IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 WP(C).No. 17972 of 2008(M) -------------------------- PETITIONER: ------------------- K.K.SHAJI , LAB ASSISTANT SREE NARAYANA HIGHER SECONDARY SCHOOL OKKAL, ERNAKULAM DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESNTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM. 4. DEPUTY DIRECTOR OF EDUCATION ERNAKULAM. 5. DISTRICT EDUCATIONAL OFFICER KOTHAMANGALAM, ERNAKULAM DIST 6. THE MANAGER SREE NARAYANA HIGHER SECONDARY SCHOOL AND SREE NARAYANA HIGH SCHOOL, OKKAL, ERNAKULAM. 7. T.B. RADHAKRISHNAN THARANILAM VEEDU OKKAL P.O., ERNAKULAM DIST 8. SUNITHA BABU, W/O. BABU A.P. ATHAPILLY VEEDU,OKKAL P.O., ERNAKULAM DIST BY GOVERNMENT PLEADER ADV. SMT. T.B. REMANI. R6 BY ADV. SRI.JOHNSON ABRAHAM AND ADV. SRI.NELSON ABRAHAM . R7 AND R8 BY ADV. SMT.P.V.ASHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17972 of 2008(M) APPENDIX PETITIONER'S EXHIBITS: EXT. P1 : TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.1999 ISSUED BY THE 6TH RESPONDENT. EXT. P2 : TRUE COPY OF THE ORDER DATED 11.07.2005 ISSUED BY THE 2ND RESPONDENT. EXT.P3 : TRUE COPY OF THE REPRESENTATION DATED 10.04.2008 FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT. EXT.P4 : TRUE COPY OF G.O.(Rt.) NO. 1656/2007/G.Edn. DATED 13.04.2007. RESPONDENTS' EXHIBITS: EXT.R7(a) : TRUE COPY OF THE ORDER DATED 19.06.2000 OF MANAGER. EXT.R7(b) : TRUE COPY OF THE ORDER DATED 16.07.2007 OF MANAGER. EXT.R7(c) : TRUE COPY OF THE ORDER DATED 30.04.2008 OF MANAGER. EXT.R8(a) : TRUE COPY OF THE APPOINTMENT ORDER DATED 30.04.2008 OF 8TH RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 17972 OF 2008 ............................................................................ Dated this the 31st July, 2008 J U D G M E N T The petitioner is working as Lab Assistant in Sree Narayana Higher Secondary School, Okkal, Perumbavoor, It is stated that he was initially appointed as Full Time Menial on 12.11.1990 in Sree Narayana High School, Okkal and on 01.06.1999 he was promoted as Peon in Sree Narayana Higher Secondary School ( the High School having been upgraded as Higher Secondary School by that time). The petitioner was promoted and appointed as Lab Assistant in Sree Narayana Higher Secondary School with effect from 01.06.2000 and that appointment was approved with effect from 28.03.2003. It is stated that the appointment of the petitioner as Lab Assistant as per Ext. P2 order dated 11.07.2005 was purely on supernumerary basis. 2. The case of the petitioner is that since he was promoted to the post of Lab Assistant in the Higher Secondary Unit of the School only against a supernumerary post, he retained a lien in the post of Peon in the High School. The post of Peon being the feeder category for promotion to the post of Clerk in the High School, the petitioner submits that he is entitled to be promoted as Clerk. A vacancy of Clerk arose in the High School unit on 01.05.2008 on account of retirement of one Sadanandan. The 7th respondent was working as Clerk in an additional post created as per the staff fixation 2007-08. It is stated that the 7th respondent was working as Clerk since 16.07.2007 in the said additional vacancy and he was shifted as Clerk in the retirement vacancy of Shri Sadanandan with effect from 01.05.2008. It is further stated that the Manager, 6th respondent, is trying to induct the 8th respondent as Peon. W.P.(C) No. 17972 OF 2008 2 3. Claiming that the petitioner is entitled to be promoted as Clerk, he submitted Ext. P3 representation dated 10.04.2008 before the Manager with copy to the District Educational Officer, Kothamangalam. 4. The reliefs prayed for in the Writ Petition are the following: “i) To issue a writ of mandamus directing the 6th respondent to promote the petitioner as Clerk in Sree Narayana High School, Okkal from 01.05.2008; ii) To issue a writ of mandamus directing the 5th respondent to ensure that the petitioner is promoted as a clerk in Sree Narayana High School, Okkal from 01.05.2008 and to issue necessary directions to the Manager; iii) To issue a writ of mandamus directing the 5th respondent to refrain from approving the appointment of 7th respondent as Clerk in Sree Narayana High School, Okkal; iv) To issue a writ of mandamus directing the 6th respondent to refrain from appointing 8th respondent as a Peon in Sree Narayana High School, Okkal; v) To issue a writ of mandamus directing the 5th respondent to refrain from approving appointment of 8th respondent, if effected by the 6th respondent; vi) To issue a writ of mandamus directing the 5th respondent to take a decision in Ext.P3 within a time frame to be fixed by this Hon'ble Court; vii) to issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit under the facts and circumstances of the case.” 5. Respondent Nos. 7 and 8 have filed a counter affidavit opposing the claim made by the petitioner. It is stated by respondent Nos. 7 and 8 that the petitioner having been appointed in the Higher Secondary School, he cannot aspire for a post in W.P.(C) No. 17972 OF 2008 3 the High School and that the 7th respondent is a rightful claimant to the post of Clerk. It is pointed out that the 7th respondent was appointed as Clerk in 2007 and that the appointment of the 7th respondent made in 2007 is not challenged before any authority. 6. In the facts and circumstances of the case, for the present, the only relief that can be granted in favour of the petitioner is relief No.(vi). After having heard learned counsel for the petitioner and respondent Nos. 7 and 8, I am of the view that the Writ Petition can be disposed of directing the District Educational Officer, Kothamangalam to consider Ext. P3 representation submitted by the petitioner, before taking a decision on the question of approval of appointment of the 7th respondent . The petitioner as well as respondent Nos. 6, 7 and 8 would be entitled to make representations before the District Educational Officer, Kothamangalam and also to produce documents and other materials, as are relevant. The District Educational Officer, Kothamangalam shall take a decision in the matter after affording an opportunity of being heard to the petitioner and respondent Nos. 6 to 8, within a period of two months from today. All the contentions of the parties are left open. K.T. SANKARAN, JUDGE. lk