Nasari Cheriyath vs State Of Kerala
2021 Latest Caselaw 4584 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                      WP(C).No.16087 OF 2020(I)

PETITIONER:

               NASARI CHERIYATH, AGED 36 YEARS
               ARABIC TEACHER,
               CHUNDAYAPOYIL MOPLA L.P SCHOOL,
               PONNIYAM, KANNUR 670 641

               BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM

RESPONDENTS:

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

      2        DIRECTOR OF GENERAL EDUCATION,
               JAGATHY, THIRUVANANTHAPURAM 695 014

      3        DEPUTY DIRECTOR OF EDUCATION,
               OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
               KANNUR 670 001

      4        DISTRICT EDUCATIONAL OFFICER,
               THALASSERY, KANNUR 670 101

      5        ASSISTANT EDUCATIONAL OFFICER,
               THALASSERY NORTH, KANNUR 670 101

      6        MANAGER, CHUNDAYAPOYIL MOPLA L.P SCHOOL,
               PONNIYAM, KANNUR 670 641

      7        HEADMASTER, CHUNDAYAPOYIL MOPLA L.P SCHOOL,
               PONNIYAM, KANNUR 670 641

               BY ADVS.
               SRI.R.SURENDRAN
               KUM.S.MAYUKHA
               SR.G.P - SRI. P.M. MANOJ

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 16087/20
                                          2



                                  JUDGMENT

The petitioner is stated to have been

appointed as an Arabic Teacher in

'Chundayapoyil Mopla L.P.School, Ponniyam,

with effect from 03.06.2013 - which school is

managed by the 6th respondent-Manager - in the

vacancy that occurred consequent to the

retirement of the incumbent Arabic Teacher,

Sri.M.K.Mohammmed.

2. The petitioner has produced Ext.P1

appointment letter in substantiation of her

afore assertion, but submits that this

appointment was rejected by the 5th respondent

- Assistant Educational Officer (AEO) for the

reason that since the school is an

'uneconomic' one, such approval cannot be

granted particularly because, there was no

'Teachers Package' in view of the judgment of

this Court in W.P.(C)No.30107/2013.

3. The petitioner submits that though WPC 16087/20

she filed an appeal before the competent

District Educational Officer (DEO), it was

rejected through Ext.P3; and that while her

approval was thus pending consideration before

the Educational Authorities, the AEO issued

Exts.P4 and P5 Staff Fixation Orders for the

years 2014-15 and 2015-16, as per which, a

part-time post and a full-time post in these

two years were sanctioned. She explains that,

as is evident from Ext.P17, since there were

no Staff Fixation Orders for the year 2013-14,

the one that was settled for the year 2010-11

was permitted to be applied to the subsequent

years until 2013-14 and therefore, that it is

following the same that Exts.P4 and P5 were

issued.

4. The petitioner says that, however, it

appears that the Educational Authorities,

thereafter, fixed the staff pattern for the

years 2013-14 and 2014-15 through proceedings WPC 16087/20

dated 15.03.2016 and that this led to Ext.P5

being withdrawn, through Ext.P6 order issued

by the 4th respondent-DEO.

5. The petitioner asserts that it is on

account of issuance of the above Staff

Fixation Orders for the years 2013-14 and

2014-15, as late as on 15.03.2016, that the

controversy in this case arose, because the

Educational Authorities now take the stand

that, as per the Staff Fixation Order for the

year 2012-13 - which has been produced along

with the counter affidavit as Ext.R5(a) - the

part-time post which existed in the school was

abolished for want of adequate number of

Arabic students and that the incumbent,

Sri.M.K.Mohammmed, was continuing in the said

post because he had completed five years of

service, which was allowed until he retired on

30.04.2013.

6. The petitioner says that the effect WPC 16087/20

of the orders relating to Staff Fixation for

the years 2013-14 and 2014-15 was made

retrospectively and that the post in question

was so abolished even though Sri.M.K.Mohammmed

evidently had continued in the said post until

his retirement on 30.04.2013, without any

impediment.

