Ravi.L.N vs State Of Kerala
2021 Latest Caselaw 15899 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                        WP(C) NO. 8407 OF 2019
PETITIONER:
           RAVI.L.N.
           AGED 49 YEARS
           S/O.SANKARAN NAIR.M., HSST (HINDI), CATHOLICATE HSS,
           PUTHUKAL, MALAPPURAM, RESIDING AT LAKSHMI NIVAS,
           KOLLAM-KOYILANDY.P.O., KOZHIKODE.

            BY ADVS.
            M.SASINDRAN
            SRI.V.VENUGOPAL


RESPONDENTS:
     1     STATE OF KERALA,
           REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION
           DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

    2       THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
            SHANTI NAGAR, THIRUVANANTHAPURAM-695014.

    3       THE REGIONAL DEPUTY DIRECTOR,
            OFFICE OF THE REGIONAL DEPUTY DIRECTOR, HIGHER
            SECONDARY EDUCATION, MALAPPURAM-676505.

    4       THE CORPORATE MANAGER,
            THE SOCIETY OF THE ORDER OF SACRED TRANSFIGURATION,
            MOUNT TABOR, PATHANAPURAM-689695.

            BY ADVS.
            GOVERNMENT PLEADER
            SRI.KURIAN GEORGE KANNANTHANAM (SR.)
            SRI.TONY GEORGE KANNANTHANAM


            SRI. SUNIL KUMAR KURIAKOSE - GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8407 OF 2019
                                    2

                             JUDGMENT

The petitioner says that she is presently working as Higher

Secondary School Teacher (H.S.S.T) (Hindi) in "Catholicate

H.S.S", Puthukal, Malappuram and has approached this Court

aggrieved by denial of the up-gradation of the post of H.S.S.T

(Hindi) from the academic year 2002-03, even though apposite

proposal for the same had been made by the 4 th respondent -

Corporate Manager of the School, based on the approved Staff

Fixation Order, namely Ext.P2.

2. Sri.M.Sasindran - learned counsel for the petitioner,

began his submissions saying that the issues in this case have

already been considered by this Court at least in three judgments

and cited K.V.Sreejith & others vs. State of Kerala & others

(WP(C) No.20849/2013); Cyriac Stephen vs. State of Kerala &

others (WP(C) No.3530/2018 and Lissimole.M vs. state of

Kerala & others (WP(C) No.9293/2019). Sri.M.Sasindran

asserted that the common view in all the afore three judgments is WP(C) NO. 8407 OF 2019

that when posts are created by the Government, it cannot operate

prospectively alone and that it should relate back to the date on

which they become eligible to the School, based on the student

strength. Sri.M.Sasindran showed me that, going by Ext.P2, the

post of H.S.S.T (Hindi) was available throughout from the year

2002-03, but that when Ext.P5 order was issued on 15.07.2013 -

which is, in fact, a common order with respect to 368 Aided

Higher Secondary Schools - the post was allowed to be created

only prospectively. He submitted that this stand of the

Government in Ext.P5 is incorrect and illegal and that this has

been found so in the aforementioned three judgments. He,

therefore, prayed that this writ petition be allowed in the manner

as prayed for by his client.

3. The learned Government Pleader - Sri.Sunil Kumar

Kuriakose, controverted the afore submissions of

Sri.M.Sasindran, however, without disputing the fact that the

three judgments afore mentioned make affirmative declarations of

law as stated by the petitioner; but arguing that, even going by WP(C) NO. 8407 OF 2019

Ext.P2, for three consecutive years from 2002-03, the School did

not have sufficient student strength to accommodate the post of

H.S.S.T claimed by the petitioner. He, therefore, prayed that this

Court may not grant any relief to the petitioner and that this writ

petition be dismissed. He then added that a Special Leave Petition

is pending before the Hon'ble Supreme Court with respect to the

question as to whether creation of posts would have retrospective

effect.

4. I have examined the afore contentions and have also

gone through the pleadings on record.

5. I notice that a counter affidavit has been filed by the 3 rd

respondent, wherein, the following averments have been made:

"It is further submitted that in order to upgradation of the post consistency of students strength ie., minimum of 60 + 1 and +2 students strength except a marginal increase for both +1 and +2 classes for 3 consecutive years are required but on verification of the staff fixation order No.G/5084/14/RDD/HSE/MLPM dated 06.08.2014.

