Kerala High Court

Usha C.N vs State Of Kerala on 5 February, 2021

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                         WP(C).No.35424 OF 2018(C)


PETITIONER:

               USHA C.N,
               AGED 49 YEARS
               W/O SHRI C.RAVINDRAN, PRASANTHI NILAYAM, NANDIPULAM (PO),
               CHENGALOOR (VIA), THRISSUR DISTRICT- 680 312.

               BY ADVS.
               SRI.KALEESWARAM RAJ
               SRI.VARUN C.VIJAY
               KUM.A.ARUNA

RESPONDENTS:

       1       STATE OF KERALA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
               GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM- 695001.

       2       DIRECTOR OF PUBLIC INSTRUCTIONS,
               THIRUVANANTHAPURAM-695001.

       3       DEPUTY DIRECTOR OF EDUCATION,
               THRISSUR - 680003.

       4       DISTRICT EDUCATIONAL OFFICER,
               THRISSUR DISTRICT - 680503.

       5       MANAGER,
               P.V.S.H.S. PARAPPUKKARA, THRISSUR DISTRICT-680310.

       *ADDL   SMITHA.T.S,
       R6      W/O.SUBASH V.K, THANDASSERRY HOUSE,KANJOOR P.O, ALAGAPPA
               NAGAR.

               *(ADLL R6 IS IMPLEADED AS PER ORDER DATED 04-01-2021 IN IA
               1/2020 IN WP(C)35424/18)


      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2021,
ALONG WITH WP(C).4657/2019(F), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).Nos.35424/2018 &        4657/2019

                                            2




                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                          PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                               WP(C).No.4657 OF 2019(F)


PETITIONER:

                 SMITHA T.S.,
                 AGED 39 YEARS
                 W/O. SUBHASH V.K, THANDASSERY HOUSE, KANJOOR, ALANGAPPA
                 NAGAR, PIN 680 302.

                 BY ADV. SMT.I.SHEELA DEVI

RESPONDENTS:

       1         STATE OF KERALA,
                 REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
                 EDUCATION DEPARTMENT, THIRUVANANTHAPURAM 695 001.

       2         THE DEPUTY DIRECTOR OF EDUCATION,
                 2ND FLOOR, CIVIL STATION, AYANTHOLE, THRISSUR, PIN 680 003.

       3         THE DISTRICT EDUCATIONAL OFFICER,
                 IRINJALAKUDA, THRISSUR DISTRICT, PIN 680 121.

       4         THE MANAGER,
                 P.V.S HIGH SCHOOL, PARAPPUKARA,
                  THRISSUR DISTRICT, PIN 680 310.

       5         USHA C.N,
                 W/O. C. RAVINDRAN, PRASANTHI NILAYAM, NANDIPULAM P.O,
                 CHENGALLOOR (VIA), THRSSIUR DISTRICT 680 312.


                 BY   ADV.   SRI.V.A.MUHAMMED
                 BY   ADV.   SRI.M.SAJJAD
                 BY   ADV.   SRI.KALEESWARAM RAJ
                 BY   ADV.   KUM.A.ARUNA
                 BY   ADV.   SMT.MAITREYI SACHIDANANDA HEGDE

OTHER PRESENT:
                 SRI.P M MANOJ - SR GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2021,
ALONG WITH WP(C).35424/2018(C), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).Nos.35424/2018 &    4657/2019

                                      3




                               JUDGMENT

These two writ petitions are the result of conflicting claims

made by two persons to the vacancy of High School Assistant

(HSA) in Physical Science in "P.V.S.H.School", which is managed

by the 5th respondent.

2. While Smt.Smitha T.S., petitioner in W.P.(C)

No.4657/2019, asserts that she was enjoying a Rule 51A claim

and therefore, entitled to the said vacancy; Smt. Usha C.N -

petitioner in W.P.(C).No.35424/2018, says that she was

appointed to this vacancy by the Manager validly and therefore,

entitled to the benefit of salary for the period she worked from

26.06.2007 to 24.10.2017.

3. I notice that the controversy in these cases arose

because the Manger initially refused to recognize the right of

Smt.T.S.Smitha as a Rule 51A claimant, but it was thereafter,

declared by this Court in the judgment in W.A.No.2466/2005 - a

copy of which has been appended to W.P.(C).No.4657/2019 as

Ext.P1 - that the Manger ought to have appointed her to the

vacancy in question, since her right as a Rule 51A claimant is

established and that Smt.C.N.Usha can be appointed to any WP(C).Nos.35424/2018 & 4657/2019

other available vacancy. This judgment appears to have been

taken up in an appeal before the Hon'ble Supreme Court by the

Manger by filing a Special Leave Petition and initially stayed.

4. However, through the judgment dated 19.09.2017,

the Civil Appeal, consequent to the afore mentioned Special

Leave Petition, was dismissed and obviously, therefore, the

declarations in the judgment in W.A.No.2466/2005 (Ext.P1 in

W.P.(C).No.4657 of 2019) have now become final.

5. Therefore, as matters now stand, Smt.T.S.Smitha is

certainly entitled to be appointed against a vacancy that arose

in the year 2007, and if that be so, the position of Smt.Usha C.N

will become in jeopardy.