7. The petitioner explains that the

problem caused by these orders is that when

the school became 'economic' in the academic

year 2016-17, with effective strength of 64

and 73 in the next year, namely 2017-18, the

Educational Authorities adopted the position

that, since the post of Arabic Teacher had

been abolished, it can be reinstated only if

there are sufficient number of students in

Standard I - namely a minimum of 10 - as per

the provisions of Rule 2A(1) Chapter XXIII of

the Kerala Education Rules (KER for short).

She says that this has afflicted her with a WPC 16087/20

bolt from the blue, since even though she had

been continuing in the school since 2013, she

has now been denied approval saying that the

post, which is available in the school for

2016-17 and 2017-18, will have to be filled up

by a protected teacher.

8. The petitioner says that, she,

therefore, preferred a Statutory Revision

before the Government which, however, has

culminated in Ext.P13 order, wherein, none of

her contentions have been taken into account

and her approval has been rejected restating

the afore reasons.

9. The petitioner, therefore, prays that

Ext.P13 be set aside and the Government be

directed to restore the post of Part-time

Arabic Teacher in the School from 03.06.2013

to 31.05.2015 and that of a Full-time Teacher

from 01.06.2015 onwards, based on Exts.P4 and

P5 Staff Fixation Orders which were framed and WPC 16087/20

settled legally and validly; and consequently,

that her approval from 03.06.2013, as a Part-

time Arabic Teacher; and from 01.06.2015, as a

Full-time one, in the school be directed to be

issued by the 5th respondent, thus granting

her eligible salary and other benefits.

10. I have heard Sri.P.P.Abdul Kareem -

learned counsel for the petitioner and the

learned Senior Government Pleader -

Sri.P.M.Manoj.

11. Sri.P.P.Abdul Kareem submitted that

his client was working in the school as a

Part-time Arabic Teacher from 03.06.2013 on

the strength of Exts.P4 and P5, because the

Staff Fixation Orders for the previous years

were carried forward until 2013-14. He pointed

out that, as is evident from Ext.P5, for the

academic year 2014-15, a post of Part-time

Arabic Teacher was sanctioned, since the

number of students studying Arabic was 18; and WPC 16087/20

that similarly, in the year 2015-16, there

were 28 students in the school, thus causing

the 5th respondent to sanction a Full-time

post. He adds that his client was actually

taking 16 periods per week in Arabic language

in the school for all these years, but that

these aspects have been completely disregarded

by the Government, for the reason that the

Staff Fixation Orders for the academic years

2012-13 and 2013-14 were revised in the year

2016 - through proceedings dated 15.03.2016,

thus holding that during the year 2012-13,

there were not enough number of students to

justify a part-time post, leading it to be

abolished.

12. The learned counsel for the

petitioner argues that the stand of the

Educational Authorities, that the incumbent to

the post Sri.M.K.Mohammed was allowed to

continue because he had completed 5 years of WPC 16087/20

service, is only an on-paper arrangement and

that he was, in fact, allowed to continue in

the said post until his retirement, on

30.04.2013, on the strength of available Staff

Fixation Order, namely that which was

applicable for the year 2010-11, which was

permitted to be carried forward until 2013-14.

He submitted that all that is sought to be

upturned by the Educational Authorities is by

issuing the Staff Fixation Orders for the

years 2012-13 and 2013-14 in the year 2016 and

thus stating that the post would have to be

construed as having been abolished in the year

2012-13 and therefore, that it did not

continue for the subsequent years.

13. Sri.Abdul Kareem says that, to

exacerbate the problem, the stand taken by the

Educational Authorities is that even after the

school became 'economic' in the year 2016-17,

the post cannot be reinstated because it will WPC 16087/20

have to be treated as a fresh post, since the

mandatory requirement of having at least 10

students in the 1st Standard has not been

achieved by the School, as per the provisions

of Rule 2A(1) Chapter XXIII of the KER. He

says that the impugned orders are, therefore,

without any basis and that it is clear from

the student strength in the school that one

Part-time Teacher post ought to have been

sanctioned for the academic years 2013-14 and

2014-15; while a full-time post ought to have

been sanctioned from 2015-16 onwards because,

the requirement of having 10 students in the

1st Standard would have been necessary - only

if the post had been validly abolished, which

had not been so done.

