Kerala High Court
U.K.Nassar vs State Of Kerala on 8 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942
WP(C).No.28800 OF 2017(Y)
PETITIONER:
U.K.NASSAR, AGED 43 YEARS
SON OF KUNJABDULLA, URDU TEACHER,
THIRUVAL U.P.SCHOOL, PANOOR,
ELANGODE, KANNUR-670692.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSRTUCTIONS,
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE ASSISTANT EDUCATIONAL OFFICER,
PANOOR, P.O.PANOOR, KANNUR DISTRICT-670692.
4 THE MANAGER, THIRUVAL U.P.SCHOOL, P.O.ELANGODE,
KANNUR DISTRICT-670692
5 THE HEADMASTER, THIRUVAL U.P.SCHOOL,
P.O.ELANGODE, KANNUR DISTRICT-670692.
SR.G.P. P.M. MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 28800/17
2
JUDGMENT
The petitioner says that he was appointed
as an 'Urdu' Teacher from the year 1994 to
2012, during the time when the permanent
teacher by name Sri.Moidu had availed Leave
Without Allowances. He says that, as is
evident from Exts.P2 and P4, he had been
granted appointment for the period from
21.07.2007 to 20.07.2012 and earlier from
21.07.2002 to 20.07.2007, both of which were
validly approved.
2. The petitioner thus says that he is,
therefore, entitled to claim appointment under
Rule 51A Chapter XIVA of the Kerala Education
Rules (KER for short) and that subsequently,
when Sri.Moidu retired on 31.03.2015, he was
appointed to the said post, but denied full-
time benefit, saying that there were only 12
periods and less than 105 students in the
School, which will not entitle full-time
WPC 28800/17
benefits to a part-time teacher.
3. The petitioner says that the finding
of the Educational Authorities to such effect,
which has culminated in Ext.P13 order of the
Government, is without basis, because he had
already obtained two spells of five years
continuous service and therefore, that going
by the relevant Government Orders - copies of
which have been placed on record as Exts.P16
and P17 - he would be entitled to be granted
full-time benefits, even though the post is
part-time. He, therefore, prays that Ext.P13
be set aside and the competent Educational
Authority be directed to grant him full-time
benefits to the post which he was appointed on
01.06.2015.
4. In response to the afore submissions
made on behalf of the petitioner by his
learned counsel - Smt.P.A.Jenziya, the learned
Senior Government Pleader - Sri.P.M.Manoj,
WPC 28800/17
submitted that a counter affidavit has been
filed on record, wherein, it has been
explained that the petitioner's appointment to
the vacancy caused on account of Sri.Moidu
having availed Leave Without Allowances was
not continuous but to spells which were less
than five years. He submitted that this has
been made clear in paragraph two of Ext.P13,
wherein, the spells have been enumerated; and
added that even though the petitioner was
granted approval till 29.12.2012 through
Ext.P1, it had been made clear that such
approval will be limited if Sri.Moidu returned
to join duty, which he did on 13.03.2012.
5. The learned Senior Government Pleader
submitted that, therefore, the petitioner's
appointment for the period from 21.07.2007 to
13.03.2012 would not inure to him the benefit
as has been prayed for in this case,
particularly because the benefit of diversion
WPC 28800/17
of Group C Subjects would be eligible only to
Sri.Moidu, which continued until he retired on
31.03.2015. He further submitted that since,
admittedly, the school had only 12 periods for
the academic year 2015-2016 and since there
were only 103 students studying therein, the
petitioner cannot claim full-time benefits for
his appointment made by the Manager with
effect from 01.06.2015.
6. I have evaluated the afore submissions
and have also examined the documents and
pleadings available on record.
7. The specific case of the petitioner is
that he had been working continuously from
1994 till 29.02.2007, when the teacher on
Leave Without Allowances Sri.Moidu, joined
back on duty. He asserts that the approval
granted, as is evident from Ext.P4, gives a
continuous spell of five years and that the
appointment, as has been given to him through
WPC 28800/17
Ext.P5 was originally for the said period, but
was cut down on account of the fact that
Sri.Moidu returned to join duty. He thus
relies on Exts.P16 and P17 orders, the former
of which says that the teacher, who has
aggregate service of five years, will be
entitled to full-time benefits; while the
latter clarifies it by saying that this period
should be continuous, which is to say five
years continuous service. His contention is
that, either way, he has five years of service
and therefore, that Ext.P13 has been issued
without considering this in any manner.