6. However, thankfully for her, it appears that there was

a vacancy consequent to a teacher, by name Smt.Demmy John,

having taken Leave Without Allowances, and when this matter

was called today, the learned counsel for the Manager of the

School, acceded that appointment of Smt.C.N.Usha can be

adjusted against that vacancy with effect from 26.06.2007.

7. In that perspective, it is clear that most of the WP(C).Nos.35424/2018 & 4657/2019

controversies in these cases are now coming to an end, since

Smt.T.S.Smitha can certainly be now appointed against the

vacancy that arose in the year 2007 - consequent to the

promotion of a Teacher by name Smt.N.Geetha; while,

Smt.C.N.Usha, can stand regularized against the other vacancy

caused due to availing of Leave Without Allowances by

Smt.Demmy John, also with effect from 26.06.2007.

8. That said, I must record the submissions of

Smt.Sheela Devi I. - learned counsel appearing for Smt.Smitha

T.S., that her client, on account of the fact that she was not

getting appointed in spite of all these litigations, had joined the

services of the Judiciary in Irijalakuda as a Last Grade Servant

in the year 2012, but that she wants to resign from there and

join the school in the vacancy which is rightfully hers.

9. It is thus ineluctable that Government will have to

now take a final call on all these aspects at the earliest .

In the afore circumstances, I order these writ petitions in

the following manner:

(a) W.P.(C).No.4657/2019 is allowed, and the WP(C).Nos.35424/2018 & 4657/2019

Manager is directed to issue an appropriate

appointment order in favour of the petitioner

namely Smt.T.S.Smitha, against the vacancy arose

in the year 2007, within a period of two weeks

from the date of receipt of a copy of this judgment;

and forward the same to the competent District

Educational Officer (DEO) without any further

delay thereafter. On the proposal for approval of

Smt.T.S.Smitha so reaching the DEO, the said

Officer will consider the same and issue

appropriate orders thereon, also taking note of the

fact that Smt.T.S.Smitha, had been working in the

Judicial Department from 14.12.2012, until the

date on which she resigns therefrom.

(b) W.P.(C).No.35424/2018 is ordered, and

the Manager is directed to issue a fresh

appointment order in favour of the petitioner -

Smt.C.N.Usha, adjusting her against the vacancy of

Smt.Demmy John, with effect from 26.06.2007,

within a period of two weeks from the date of

receipt of a copy of this judgment; and forward the WP(C).Nos.35424/2018 & 4657/2019

proposal for approval of the same to the

jurisdictional DEO, without any further delay

thereafter. Once the said proposal reaches the

DEO, the said officer will issue appropriate orders

thereon and will also ensure that salary and other

benefits are disbursed to Smt.C.N.Usha for the

period from 26.06.2007 to 24.10.2017, without any

delay thereafter, but within a period of three

months from the date on which the proposal

reaches. Consequently, Ext.P6 Government Order

is set aside, so as to enable the afore directed

exercise to be taken forward by the DEO as per

law.

Needless to say, in view of the observations of the learned

Division Bench in W.A.No.2466/2005, which has been confirmed

by the Hon'ble Supreme Court, the Government, while

completing the exercise as directed (a) above, cannot take the

stand that Smt.T.S.Smitha, does not have a Rule 51A claim.

After I dictated this judgment, Sri. Varun C.Vijay - learned

counsel for Smt.C.N.Usha, submitted that she has also raised a WP(C).Nos.35424/2018 & 4657/2019

claim for deployment and prayed that same be left open, since it

has not been considered by this Court on its merits. It goes

without saying that since I have not considered this issue, it will

be left open for her to pursue it in future, if it becomes so

warranted.

SD/-

                                         DEVAN RAMACHANDRAN

rp                                                JUDGE
 WP(C).Nos.35424/2018 &   4657/2019






                         APPENDIX OF WP(C) 35424/2018

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE APPOINTMENT ORDER DATED
                           25.6.2007.

EXHIBIT P2                 TRUE COPY OF THE JUDGMENT DATED 22.8.2007 IN
                           W.A.NO.2466/2005.

EXHIBIT P3                 TRUE COPY OF THE ORDER NO.B2-10116/2017 LDS DATED

2.2.2018 PASSED BY THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REVISION PETITION DATED 29.3.2018 ALONG WITH THE POSTAL RECEIPT.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12.4.2018 IN WPC.NO.13059/2018.

EXHIBIT P6 TRUE COPY OF G.O(RT)NO.3503/2018/G.EDN DATED 12.9.2018.

EXHIBIT P7 TRUE COPY OF THE G.O(P)NO.29/2016/G.EDN DATED 29.1.2016.

WP(C).Nos.35424/2018 & 4657/2019

APPENDIX OF WP(C) 4657/2019

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN W.A NO. 2466/2005 DATED 22-08-2007 OF THE HON'BLE HIGH COURT OF KERALA, ERENAKULAM.

EXHIBIT P2 TRUE COPY OF THE ORDER IN CIVL APPEAL NO.

7465/2009 DATED 19/09/2017 OF THE HON'BLE SUPREME COURT OF INDIA

EXHIBIT P3 TRUE COPY OF THE ORDER NO. B2/16090/2018 DATED 19-11-2018 ISSUED BY THE 2ND RESPONDENT.