14. Sri.P.M.Manoj-learned Senior

Government Pleader, in refutation, submitted

that a counter affidavit has been filed on

record, wherein, the true facts have been WPC 16087/20

stated in paragraph 5 thereof.

5. Accordingly, revised staff fixation orders were issued. Staff Fixation Order No.D.Dis/C/1029/2016 dated 15.03.2016 for the academic year 2012-13, Staff Fixation Order No.D.Dis/C/1030/2016 dated 15.03.2016 for the academic year 2013-14 and Staff Fixation Order No.D.Dis/C/1031/2016 dated 15.03.2016 for the academic year 2014-15. By the Staff Fixation Order for the academic year 2012-

13, part time post which was existed in the School was abolished want of required number of Arabic studying pupils and Sri.M.K.Muhammed was continuing in the said post as Full Time Teacher on the basis of completion of 5 years as Part Time Arabic Teacher till his retirement on 30.04.2013. Prior to his retirement due to the abolition of post he was shifted to protected teachers' list and maintaining the School till his retirement on 30.04.2013. that is evident from the Staff Fixation Order for the academic year 2012-

13. A true copy of the Staff Fixation Order No.D.Dis/C/1029/2016 dated 15.03.2016 is produced herewith and marked as Exhibit R5(a). During this period the School was not maintaining the required minimum number of students. It is also evident from the Staff Fixation Order 2013-14, wherein only 17 students are available and 15 students are learning Arabic. As the post Water Authority abolished in the year 2012-13, it requires minimum 10 students to learn Arabic in the first standard as contemplated WPC 16087/20

under Rule 24(1) of Chapter XXIII for the reintroducing the post of Arabic Teacher. The Staff Fixation Order for the academic year 2013-14 shows that only 3 students in Standard I, 2 students in Standard II, 3 students in Standard III and 7 students in Standard IV, thereby a total of 15 students were learning Arabic out of 17 students.

                     Therefore    the    post    was    not
                     sanctioned     even    during     that

academic year. Against that non- sanctioned post the petitioner was appointed as Part Time Arabic Teacher. This is evident from the Staff Fixation Order No.D.Dis/C/1030/2016 dated 15.03.2016. True copy of Staff Fixation Order No.D.Dis/C/1030/2016 dated 15.03.2016 for 2013-14 is produced herewith and marked as Exhibit R5(b).

He submitted that, as is evident from

Exts.R5(a) and R5(c) Staff Fixation Orders,

the school did not have sufficient Arabic

students to justify sanctioning of a part-time

post or a full-time post during the years

2012-13 and 2013-14 and therefore, that the

impugned orders have been issued validly and

for good reason. He added that as the

petitioner herself has admitted that the post

occupied by Sri.M.K.Muhammed had been WPC 16087/20

abolished for the year 2012-13, which is

unmistakable from Ext.P6 (a copy of which is

also on record along with the counter

affidavit of the State as Ext.R5(d)). He,

therefore, prayed that this Writ Petition be

dismissed.

15. When I examine the afore narration of

facts, there can be no doubt that if the Staff

Fixation Order for the year 2010-11 has been

followed, then the controversy in this case

would have never arisen. This is pertinent

because, as is manifest from Ext.P17, the

Staff Fixation Order for the year 2010-11 was

allowed to continue until 2013-14; and

consequently Exts.P4 and P5 Staff Fixation

Orders with specific reference to the academic

years 2014-15 and 2015-16 had also been

issued.

16. However, Ext.P5 Staff Fixation Order

for the year 2015-16 was cancelled through WPC 16087/20

Ext.P6 order, holding that, for the academic

year 2012-13, there were not enough students

studying Arabic to justify a part-time post

and consequently that said post was abolished.

