✦ High Court of India · 28 Mar 2025

HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR v. MENON FRIDAY, THE

Case Details High Court of India · 28 Mar 2025
Court
High Court of India
Decided
28 Mar 2025
Bench
HARISANKAR V MENON
Length
1,371 words

SRI T JAYAN GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.37706 of 2023 3 2025:KER:27269 JUDGMENT The petitioner, who was working as HSA (Music) with the Corporate Educational Agency managed by the 5th respondent herein, states that his appointment was originally approved as evidenced by Exts.P2 and P4. However, placing reliance on the staff fixation for the year 2019-20 the post to which he was appointed - Music Teacher – is stated to be abolished. In the mean time, Ext.P7 Staff Fixation was also issued, as per which, the petitioner as well as the Manager claims that there were available posts to which he could be accommodated as provided under the provisions of Chapter XXIII Rule 6(4)(b) of KER. The Manager filed a revision petition against the afore which stood rejected by the 2nd respondent herein as evidenced at Ext.P8. A further revision was filed to the Government by the Manager. The petitioner also filed a representation placing reliance on the availability of the post, as pointed out earlier, to the Minister. His representation was also forwarded for the consideration by the Government.

2. The revision petition filed by the Manager is seen rejected as per Ext.P13. The petitioner states that the W.P.(C)No.37706 of 2023 4 2025:KER:27269 Manager has filed a review petition against Exts.P12 and P13 orders, as evidenced by Ext.P14 and the said review petition is pending consideration before the Government.

3. It is in the afore circumstances that the captioned writ petition is filed by the petitioner.

4. The petitioner has also pointed out that he was directed to repay the salary etc. that he received.

5. I have heard Sri.Mohanlal.B, the learned counsel for the petitioner, Sri.T.Jayan, the learned Government Pleader for respondents 1 to 4 and Sri.S.Subhash Chand, the learned counsel for respondents 5 and 6.

6. The learned counsel for the petitioner, Sri.Mohanlal would contend that the rejection of the revision petition filed by the Manager, as evidenced by Ext.P13, which was to the detriment of the petitioner also, was incorrect and arbitrary for more than one reasons.

7. Sri.S.Subhash Chand on behalf of the 5th respondent would also join the issue and support the submission made by the petitioner as above. They would contend that, though the Manager filed the revision petition to the Government, admittedly, it is an order issued not by the W.P.(C)No.37706 of 2023 5 2025:KER:27269 government but, it is only a communication which is issued by the Principal Secretary of the Government. They would rely upon the Full Bench Judgment of this Court in T.Sudheer v. M.V.Susheela & Others [2009 (4) KLT 29], with respect to the importance of institutional decisions to contend that the order in the nature of the one at Ext.P13 ought not to have been issued when admittedly the revision petition was filed not to the Principal Secretary to the Government. They would also contend, without prejudice the afore contention, that the order at Ext.P13 has been issued without hearing the Manager or for that matter the effected - petitioner herein.

8. I have considered the afore submission as well as the connected records.

9. It is seen that the revision petition was field at the instance of the Manager to the Government. When that be so, the communication at Ext.P13, cannot be considered to be an order which is one issued by the Government, and hence cannot be sustained. The principles laid down by the Full Bench of this Court in the decision referred to above, in my opinion, applies to the facts and circumstances in the case at hand also. W.P.(C)No.37706 of 2023 6 2025:KER:27269

