Mini T. J. v. State of Kerala, Rep. by Secretary, General Education Department
2020-10-14
ANU SIVARAMAN
body2020
DigiLaw.ai
JUDGMENT : ANU SIVARAMAN, J. 1. This writ petition is filed seeking the following reliefs: “(i) to issue a Writ of Certiorari, or any other appropriate writ, order or direction, quash Exhibit P-15 order. (ii) to issue a Writ of Certiorari; or any other appropriate writ, order or direction, to quash Exhibit P-8 order issued by the 1st respondent. (iii) To issue a Writ of Manadamus, or any other appropriate writ order or direction, directing the respondents 1 to 3 to approve the appointment of the petitioner as Clerk for the period from 16.6.2010 to 14.7.2012 at the 4th respondent school. (iv) to issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as Full Time Menial from 1.6.2018 onwards.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader, the learned counsel appearing for the 4th respondent as well as the learned counsel appearing for the 5th respondent. 3. It is submitted that the issue which arises for consideration in this writ petition is with regard to the approval of the appointment of the petitioner as Full Time Menial from 01.06.2018. It is submitted that the petitioner had earlier approved service as H.S.A. in the school and the said appointment was approved on daily wage basis. It is submitted that though the petitioner was later appointed as Clerk, the post against which the petitioner was appointed was abolished and the petitioner was thrown out of service. When a voluntary retirement vacancy arose on 31.03.2017, the petitioner was again appointed, but since the 5th respondent had raised a claim under the dying-in-harness scheme, the petitioner's appointment as Clerk was not approved and the 5th respondent was appointed in the vacancy of Clerk which arose on 03.04.2017. It was thereafter that the petitioner was appointed as Full Time Menial on 01.06.2018. It is submitted that approval for the said appointment was also rejected on various grounds. However, by Ext.P15 order passed by the Government, it is clear that the surviving objection against the petitioner's appointment as Full Time Menial with effect from 01.06.2018 was only that she had crossed the age of 40 years and was therefore over aged for the said appointment. 4.
However, by Ext.P15 order passed by the Government, it is clear that the surviving objection against the petitioner's appointment as Full Time Menial with effect from 01.06.2018 was only that she had crossed the age of 40 years and was therefore over aged for the said appointment. 4. The learned counsel for the petitioner submits that the provisions of Rule 5 of Chapter XXIVB of the KER provides that the condition regarding age limit and relaxation thereof for appointment of non-teaching staff in Government schools shall apply to the non-teaching staff of aided schools as well. The Rule further provides that the date of determination of age shall be the 1st of January of the year in which appointment is made. 5. Relying on the provisions of the Last Grade Service Special Rules in which the post of Full Time Menial in the Education Department is included, it is submitted that Rule 8(a) provides an upper age of 35. It is submitted that the upper age had been raised to 40 years by the Public Services (Raising of Upper Age Limit for Appointment) Rules, 1978 and further raised by another year by the Public Services (Raising of Upper Age Limit for Appointment) Rules, 2014. The 1978 Rules provided that the upper age limit provided in the Special Rules for eligibility for appointment to posts shall stand raised by 5 years. The 2014 Rules specifically provides that the Special Rules for the various State services and Subordinate services in force shall stand modified as if the upper age limit prescribed in those Special Rules for eligibility for appointment to posts included in the various services had been raised by one year. The 2014 Rules have came into force on the 1st day of April 2012. 6. In the above view of the matter, it is clear that the upper age limit for appointment to the post of Full Time Menial in the Education Department stand raised by further one year and therefore the upper age limit for such appointment in the Government now stands at 41 years.
6. In the above view of the matter, it is clear that the upper age limit for appointment to the post of Full Time Menial in the Education Department stand raised by further one year and therefore the upper age limit for such appointment in the Government now stands at 41 years. In view of the fact that the age limit and relaxation for appointment of non-teaching staff in Government schools having been made specifically applicable to aided schools as well, the raising of upper age limit by 5 years in 1978 and further by one year in 2014 would be applicable for the appointment to the post of Full Time Menial in aided schools as well. If that be so, the petitioner whose date of birth is 16.10.1977 is eligible for appointment as Full Time Menial with effect from 01.06.2018 since she could not have crossed the upper age limit. It is clear from Ext.P15 that the respondents have considered upper age limit as 40 years. The raising of the upper age limit by 2014 rules have not been considered by the Government. 7. In the above view of the matter and in view of the fact that the crossing of the upper age limit by the petitioner was the only surviving objection in Ext.P15, I am of the opinion that the appointment of the petitioner as Full Time Menial is liable to be approved. Ext.P15 order to the extent it refuses approval to the petitioner's appointment as Full Time Menial from 01.06.2018 is, therefore, set aside. There will be a direction to the 3rd respondent to approve the appointment of the petitioner as Full Time Menial from 01.06.2018. Orders shall be passed within a period of one month from the date of receipt of a copy of this judgment and prospective salary shall be paid to the petitioner. The arrears of salary shall be calculated and disbursed to the petitioner within a period of two months thereafter. 8. This writ petition is ordered accordingly.