However, importantly Ext.P6 (which is same as

Ext.R5(d)), was issued on 01.03.2017, much

after the petitioner had entered service and

much after Sri.M.K.Muhammed had retired from

service. What is stated in Ext.P6 is that,

since Sri.M.K.Muhammed was entitled to the

benefit of five years continuous service, he

was allowed to continue until he retired and

therefore, that there was no post after it.

17. However, as I have already seen

above, since the Staff Fixation Orders for the

years 2010-11 was allowed to continue until

2013-14, there was no question of abolishment

of the post during those years and

Sri.M.K.Muhammed had, in fact, worked in the

sanctioned post until his retirement. What WPC 16087/20

has been done through Ext.P6 (same as

Ext.R5(d)) is only an exercise on paper

subsequently, where the number of posts were

re-arranged in terms of the student strength

available for the relevant academic years.

18. That said, when Sri.M.K.Muhammed

retired, the petitioner was appointed as a

Part-time Teacher in the school to the vacancy

available at that time, but this was upset by

the Educational Authorities only when the

Staff Fixation orders were revised in the year

2016, when it was maintained that the post,

which was occupied by Sri.M.K.Muhammed, had

been abolished. The resultant corollary

consequence was that when the school become

"economic" in the year 2016-17, the post could

not be re-instated because the provisions of

Rule 2A(1) Chapter XXIII of the KER would come

into play, thus requiring a minimum of ten

students in Class I. This, is not having been WPC 16087/20

satisfied, the request of the petitioner for

approval has been turned down.

19. However, it is unmistakable that,

originally, the petitioner's approval was

turned down through Ext.P2 order not for these

reasons but for the reason that the school had

become "uneconomic" by then. But the fact

that the school was continuing on the same

Staff Fixation Order of the year 2010-11 is

also admitted. A conjoined reading of these

two would show that the petitioner's approval

had been rejected not because of the post had

been abolished for lack of students studying

Arabic, but because the number of students in

the school had come down, thus rendering it

"uneconomic". Even if this is taken to be

true, when the school became "economic" in the

year 2016-17, if the post has not been

abolished, as is now stated by the 5th

respondent in their counter affidavit, its WPC 16087/20

reinstatement would have been easily possible

since the rigor of Rule 2A(1) Chapter XXIII of

the KER could not apply. This Rule has been

pushed into service only because, by a

fiction, the posts had been abolished in the

year 2012-13 and for no other reason.

20. I am, therefore, of the firm view

that the entire matter will be required to be

re-considered by the Government in the

conspectus of the afore facts and

observations, particularly because the

petitioner, concededly, has been working in

the school ever since she had been appointed

as a Part-time Teacher with effect from

03.06.2013, by the 6th respondent Manager.

21. I am constrained to direct the

Government to do as afore, also because none

of the contentions urged by Sri.P.P.Abdul

Kareem has been considered in Ext.P13; and in

the absence of the same, it was not justified WPC 16087/20

or legally correct to reject the petitioner's

request in the manner as has been now done.

Therefore, I order this writ petition,

setting aside Ext.P13; consequently, directing

the competent Authority of the Government to

re-consider the entire matter, including the

request of the petitioner for creation of

part-time post from 03.06.2013 to 31.05.2015

and for a full-time post from 01.06.2015

onwards, on the strength of Exts.P4 and P5

Staff Fixation Orders; and to further consider

her approval from 13.06.2013 as a Part-time

Arabic Teacher and from 01.06.2015 as a Full-

time Arabic Teacher, after affording her and

the Manager of the School an opportunity of

being heard - either physically or through

video conferencing - thus culminating in a

fresh order thereon, as expeditiously as is

possible but not later than three months from

the date of receipt of a copy of this WPC 16087/20

judgment.

I make it clear that since the Staff

Fixation Orders on record, namely Exts.P18 and

P19, admit that a full-time post is available

from the year 2016 onwards, the afore exercise

shall be confined up to that period and the

petitioner will be thus granted approval from

the year 2016 strictly based on the said Staff

Fixation Orders, notwithstanding the nature of

the decision to be taken in terms of these

directions.

