Biju Suresh vs The State of Kerala and Others

K.T. Sankaran, J.—The petitioner was appointed as Full Time Menial in Devaswom Board High School, Erumeli under the dying-in-harness scheme. His appointment as Full Time Menial was approved by the District Educational Officer. The petitioner was thereafter transferred to Devaswom Board High School, Kangazha. While working at Kangazha, the petitioner was promoted as Peon in a retirement vacancy of P.B. Santhosh Kumar in Devaswom Board Higher Secondary School, Thiruvalla, as per Ext.P1 order of appointment. The Corporate Manager, namely, the Travancore Devaswom Board forwarded the papers relating to the appointment of petitioner as Peon to the District Educational Officer. The District Educational Officer passed Ext.P2 order rejecting the proposal for approval on the ground that the Manager failed to produce the approved seniority list of Full Time Menial.

Challenging Ext.P2 order, the Manager filed an appeal before the Director of Public Instruction, which was rejected as per Ext.P3 order dated 30.9.2009. The petitioner filed a revision before the Government challenging Exts.P2 and P3 orders. The Government rejected the revision as per Ext.P4 order dated 18.8.2010 holding thus:

Referring to the above I am to inform you that the request for the approval of appointment as Peon in DB Higher Secondary School, Thiruvalla can be considered only after receiving the finally approved seniority list at the office of the Director of Public Instruction, Thiruvananthapuram.

The petitioner relies on Ext.P5 G.O.(MS) No. 258/90/G.Edn. dated 15.12.1990 which provides thus:

In the circumstances, the following orders are issued.

i) All pending cases of approval of appointments will be disposed of based on the strength of the declaration filed by the manager as was done hitherto, provided no petition from an aggrieved senior teacher has been received in the office of the concerned Educational Officer in respect of that particular appointment against that particular vacancy.

ii) The Corporate Educational Agency will furnish a declaration in the form appended along with each appointment order, so as to facilitate speedy action being taken by the Educational Officers concerned.

iii) All pending cases relating to the Corporate Educational Agencies will be disposed of by the Controlling Officers on the above lines. Cases arising in future will also be disposed of accordingly.

iv) In respect of individual Educational Agency, the managers may be required to submit the declaration, and the seniority list of protected teachers, Rule 43 and 51-A claimants; along with the appointment orders; as usual, in view of the fact that the number of employees under them will be small.

v) The Managers should ensure that as far as possible no teacher is appointed, without a sanctioned post and promotions, appointments, transfers etc. are made against open vacancies; and no teacher should be allowed to work without a sanctioned post, or an open vacancy.

In compliance with Ext.P5 Government Order, the Manager had submitted a declaration (Ext.P6) along with the proposal for approval of the promotion of the petitioner. That declaration was not considered by the District Educational Officer and the appellate and revisional authority, while passing Exts.P2, P3 and P4 orders.

The petitioner also relies on Ext.P8 provisional seniority list of Full Time Menial as on 1.1.2008 under the Travancore Devaswom Board Schools. The petitioner is serial No. 10. It is submitted that the immediate senior of the petitioner, namely, Gopan K. Unnithan, was terminated from service as per Ext.P9 order passed by the Manager, which was ratified as per Ext.P10 order passed by the Assistant Educational Officer. It is also submitted by the learned Counsel for the petitioner that serial No. 8 in Ext.P8 provisional seniority list, R. Rajan, was promoted as Peon as per Ext.P11 order dated 13.7.2006 and that appointment was approved by the District Educational Officer, as evidenced by endorsement in Ext.P11. It is submitted that such promotion of R. Rajan as Peon was approved on the basis of the declaration filed by the Manager. Similarly, it is pointed out that serial No. 11 in the provisional seniority list, namely, Syam Mohan M.C. was appointed by the Manager as per Ext.P12 appointment order as Peon and his appointment was also approved on the basis of the declaration furnished by the Manager. In the light of Ext.P5 Government Order, it was sufficient, if the Manager furnished a declaration as provided in the Government Order. There is no dispute that such a declaration was submitted along with the proposal for approval of the appointment of the petitioner. It is also not in dispute that the appointment of Rajan, who is senior to the petitioner and appointment of Syam Mohan, who is junior to the petitioner were approved by the District Educational Officer on the basis of the declaration furnished by the Manager.

In the facts and circumstances of the case, I am of the view that Exts.P2, P3 and P4 orders are liable to be quashed. I do so.

The District Educational Officer shall consider the proposal for approval of the appointment of the petitioner as Peon afresh, taking into account the declaration furnished by the Manager. Final orders shall be passed by the District Educational Officer, within a period of one month from the date of receipt of a copy of the judgment. On approval of the appointment of the petitioner, the arrears of salary shall be disbursed to him within a period of one month thereafter.

The Writ Petition is allowed as above.