RAGHAVAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner was appointed Full Time Menial (Watchman) on regular basis in the High School, Koothattukulam on 1-7-1961. He was fully qualified for holding the post. In the school year 1981-82 when the staff fixation order was issued one of the two posts of Full Time Menial was abolished. The petitioner being the junior-most Full Time Menial was granted protection. He was thereupon transferred to Malappuram District. He approached this court challenging the order of transfer by filing O.P. No. 4006/1982. This court stayed the operation of the order of transfer. The Original Petition was disposed of by judgment dated 11-8-1986 directing that the petitioner should be retained in the very same school till his retirement. Accordingly he was retained in the school at Koothattukulam till he retired on superannuation on 31-3-1987.

(2.) During the academic years 1981-82 and 1983-84 the petitioner had been paid 54 days' salary as the value of the earned leave surrendered. The said earned leave was credited in the account of the petitioner as if he was a son-vacation staff. The stand taken by the respondents is that the petitioner became a protected Menial from 1981-82 and that be was not entitled to be on duty during vacation. Consequently he bad no earned leave as if he was a non vacation staff. In support of this plea reliance was placed on Exts.R2(a) end R29(b) Circulars issued by the Director of Public Instruction. Ext.R2(a) Circular deals with the case of Laboratory and Library Attenders. As per these circulars all categories of non teaching staff in aided schools except Laboratory and Library Attenders are treated as non vacation staff and hence they are eligible to enjoy the benefit of surrender of leave etc. Ext.R2(b) was issued on account of the audit objection relating to the benefit of surrender of earned leave enjoyed by the protected con-teaching staff till 24-3-1973. As per that circular the benefit of surrender of earned leave enjoyed by the protected non teaching staff till 24-3-1973 is to be treated as in order, with a view to clear ail audit objections raised against the surrender of earned leave already granted to the protected non teaching staff in aided schools up to 24-3-1973. These two circulars have no relevance to the petitioner's case. Even as per the respondents' contentions, the petitioner became protected only from 1981-82. During the years 1981-82 and 1982-83 the earned leave was credited in the account of the petitioner as if he was a non vacation staff. No reason is stated in the counter affidavit for treating him other wise than as a non vacation staff from 1981-82. The duties and responsibilities and the nature of work of regular and protected Menials are the same. Both categories of personnel are doing the same work. The petitioner was told that he was not to attend vacation duty for the first time on 1-4-1986, by Ext. P2 order. The petitioner has specifically averred that inspite of Ext. P2 he continued to discharge duties as Watchman during vacations. That statement has not been denied. Further, the proviso to R.1 in Chap.24A of the Kerala Education Rules states:

(3.) The petitioner being a qualified non teaching staff appointed against a sanctioned post prior to 1969-70 on regular basis was entitled to continue in that post till retirement. Accordingly he most be deemed to have continued as a Menial (Watchman) on regular basis till 31-3-1987. The above mentioned statutory provision has not been varied by amending the provisions in the K.E.R. Any executive order if made, contrary to the said statutory provision cannot go to deny the petitioner's status as regular Menial.