8. I find force in the contentions of the
petitioner because, as per Ext.P4, he has five
years continuous service and by Ext.P5, though
he was granted that benefit, it was cut short
only because Sri.Moidu joined duty on
13.03.2012.
9. That apart, the petitioner is a Rule
WPC 28800/17
51A claimant, which was recognised when he was
appointed on 01.05.2015. Obviously, therefore,
the fact that the school was an 'uneconomic'
one would be of no consequence, as far as his
appointment is concerned; and any way, he
asserts that there were 30 students studying
Urdu in Standards V to VII during the year
2015-2016, while the said post was continuing
as a sanctioned one, even though the total
strength had come down to 103 than the
prescribed minimum of 105. I am, therefore, of
the view that Ext.P13 cannot find my favour
and the Government must reconsider the
petitioner's claim taking note of the afore
submissions and contentions.
Resultantly, I order this writ petition
and set aside Ext.P13; directing the competent
Secretary of the Government to reconsider the
claim of the petitioner for full-time benefits
in the part-time post of 'Urdu' Teacher in the
WPC 28800/17
school concerned, after affording him as also
the Manager of the School an opportunity of
being heard - either physically or through
videoconferencing - thus culminating in an
appropriate order thereon as expeditiously as
is possible, but not later than three months
from the date of receipt of a copy of this
judgment.
Needless to say, while completing the
afore exercise, Government will specifically
look into the impact of Exts.P15 and P17
Government Orders, as also his contention that
since he is a Rule 51A claimant, the School
being 'uneconomic' or otherwise, would not be
relevant.
Sd/-
DEVAN RAMACHANDRAN
RR JUDGE
WPC 28800/17
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
AND APPROVAL THEREON DATED
11/06/1994.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER
AND APPROVAL THEREON DATED
30/10/1995.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER
AND APPROVAL THEREON DATED
21/07/1997.
EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER
AND APPROVAL THEREON DATED
21/07/2002.
EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER
AND APPROVAL THEREON
DATED21/07/2007.
EXHIBIT P6 TRUE COPY OF THE RE-APPOINTMENT
ORDER DATED 01/06/2015 OF THE
PETITIONER.
EXHIBIT P7 TRUE COPY OF THE ORDER OF THE
ASSISTANT EDUCATIONAL OFFICER DATED
22/04/2016.
EXHIBIT P8 TRUE COPY OF THE STATEMENT OF
FIXATION OF THE PETITIONER DATED
20/04/2011.
EXHIBIT P8(A) TRUE COPY OF THE OPTION OF THE
PETITIONER DATED 20/04/2011.
EXHIBIT P9 TRUE COPY OF THE REVISION PETITION
DATED 03/05/2016 OF THE PETITIONER
BEFORE THE DIRECTOR.
EXHIBIT P10 TRUE COPY OF THE ORDER OF THE
DIRECTOR DATED 17/10/2016.
EXHIBIT P11 TRUE COPY OF THE REVISION PETITION
SUBMITTED BEFORE THE GOVERNMENT
WPC 28800/17
DATED 29/10/2016.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC
NO.36177/2016-V DATED 11/11/2016.
EXHIBIT P13 TRUE COPY OF THE GO(RT)
NO.375/2017/G.EDN. DATED 13/02/2017
OF THE GOVERNMENT.
EXHIBIT P14 TRUE COPY OF THE GO(MS)
NO.62/73/S.EDN. DATED 02/05/1973 OF
THE GOVERNMENT.
EXHIBIT P15 TRUE COPY OF THE CIRCULAR
NO.J3/80/2019/G.EDN. DATED
20/08/2019 OF THE GOVERNMENT.
EXHIBIT P16 TRUE COPY OF THE GO(MS)
NO.189/82/G.EDN DATED 14/12/1982 OF
THE GOVERNMENT.
EXHIBIT P17 TRUE COPY OF THE GO(MS)
NO.11/87/G.EDN. DATED 07/01/1987 OF
THE GOVERNMENT.