10. Resultantly, I am of the opinion that Ext.P3 requires to be set aside. The consequential orders also requires to be set aside for the very same reasons. Therefore, this writ petition would stand allowed, as under:- i. ii. By setting aside Ext.P13 communication issued by the Principal Secretary. There will be a direction to the 1st respondent herein to consider the review petition filed by the 5th respondent Manager, with notice and opportunity for hearing to the 5th respondent Manager. iii. The representation filed by the petitioner to the Minister, stated to have been transferred to the Government for consideration, as evidenced by Ext.P11 communication would also be considered and disposed of by the Government, with notice and opportunity to the petitioner. iv. The disposal of the revision petition filed by the Manager as well as the representation W.P.(C)No.37706 of 2023 7 2025:KER:27269 filed by the petitioner as above, to be effected, as expeditiously as possible, at any rate, within a period of six weeks from today, taking note of the stand taken by the petitioner that he has already superannuated on 31.05.2024. v. The consequential orders at Exts.P16 and P17 would also stand set aside, so as to facilitate the consideration of the issue by the Government afresh. vi. Needless to say that the disposal as above, ought to be carried out after hearing the petitioner, the 5th respondent Manager as well as any other effected parties in the matter. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.37706 of 2023 8 2025:KER:27269 APPENDIX OF WP(C) 37706/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 . THE TRUE COPY OF THE APPOINTMENT ORDER DATED 22/11/2007 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER THE TRUE COPY OF THE APPROVAL ORDER NO:134/7491/07/D.DIS. DATED NIL ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER THE TRUE COPY OF THE ORDER NO:B4/3085/10/D.DIS. DATED 07/12/2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER . THE TRUE COPY OF THE NOTICE NO: NO:B1/81223/2019(1) DATED 15/10/2019 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT THE TRUE COPY OF THE ORDER NO: B1/81223/2019 DATED 24/10/2019 ISSUED BY THE 3RD RESPONDENT THE TRUE COPY OF THE REVISED STAFF FIXATION ORDER NO:B4/44176/2019 DATED 29/10/2019 ISSUED BY THE 4TH RESPONDENT THE TRUE COPY OF THE ORDER NO:RA(4)/75103/2020/DGE/D.DIS. DATED 29/12/2020 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE REVISION NO:12/2020- 21 DATED 08/04/2021 FILED BY THE 5TH RESPONDENT BEFORE THE GOVERNMENT Exhibit P10 THE TRUE COPY OF THE REMINDER DATED NIL FILED BY THE PETITIONER BEFORE THE MINISTER FOR EDUCATION W.P.(C)No.37706 of 2023 9 2025:KER:27269 Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 . THE TRUE COPY OF THE ORDER NO:187417/2022 DATED 25/11/2022 ISSUED BY THE 1ST RESPONDENT . THE TRUE COPY OF THE ORDER NO:RA4/75348/2023 DATED 09/06/2023 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE ORDER NO:R3/271/2020/G.EDN. DATED 26/05/2023 ISSUED BY THE GOVERNMENT . THE TRUE COPY OF THE REVIEW PETITION NO:497/2023-24 DATED 29/06/2023 PREFERRED BY THE 5TH RESPONDENT BEFORE THE GOVERNMENT . THE TRUE COPY OF THE ORDER NO:78/2023- 24 DATED 31/10/2023 ISSUED BY THE HEADMISTRESS THE TRUE COPY OF THE ORDER NO: DEOPLR/175/2023-A6 DATED 27.11.2023 ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT Exhibit P17 THE TRUE COPY OF THE ORDER NO.DDE/OA(II) 3/1981/2023 DATED 12.02.2024 ISSUED BY THE 3RD RESPONDENT

SRI T JAYAN GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.37706 of 2023 3 2025:KER:27269 JUDGMENT The petitioner, who was working as HSA (Music) with the Corporate Educational Agency managed by the 5th respondent herein, states that his appointment was originally approved as evidenced by Exts.P2 and P4. However, placing reliance on the staff fixation for the year 2019-20 the post to which he was appointed - Music Teacher – is stated to be abolished. In the mean time, Ext.P7 Staff Fixation was also issued, as per which, the petitioner as well as the Manager claims that there were available posts to which he could be accommodated as provided under the provisions of Chapter XXIII Rule 6(4)(b) of KER. The Manager filed a revision petition against the afore which stood rejected by the 2nd respondent herein as evidenced at Ext.P8. A further revision was filed to the Government by the Manager. The petitioner also filed a representation placing reliance on the availability of the post, as pointed out earlier, to the Minister. His representation was also forwarded for the consideration by the Government.

2. The revision petition filed by the Manager is seen rejected as per Ext.P13. The petitioner states that the W.P.(C)No.37706 of 2023 4 2025:KER:27269 Manager has filed a review petition against Exts.P12 and P13 orders, as evidenced by Ext.P14 and the said review petition is pending consideration before the Government.

3. It is in the afore circumstances that the captioned writ petition is filed by the petitioner.

4. The petitioner has also pointed out that he was directed to repay the salary etc. that he received.

5. I have heard Sri.Mohanlal.B, the learned counsel for the petitioner, Sri.T.Jayan, the learned Government Pleader for respondents 1 to 4 and Sri.S.Subhash Chand, the learned counsel for respondents 5 and 6.

6. The learned counsel for the petitioner, Sri.Mohanlal would contend that the rejection of the revision petition filed by the Manager, as evidenced by Ext.P13, which was to the detriment of the petitioner also, was incorrect and arbitrary for more than one reasons.

