IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 36766 of 2007(B) ------------------------------------------ PETITIONER(S): ------------------------ K.SUJAKUMARI, W/O.P.S.SANTHOSHKUMAR, SANTHOSH BHAVANAM, MEZHUVELI, PATHANAMTHITTA (CLERK, SNT HIGHER SECONDARY SCHOOL, PUNALUR). BY ADV.MR.S.SUBHASH CHAND RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. 4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PUNALUR. 5. THE MANAGER, SN TRUSTS SCHOOLS, OFFICE OF THE SN TRUST, P.O.BOX NO.63, KOLLAM-691 001. Kss ..2/- ...2... WPC.NO.36766/2007 B *ADDL.R6 & R7 ARE IMPLEADED: R6. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. R7. THE PRINCIPAL, SNT HIGHER SECONDARY SCHOOL, PUNALUR. (*ADDL.R6 & R7 ARE IMPLEADED AS PER ORDER DTD. 5/02/2008 IN I.A.NO.1773/2008) R1 TO R4 & R6 BY GOVERNMENT PLEADER SMT. T.B.REMANI R5 BY ADV. MR.A.N.RAJAN BABU, SC, S.N.TRUST THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36766/2007 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DTD.11/10/2000 ISSUED BY RESPONDENT NO.5. EXT.P2: COPY OF THE ORDER DTD. 22/01/2006 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. EXT.P3: COPY OF THE ORDER DTD. 20/09/2005 ISSUED BY RESPONDENT NO.5. EXT.P4: COPY OF THE ORDER DTD. 16/01/2007 ISSUED BY RESPONDENT NO.2. EXT.P5: COPY OF THE ORDER DTD. 16/12/2005 ISSUED BY RESPONDENT NO.5. EXT.P6: COPY OF THE STAFF FIXATION ORDER DTD. 13/12/2005 FOR THE ACADEMIC YEAR 205-06 ISSUED BY RESPONDENT NO.4. EXT.P7: COPY OF THE STAFF FIXATION ORDER DTD. 18/07/2006 FOR THE ACADEMIC YEAR 2006-07 ISSUED BY RESPONDENT NO.4. EXT.P8: COPY OF THE ORDER DTD. 14/11/2006 ISSUED BY RESPONDENT NO.1. EXT.P9: COPY OF THE CIRCULAR DTD. 24/01/2005 ISSUED BY RESPONDENT NO.1. EXT.P10: COPY OF THE GOVERNMENT ORDER BEARING G.O.(MS) NO.208/90/ G.EDN. DTD. 24/09/1990. EXT.P11: COPY OF THE GOVERNMENT LETTER NO.750/80/J2/90/G.EDN. DTD. 28/01/01. EXT.P12: COPY OF THE G.O.(MS) NO.123/91/G.EDN. DTD. 5/08/91. EXT.P13: COPY OF THE G..O.(MS) NO.347/98/G.EDN. DT. 1/09/1998. EXT.P14: COPY OF THE OF THE LAST PAY CERTIFICATE RELATING TO DRAWAL OF SALARY AND ALLOWANCES IN THE POST OF PEON TILL 27/03/2003 BY THE PETITIONER. Kss ..2/- ...2.... WPC.NO.36766/2007 B EXT.P15: COPY OF THE LAST PAY CERTIFICATE RELATING TO DRAWAL OF SALARY AND ALLOWANCES IN THE POST OF LABORATORY ASSISTANT TILL 30/09/2005 BY THE PETITIONER. EXT.P16: COPY OF THE CIRCULAR BEARING NO.23323/J1/89/G.EDN. DTD. 6/11/1999 ISSUED BY RESPONDENT NO.1. EXT.P17: COPY OF THE REVISION PETITION DTD. 20/02/2007 SUBMITTED BY RESPONDENT NO.5 BEFORE RESPONDENT NO.1. EXT.P18: COPY OF THE REVISION PETITION DTD. 16/04/2007 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1. EXT.P19: COPY OF THE JUDGMENT DTD. 29/05/2007 PASSED BY THIS HON'BLE COURT IN W.P.C.NO.16257/2007. EXT.P20: COPY OF THE ORDER DTD. 17/11/2007 PASSED BY RESPONDENT NO.1. EXT.P21: COPY OF THE ORDER DTD. 13/04/2007 ISSUED BY RESPONDENT NO.1. EXT.P22: COPY OF THE ORDER DTD. 12/12/2007 PASSED BY THIS HON'BLE COURT. EXT.P23: COPY OF THE APPLICATION FOR CLARIFICATION DTD.22/01/2008 SUBMITTED BY RESPONDENT NOS. 1 TO 4 IN THE ABOVE WRIT PETITION BEFORE THIS HON'BLE COURT. EXT.P24: COPY OF THE ORDER DTD. 5/02/2008 IN I.A.NO.1774/2008 IN THE ABOVE WRIT PETITION. I.A.NO.13445/2208: EXT.P22: COPY OF THE judgment DTD. 5/08/2002 IN OP.NO.3857/2002 PASSED BY THIS HON'BLE COURT. EXT.P23: COPY OF THE JUDGMENT TD. 18/11/2005 IN WPC.NO.24212/2005 PASSED BY THIS HON'BLE COURT. EXT.P24: COPY OF THE ORDER TD. 7/07/2008 PASSED BY RESPONDENT NO.1. EXT.P25: COPY OF THE JUDGMENT DTD. 17/09/2008 PASSED BY THIS HON'BLE COURT IN W.P.C.NO.32224/2007. Kss ..3/- ..3.... WPC.NO.36766/2007B RESPONDENT'S EXHIBITS: EXT.R4(A): G.O.