aided Sector having Science Batches subject to a maximum of 4 Lab Assistants in each school so as to regularise the appointments made till 28.3.2003. The Lab Assistants so regularised shall be engaged for Clerical and other works as and when required. Government also order that they will be eligible for salary w.e.f. 28.3.2003. The salary will be paid in cash from the month of September 2004 onwards and the arrears up to the period will be debited to the P.F. Account.” Pursuant thereto, the Government passed Ext.P4 consequential order in which one of the conditions for approval of the appointments against the supernumerary posts was that “if one or both of the sanctioned posts happen to be vacant it will be filled up accommodating the elder supernumerary person and further that fresh appointments of Lab Assistants shall be made only after exhausting supernumerary posts and a vacancy arises in the sanctioned posts.” The person appointed in the second sanctioned post in the 1st respondent's school retired from service. The Manager, instead of accommodating one of the other two Lab Assistants working in the school, including the petitioner, decided to appoint the 4th respondent , who was working as full time menial as a Lab Assistant in the W.P.(C)No.24764/06 3 second sanctioned post. The petitioner challenged the same by filing Ext.P6 representation in this regard before the Director of Higher Secondary Education. Pursuant to Ext.P7 judgment in W.P.(C)No.27569/05, the Director of Higher Secondary Education passed Ext.P8 order rejecting the claim of the petitioner for accommodation in the post to which the 4th respondent was appointed, on the ground that since there is another senior person by name Sri. Shihab, who is entitled to claim the post and he has not filed any claim, the petitioner cannot claim the said post. The matter was taken up before the Government. The Government, by Ext.P11 order, sustained Ext.P8 order of the Director of Higher Secondary Education. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(I) To call for the records relating to Exhibit P1 to P10 and to issue a writ of Certiorari or any other appropriate writ, direction or order, quashing Exhibit-P8 order being arbitrary, illegal, unsustainable, discriminatory and tainted with malafides. (II) To issue a writ of mandamus or any other appropriate writ, direction or order declaring that the Petitioner is the most eligible person to be appointed to the retirement vacancy with retrospective effect in which the 4th respondent was appointed and also to declare that the promotion given to the 4th respondent is unsustainable in the W.P.(C)No.24764/06 4 eye of law. (III) To issue an interim order to the 3rd respondent to consider and pass orders on Exhibit P10 representation in accordance with law pending disposal of t he Writ petition. (III) (a) To call for the records relating to P11 and to issue a Writ of Certiorari quashing Exhibit P11 order being arbitrary illegal unsustainable discriminatory and tainted with malafide.” The contention of the petitioner is that after having appointed him as one of the four Lab Assistants of the School, the Manager ought to have accommodated the petitioner when a regular sanctioned post arose instead of appointing a full time menial to that post. It is further submitted that the reasoning in Exts.P8 and P11 orders are totally perverse since the petitioner has a right to challenge the appointment of anybody ahead of the petitioner. The fact that a person allegedly having a better claim did not challenge the appointment is not a ground for non-suiting the petitioner, is the contention raised. Even otherwise, going by Ext.P4, the vacancies in sanctioned posts are to be filled up by accommodating the elder supernumerary person. According to the petitioner, out of the two supernumerary Lab Assistants, the petitioner being the elder person, is entitled to be accommodated in that post W.P.(C)No.24764/06 5 and therefore, the petitioner had a better claim than the other supernumerary Lab Assistants. That being so, the reasoning in Exts.P8 and P11 are totally perverse is the contention of the petitioner. 2. The learned counsel appearing for both the Manager and the 4th respondent would take the contention that Exts.P3 and P4 orders were passed subsequent to the appointment of the 4th respondent as Lab Assistant and therefore, the Manager cannot be faulted for appointing the 4th respondent in the vacant sanctioned post. Therefore, the Manager and the 4th respondent support the impugned orders. 3. I have considered the rival contentions in detail. I do not have to think twice to hold that the reasoning in Exts.P8 and P11 orders are totally perverse. Even assuming that there is a better claimant available, simply because that better claimant does not raise the claim, the petitioner does not lose his right to lay claim as against a person, who is not entitled to be appointed to the sanctioned post at all. Even otherwise, going by Ext.P4 order, the petitioner being the elder supernumerary Lab Assistant, he can certainly raise the claim in W.P.(C)No.24764/06 6 accordance with Ext.P4. 4. Apart from all that, the Manager cannot be heard to contend that since the appointment of the petitioner as Lab Assistant was not regularised, the Manager was entitled to appoint a full time menial to the vacant sanctioned post. It is the Manager who appointed all the four Lab Assistants and he very well knew that only two posts were sanctioned. He also very well knew that litigations were pending in respect of the other two posts as well. Having appointed the petitioner also as one of the four Lab Assistants, the Manager had both legal and moral duty to see that as and when a sanctioned vacancy arises, the petitioner is accommodated in that post. As such I am of opinion that the appointment of the 4th respondent by the 1st respondent Manager to the vacant sanctioned post is clearly illegal and unsustainable. Further as per Ext.P3 order, the appointment of the petitioner was to be regularised which means that the regularisation is to be from the date of appointment retrospectively. In the above circumstances, I am of opinion that the vacant sanctioned post of Lab Assistant should be filled up in accordance with Ext.P4. W.P.(C)No.24764/06 7 In the above circumstances, the impugned orders are quashed. Appointment of the 4th respondent to the vacant 2nd sanctioned post is also quashed. The 1st respondent is directed to accommodate one of the two supernumerary Lab Assistants available in the school in accordance with the conditions in Ext.P4. Orders in this regard shall be issued by the 1st respondent and forwarded to the 2nd respondent within two weeks from the date of receipt of a copy of this judgment. The 2nd respondent shall consider and pass orders regarding approval of the said appointment in accordance with law within a further period of one month therefrom. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.24764/06 8 W.P.(C)No.24764/06 9