Sd/-

                                        DEVAN RAMACHANDRAN
       RR/akv                                  JUDGE
 WPC 16087/20




                           APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1       TRUE COPY OF THE APPOINTMENT ORDER

DATED 3-6-2013 PASSED BY THE 6TH RESPONDENT

EXHIBIT P2 TRUE COPY OF THE ORDER NO. C-

2803/15/K.dis dated 17-06-2015 issued by the 5th respondent.

EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO.

B5/5467/14/K.DIS DATED 11-1-2016 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER NO. DI.DIS/C/2128/2014 DATED 14-07-2014 ISSUED BY THE 5TH RESPONDENT

EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER NO. D.DIS/C/3884/2016 DATED 15-3-2016 ISSUED BY THE 5TH RESPONDENT

EXHIBIT P6 TRUE COPY OF THE ORDER NO. B/8557/ (3) /2016/K.DIS DATED 1-3-2017 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS NO.

B3/25250/16 DATED 3-6-2017 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P8 TRUE COPY OF G.O(RT) NO.

1233/2017/G EDN. DATED 6-5-2017 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 16-

07-2019 IN W.P(C) NO. 19926/2018 OF THIS HON'BLE COURT

EXHIBIT P10 TRUE COPY OF ORDER NO.

RA(3)/26378/2019/DGE/D.DIS DATED 29-10-2019 ISSUED BY THE 2ND RESPONDENT WPC 16087/20

EXHIBIT P11 TRUE COPY OF THE REVISION PETITION DATED 16-11-2019 SUBMITTED BY THE PETITIONER.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 2-

12-2019 IN W.P(C) NO. 32`589/2019 OF THIS HON'BLE COURT.

EXHIBIT P13 TRUE COPY OF THE G.O(RT) NO.

2217/2020/G.EDN DATED 30-06-2020 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P14 TRUE COPY OF THE CLARIFICATION LETTER NO. 54574/11/92/G.EDN DATED 2/09/1992 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P15 TRUE COPY OF THE SAID CLARIFICATION LETTER NO. 49275/12/14/G.EDN DATED 29-08-2014 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P16 TRUE COPY OF THE STAFF FIXATION ORDER NO. D.DIS C-4284/2010 DATED 12-08-220 FOR THE YEAR 2010-11 ISSUED BY THE 5TH RESPONDENT

EXHIBIT P17 TRUE COPY OF THE G.O(P) NO.

213/2015/G.EDN DATED 6-8-2015 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P18 TRUE COPY OF THE STAFF FIXATION ORDER NO. D.DIS/C/8144/2017 DATED 7-12-2017 FOR THE YEAR 2016-17 ISSUED BY THE 5TH RESPONDENT

EXHIBIT P19 TRUE COPY OF THE STAFF FIXATION ORDER NO. D.DIS/C/3956/2017 DATED 12-07-2017 FOR THE YEAR 2017-18 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P20 TRUE COPY OF THE CIRCULAR NO.

13/125/2019/G.EDN DATED 14-08-2019 ISSUED BY THE 1ST RESPONDENT.

WPC 16087/20

RESPONDENT'S/S EXHIBITS:

EXHIBIT R5(A) TRUE COPY OF THE STAFF FIXATION ORDER NO.DIS/C/1029/2016 DATED 15.03.2016

EXHIBIT R5(B) TRUE COPY OF STAFF FIXATION ORDER NO.D.DIS/C/1030/2016 DATED 15.03.2016

EXHIBIT R5(C) TRUE COPY OF STAFF FIXATION ORDER NO.D.DIS/C/1031/2016 DATED 15.03.2016

EXHIBIT R5(D) TRUE COPY OF ORDER NO.B5/8557(3)/2016/K.DIS DATED 01.03.2017

EXHIBIT R5(E) TRUE COPY OF ORDER NO.B3/25250/16 DATED 03.06.2017.