(MS) NO.377/2005/G.EDN. DTD. 15/10/2005. EXT.R6(A): COPY OF THE PROCEEDINGS NO.TRO/5/6471/HSE/08 DTD. 09/05/2008. ANNEXURE 1: COPY OF THE GOVERNMENT ORDER DTD. 9/02/2009 ALONG WITH ANNEXURES. /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C).No.36766 of 2007 ---------------------------------------- Dated this the 11th day of March, 2009 JUDGMENT Petitioner is appointed as Peon in PHSS, Mezhuveli under the management of S.N.Trust with effect from 11/10/2000. Ext.P1 is the appointment order. Subsequently, she was appointed as Laboratory Assistant in the Higher Secondary School in a regular vacancy. By Ext.P2 order the appointment was approved with effect from 28/3/2003. Ext.P2 order was passed at a time when writ petition and writ appeal are pending before this Court regarding the method of appointment and the ratio between the recruitment by transfer and direct recruitment. The approval of appointment is purely on temporary and provisional basis, which still continues. Subsequently, by Ext.P3 order dated 20/09/2005 the petitioner was provisionally promoted as LD Clerk with effect from 1/10/2005 along with several other candidates in the High School Section. Approval was in force till the petitioner was appointed as LD Clerk in the High School Section. 2. The learned counsel for the petitioner submitted that as per explanation (ii) of Rule 3 of Chapter 24A KER, the post of LD Clerk shall be filled up by promotion of peons, sweepers and other staff, if they possess the requisite qualification. It is true that the petitioner and five other candidates were promoted and appointed as LD Clerks in the High W.P.(C) No. 36766 of 2007 -2- School Sections of different schools under the same management. 3. It is contended by the learned counsel for the petitioner that by Ext. P8 order the approval of appointment of the petitioner was denied. In Ext. P8 it is stated that there were no protected hands available in the category of non-teaching staff in Kollam District to be appointed as Clerk. Relying on Ext.P8 order and the fact that there were no protected hands available in the category of non- teaching staff in Kollam district, the 3rd respondent approved the appointment of Sri.V.C. Baiju, who was promoted and appointed as LD Clerk in SNT HSS, Chathannur along with the petitioner in Kollam District. It is further submitted that though Sri.V.C. Baiju was promoted and appointed as LD Clerk, the appointment of the petitioner was rejected holding that the school was a newly opened school. According to respondents 3 and 4, the approval of appointment of the petitioner is liable to be rejected on the ground that the school is a newly opened school during 2003-04 and as per G.O (P) No. 1178/07/GE dated 28/6/2002 the vacancies should have been filled up by protected hands. Another reason stated by the Government is that the petitioner was not a Rule 43 claimant for appointment as a Clerk. On the very same reasons the 2nd respondent by Ext. P4 order rejected the approval of appointment of the petitioner. Ext.P18 is the revision petition filed against Ext.P4 order. This Court by judgment in W.P.(C) No. 16257/2007 directed the Government to dispose of Ext.P18 revision petition. Accordingly, the matter was heard and Ext.P20 order was passed by the Government. It is W.P.(C) No. 36766 of 2007 -3- stated that since the school is a newly opened school, the vacancy shall be filled up by protected hands. The Government in Ext. P20 stated that even though the petitioner has approved service in the post of Lab Assistant, she cannot be considered as Rule 43 claimant, since the post of Lab Assistant in Higher Secondary School is not the channel of promotion of clerk in the High School . It is also stated that the post of Lab Assistant in Higher Secondary School and clerk are separate establishments. Hence the claim of the petitioner is not sustainable. G.O.