Kerala High Court
July Joseph vs The 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.35011 OF 2011(B)
PETITIONER:
JULY JOSEPH,
WIFE OF JOHN ALAPPAT, AGED 32 YEARS,
UPPER PRIMARY SCHOOL ASSISTANT,
UPPER PRIMARY SCHOOL, PERINCHERRY P.O,
AVINISSERY, (VIA) OLLUR,
THIRSSUR DISTRICT- 680 360
BY ADV. SRI.V.A.MUHAMMED
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONN
JAGATHY, THIRUVANANTHAPURAM 695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION
THRISSUT AT AYYANTHOLE, THRISSUR DISTRICT 680 003.
4 THE ASSISTANT EDUCATIONAL OFFICER
CHERPU, MINI CIVIL STATION, THRISSUR 680 561.
5 THE HEADMISTRESS
UPPER PRIMARY SCHOOL, PERINCHERRY, P.O.AVINISSERY,
(VIA) OLLUR, THIRSSUR DISTRICT 680 313.
6 THE MANAGER,
UPPER PRIMARY SCHOOL, PERINCHERRY, P.O., AVINISSERY,
(VIA) OLLUR, THIRSSUR DISTRICT 680 313.
GP SUNIL KUMAR KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.35011 OF 2011 2
JUDGMENT
The petitioner says that she was working
as an Upper Primary School Teacher (UPST) in
the services of "Upper Primary School",
Perincherry, Thrissur - of which the 6th
respondent is the Manager - with effect from
07.07.2003, against a retirement vacancy,
which was approved by the competent
Educational Authorities.
2. The petitioner says that while
continuing so, she was relieved from the
services with effect from 15.7.2004 for want
of vacancy; but asserts that applying the
Government Circular dated 27.1.2005, which
extended the benefit of 1:40 teacher - student
ratio for the Academic Year 2004-2005, she
ought to have been allowed to continue for
that Academic Year.
3. The petitioner says that she was,
thereafter, reappointed with effect from
01.6.2005 against a retirement vacancy, but
that the period when she was kept out of
service for no reason attributable to her,
namely between 15.7.2004 and 31.5.2005, has
not been yet regularised. The petitioner
contends that since the aforementioned
Government Circular entitles her to continue
without any break, she is eligible to be
regularized during the said period, along with
all monetary benefits.
4. The petitioner says that, she,
therefore, approached the competent
Authorities of the Education Department, as
per the hierarchy in the Kerala Education
Rules (KER), but that it finally ended in
Ext.P9 order issued by the Government,
wherein, her request has been rejected, saying
that: for one, she had not worked for the
period in question; and for the second, her
request is highly belated, since she had
approached the Authorities after 8 years.
5. The petitioner says that Ext.P9 is
illegal because what it has done is to rob her
of a vested right which she obtained in terms
of the Government Circular mentioned above.
The petitioner, therefore, prays that Ext.P9
be set aside and the Educational Authorities
be directed to regularize her service for the
period between 15.7.2004 and 31.5.2005 and to
grant all service benefits.
6. In response to the submissions made
on behalf of the petitioner by her learned
counsel, Shri.V.A.Muhammed, the learned
Government Pleader, Sri.Sunil Kumar Kuriakose,
submitted that her request for payment of
salary during the period in question cannot be
granted, since, admittedly, she had not worked
during the said period. He added to this
by saying that, as has been stated in Ext.P9,
the petitioner's request to retain her in the
School by applying the teacher - student ratio
of 1:40 cannot also be considered, since she
was not working during the relevant period and
that said Government Order would apply only to
persons who remained in service. The learned
Government Pleader, therefore, prayed that
this writ petition be dismissed.
7. When I evaluate the afore
submissions and examine Ext.P9, which is the
order impugned, it is without doubt that
Government has found against the petitioner
for the reason that she had not worked for the
relevant period, thus being not entitled to be
granted the benefit of the teacher - student
ratio of 1:40 and also for the reason that she
had approached the Educational Authorities
after 8 years.
8. I am afraid that I cannot accede to
either of these reasons stated by the
Government because - for one, if the
petitioner was entitled to be retained in the
School applying the teacher - student ratio of
1:40, the fact that it was not done cannot be
used against her thereafter, saying that she
is not entitled to the said benefit because
she was not in service.
9. The irony is that, had the petitioner
continued in service, then she would have got
the benefit of teacher - student ratio of
1:40, but the fact that she was sent out of
service without applying it has now been used
against her subsequently to assert that the
circular would not apply to her.
10. In that perspective, the fact that
the petitioner had approached the Authorities
later would be of no consequence, since her
claim cannot be seen to be belated or stale,
particularly when she claims her right in law
based on valid Government Circulars.
11. Pertinently, at the time when the
petitioner was relieved from service on
15.7.2004, Government had not issued the
Circular extending the benefit of the teacher
- student ratio of 1:40, which was done only
on 27.1.2005; and obviously, therefore, the
reason that she had been relieved from service
could not have been used against her to deny
the benefit of regularization.
12. That said, however, since the
petitioner did not work for the period in
question, I am certain that she is not
entitled to the monetary benefits for the said
spell, but that her claim for regularization
notionally ought to be considered, so that it
will apply to her retiral benefits and such
other.
In the afore circumstance, I order this
writ petition and set aside Ext.P9;
consequently directing the 4th respondent -
Assistant Educational Officer (AEO), Thrissur,
to reconsider the claim of the petitioner and
decide on her approval for the period from
15.7.2004 to 31.5.2005 notionally, but without
any monetary benefits; which exercise shall be
completed as expeditiously as is possible, but
not later than two months from the date of
receipt of a copy of the judgment.
Needless to say, when the afore exercise
is completed by the AEO, he shall verify
whether the petitioner was entitled to be
given the benefit of the 1:40 teacher -
student ratio, going by the inputs available
in the School at the relevant time and only if
it is so found, she shall be given the
approval as afore indicated.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/11.2.2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF APPOINTMENT AND
APPROVAL THEREOF.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE
SERVICE BOOK OF THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR
NO.1/J2/2005/G.EDN. OF THE GOVERNMENT.
EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER OF
THE ASSISTANT EDUCATIONAL OFFICER.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE GOVERNMENT.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN W.P.(C)
NO.12391/2011-Y.
EXHIBIT P8 TRUE COPY OF THE HEARING NOTE SUBMITTED BY
THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE G.O.(RT)
NO.5348/2011/G.EDN. OF THE GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE ORDER NO.F2/9258/99/K.DIS.
OF THE 2ND RESPONDENT.