7. Sri.S.Subhash Chand on behalf of the 5th respondent would also join the issue and support the submission made by the petitioner as above. They would contend that, though the Manager filed the revision petition to the Government, admittedly, it is an order issued not by the W.P.(C)No.37706 of 2023 5 2025:KER:27269 government but, it is only a communication which is issued by the Principal Secretary of the Government. They would rely upon the Full Bench Judgment of this Court in T.Sudheer v. M.V.Susheela & Others [2009 (4) KLT 29], with respect to the importance of institutional decisions to contend that the order in the nature of the one at Ext.P13 ought not to have been issued when admittedly the revision petition was filed not to the Principal Secretary to the Government. They would also contend, without prejudice the afore contention, that the order at Ext.P13 has been issued without hearing the Manager or for that matter the effected - petitioner herein.

8. I have considered the afore submission as well as the connected records.

9. It is seen that the revision petition was field at the instance of the Manager to the Government. When that be so, the communication at Ext.P13, cannot be considered to be an order which is one issued by the Government, and hence cannot be sustained. The principles laid down by the Full Bench of this Court in the decision referred to above, in my opinion, applies to the facts and circumstances in the case at hand also. W.P.(C)No.37706 of 2023 6 2025:KER:27269

10. Resultantly, I am of the opinion that Ext.P3 requires to be set aside. The consequential orders also requires to be set aside for the very same reasons. Therefore, this writ petition would stand allowed, as under:- i. ii. By setting aside Ext.P13 communication issued by the Principal Secretary. There will be a direction to the 1st respondent herein to consider the review petition filed by the 5th respondent Manager, with notice and opportunity for hearing to the 5th respondent Manager. iii. The representation filed by the petitioner to the Minister, stated to have been transferred to the Government for consideration, as evidenced by Ext.P11 communication would also be considered and disposed of by the Government, with notice and opportunity to the petitioner. iv. The disposal of the revision petition filed by the Manager as well as the representation W.P.(C)No.37706 of 2023 7 2025:KER:27269 filed by the petitioner as above, to be effected, as expeditiously as possible, at any rate, within a period of six weeks from today, taking note of the stand taken by the petitioner that he has already superannuated on 31.05.2024. v. The consequential orders at Exts.P16 and P17 would also stand set aside, so as to facilitate the consideration of the issue by the Government afresh. vi. Needless to say that the disposal as above, ought to be carried out after hearing the petitioner, the 5th respondent Manager as well as any other effected parties in the matter. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.37706 of 2023 8 2025:KER:27269 APPENDIX OF WP(C) 37706/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 . THE TRUE COPY OF THE APPOINTMENT ORDER DATED 22/11/2007 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER THE TRUE COPY OF THE APPROVAL ORDER NO:134/7491/07/D.DIS. DATED NIL ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER THE TRUE COPY OF THE ORDER NO:B4/3085/10/D.DIS. DATED 07/12/2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER . THE TRUE COPY OF THE NOTICE NO: NO:B1/81223/2019(1) DATED 15/10/2019 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT THE TRUE COPY OF THE ORDER NO: B1/81223/2019 DATED 24/10/2019 ISSUED BY THE 3RD RESPONDENT THE TRUE COPY OF THE REVISED STAFF FIXATION ORDER NO:B4/44176/2019 DATED 29/10/2019 ISSUED BY THE 4TH RESPONDENT THE TRUE COPY OF THE ORDER NO:RA(4)/75103/2020/DGE/D.DIS. DATED 29/12/2020 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE REVISION NO:12/2020- 21 DATED 08/04/2021 FILED BY THE 5TH RESPONDENT BEFORE THE GOVERNMENT Exhibit P10 THE TRUE COPY OF THE REMINDER DATED NIL FILED BY THE PETITIONER BEFORE THE MINISTER FOR EDUCATION W.P.(C)No.37706 of 2023 9 2025:KER:27269 Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 . THE TRUE COPY OF THE ORDER NO:187417/2022 DATED 25/11/2022 ISSUED BY THE 1ST RESPONDENT . THE TRUE COPY OF THE ORDER NO:RA4/75348/2023 DATED 09/06/2023 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE ORDER NO:R3/271/2020/G.EDN. DATED 26/05/2023 ISSUED BY THE GOVERNMENT . THE TRUE COPY OF THE REVIEW PETITION NO:497/2023-24 DATED 29/06/2023 PREFERRED BY THE 5TH RESPONDENT BEFORE THE GOVERNMENT . THE TRUE COPY OF THE ORDER NO:78/2023- 24 DATED 31/10/2023 ISSUED BY THE HEADMISTRESS THE TRUE COPY OF THE ORDER NO: DEOPLR/175/2023-A6 DATED 27.11.2023 ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT Exhibit P17 THE TRUE COPY OF THE ORDER NO.DDE/OA(II) 3/1981/2023 DATED 12.02.2024 ISSUED BY THE 3RD RESPONDENT

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