(P) No. 178/07/GE dated 28/6/2002, which stipulates that all the vacancies in newly opened/upgraded schools shall be filled in from the protected hands, is in force. For all these reasons the appointment made by the Manager in the newly created posts cannot stand. In the circumstances,Ext.P20 order was passed by the Government dismissing the revision petition filed by the Manager and the petitioner. 4. The petitioner produced G.O.(MS) No. 19/2009 Edn dated 9.2.2009(Annexure-1). According to the petitioner the only ground on which approval of her appointment as L.D. Clerk was rejected by the respondents since such vacancy shall be filled up only by a protected hand. According to her the stand taken by the Government is not valid. in the light of G.O.(Ms) 19/2009/Edn dated 9.2.2009 and there is a direction to approve the appointment of the petitioner and simliarly situated appointees with effect from 1.2.2006 onwards. The name of the school in W.P.(C) No. 36766 of 2007 -4- which the petitioner has worked viz SNT Higher Secondary School Punalur is also specified in the list appended to Annexure-1 Government Order, as a school which started consequent to the de-linking of Pre- degree from colleges. The list contains the names of few schools including the SNT Higher Secondary School Punalur as Serial No.13 and the petitioner's name has been included at Serial No.10. After referring to Annexure-1 Government Order, the counsel for the petitioner Sri S. Subash Chand requested this Court to issue appropriate directions to the District Educational Officer, Punalur the 4th respondent, to approve the appointment of the petitioner as L.D. Clerk with effect from 1.2.2006 onwards and to regularise her service from 1.10.2005 to 31.1.2006 as Laboratory assistant. In the light of the said Government order the 4th respondent is directed to approve the appointment of the petitioner as L.D. Clerk with effect from 1.2.2006 onwards and to regularise her service from 1.10.2005 to 31.1.2006 as Laboratory assistant in accordance with thre norms specified in the annexure-1 Government order. 5. It is submitted by the learned counsel for the petitioner that on the passing of Ext.P20 order though worked as Clerk from the date of Ext.P3 order, the petitioner was not paid her salary and allowances from 1/10/2005 onwards. By order dated 12/12/2007 this Court issued direction to the 4th respondent to disburse the salary due to the petitioner in the post of Laboratory Assistant. In modification of the said order a direction was issued to the additional 6th respondent instead of 4th respondent, on the W.P.(C) No. 36766 of 2007 -5- basis of which the petitioner is getting salary. Subsequently, the said order was vacated by order dated 16/9/2008. It is needless to say that the petitioner is entitled to get her salary and allowance applicable to L.D. Clerk from 1.2.2006 and Lab Assistant from 1.10.2005 to 31.1.2006 less the amount already paid subject to Annexure-1 Government Order. 6. While considering the question of regularisation of the service of the petitioner from 1.10.2005 to 31.1.2006 the competent authority shall consider the question of liability of the Manager under Ext.R6(a) order also. Appropriate order in this regard shall be passed by respondent No.1 after hearing the Manager within 3 months . The District Educational Officer, Punalur , respondent No.4, shall pass final orders on the approval of appointment of the petitioner as L.D. Clerk from 1.2.2006 onwards as per Annexure-1 Government order within 2 months after hearing the petitioner and Manager. This writ petition is disposed of . (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- W.P.(C).No.36766 of 2007 ---------------------------- JUDGMENT 11th March, 2009