It is seen that consistency of students strength for both +1 and +2 for consecutive years were not maintained till 2011-12 academic year. During period from 2002-03 to 2005-06 sufficient strength (without marginal increase) WP(C) NO. 8407 OF 2019

was not available in +2 classes from 2006-07 to 2007-08. Strength was available but in 2008-09 strength again decreased in +2 classes. Again the strength is maintained in 2009-10 but decrease in +2 classes in 2010-11 academic year. Thus the required consistency of students strength was not maintained till 2010-11 academic year.

Thereafter as per GO(Ms)No.167/11/G.Edn dated 03.08.2011 an additional batch was sanctioned in Catholicate HSS, Puthukal, with effect from 2011-12 academic year. As per GO(Rt)No.680/12/G.Edn dated 10.02.2012 it was directed to engage guest lecture to handle the additional work load on additional batch till post are created by the Government. Accordingly increase students strength due to sanctioning additional batch could not be considered for upgradation of HSST (Junior) post till the date of post creation ie., 15.07.2013.

Moreover in similar circumstances may orders are passed by this Hon'ble Court to approve the appointment from initial date as sought. But now the matter is pending before this Hon'ble Apex Court in SLP No.17479/2020 & SLP No.15232-15257/2019 interim order has been passed. True copy of the orders are produced herewith and marked as Annexure R3(a) & (b)."

6. It is perspicuous from the afore averments that

respondents also admit that this Court has already issued orders

granting approval to the teachers similarly situated as the

petitioner, from the initial dates of their appointment. They only WP(C) NO. 8407 OF 2019

say that the legal issue is still pending before the Hon'ble

Supreme Court in an SLP.

7. That said, the question whether the order creating the

posts should operate only prospectively or retrospectively has

been conclusively found by this Court and even though the

Government says they have challenged the judgments before the

Hon'ble Supreme Court, they themselves admit that no orders of

interdiction has been issued yet by the Hon'ble Court. Therefore,

it is beyond contest that I am bound to follow the view already

taken by this Court earlier, from the touchstone of judicial

consistency and discipline.

In the afore circumstances, I deem it necessary to follow the

ratio in the judgments afore cited by Sri.M.Sasindran and to thus

allow this writ petition in the following manner.

Resultantly, this writ petition is allowed and Ext.P4, to the

extent to which it grants approval to the appointment of the

petitioner only with effect from 22.07.2013 is set aside; with a

consequential direction to respondents 2 and 3 to reconsider the WP(C) NO. 8407 OF 2019

claim of the petitioner, based on the declarations of law by this

Court in the afore cited judgments and to issue appropriate orders

thereon, after affording an opportunity of being heard to the

petitioner and to the 4th respondent - Manager--either physically

or through video conferencing--as expeditiously as is possible,

but not later than two months from the date of receipt of a copy of

this judgment.

Needless to say, all eligible benefits of the petitioner shall be

disbursed by the respondents without any avoidable delay

thereafter; and it is clarified that, should the Hon'ble Supreme

Court declare the law contrary to the manner in which it has been

now done by this Court, then the State will be at full liberty to take

consequential action as is permitted in law.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/02/08/2021 WP(C) NO. 8407 OF 2019

APPENDIX OF WP(C) 8407/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER APPROVING THE PETITIONER AS HSST (JUNIOR) HINDI.

EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE REGIONAL DEPUTY DIRECTOR.

EXHIBIT P3 TRUE COPY OF THE CIRCULAR ISSUED BY THE DIRECTOR IN WHICH LIST OF SCHOOLS WHICH IS ENTITLED FOR ADDITIONAL CREATION OF POST.

EXHIBIT P4 TRUE COPY OF THE ORDER NO.G/3616/2014/RDD/MLPM/HSE DATED 14.10.2014 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE G.O.(MS)NO.211/2013/G.EDN.

DATED 15.7.2013.

EXHIBIT R3 (A) TRUE COPY OF THE INTERIM ORDER SLP NO.17479/2020

EXHIBIT R3 (B) TRUE COPY OF THE INTERIM ORDER SLP NO.15232-

15257/2019