Merin Ann Koshy vs State Of Kerala
2021 Latest Caselaw 5182 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                       WP(C).No.22038 OF 2020(D)


PETITIONER:

               MERIN ANN KOSHY
               AGED 34 YEARS, LOWER PRIMARY SCHOOL ASSISTANT,
               AMM TTI AND UP SCHOOL MARAMON,
               PATHANAMTHITTA - 689549.

               BY ADVS.
               SRI.M.A.FAYAZ
               SMT.M.VISHNUPRIYA
               SMT.C.B.ABHINAVA

RESPONDENTS:

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

      2        DIRECTOR OF GENERAL EDUCATION
               JAGATHY, THIRUVANANTHAPURAM - 695001.

      3        DEPUTY DIRECTOR OF EDUCATION
               PATHANAMTHITTA - 689111

      4        THE DISTRICT EDUCATIONAL OFFICER,
               OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
               THIRUVALLA, PATHANAMTHITTA DISTRICT - 689101.

      5        THE MANAGER
               AMM TTI AND U.P SCHOOL, MARAMON,
               PATHANAMTHITTA - 689549.

      6        HEAD MASTER,
               AMM TTI AND U.P SCHOOL, MARAMON,
               PATHANAMTHITTA - 689549.

               R5 BY ADV. SRI.S.SUBHASH CHAND
               T. RAJASEKLHARAN NAIR, SR GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.02.2021, ALONG WITH WP(C).33415/2019(B), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).Nos.22038 OF 2020 & 33415 OF 2019

                                    2


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                      WP(C).No.33415 OF 2019(B)

PETITIONER:
               MERIN ANN KOSHY
               AGED 32 YEARS,
               LOWER PRIMARY SCHOOL ASSISTANT, AMM TTI AND U.P.
               SCHOOL, MARAMON, PATHANAMTHITTA-689 549.
               BY ADVS.
               SRI.M.A.FAYAZ
               SMT.M.VISHNUPRIYA
               SMT.C.B.ABHINAVA

RESPONDENTS:
       1       STATE OF KERALA
               REPRESENTED BY SECRETARY TO THE GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695 001.
       2       DIRECTOR OF GENERAL EDUCATION
               JAGATHY, THIRUVANANTHAPURAM-695 001.
       3       DEPUTY DIRECTOR OF EDUCATION
               PATHANAMTHITTA-689 111.
       4       THE DISTRICT EDUCATIONAL OFFICER
               OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
               THIRUVALLA, PATHANAMTHITTA DISTRICT-689 101.
       5       THE MANAGER
               AMM TTI AND U.P. SCHOOL, MARAMON,
               PATHANAMTHITTA-689 549.
       6       HEADMASTER
               AMM TTI AND U.P. SCHOOL, MARAMON,
               PATHANAMTHITTA-689 549.
               R1-4 BY GOVERNMENT PLEADER
               R5 BY ADV. SRI.S.SUBHASH CHAND

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.02.2021, ALONG WITH WP(C).22038/2020(D), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).Nos.22038 OF 2020 & 33415 OF 2019

                                     3




                              JUDGMENT

[ WP(C).22038/2020, WP(C).33415/2019 ]

Dated this the 12th day of February 2021

These writ petitions are filed seeking directions to the

respondents to consider approval of the petitioner's appointment in a

leave vacancy from 21.10.2018 and in a regular vacancy from

01.07.2019. It is submitted by the learned counsel for the petitioner

that by virtue of Ext.P9 judgment in W.P.(C).No.22038 of 2020, the

issue with regard to approval of appointment of the petitioner in a

leave vacancy from 21.10.2018 and in a regular vacancy from

01.07.2019 had already been directed to be considered by the

Government and the DGE respectively.

2. It is submitted that the Government had heard the parties, but

no final orders had been issued. In the meanwhile, Ext.P10 order was

passed by the AEO declining approval and suggesting an alternate

arrangement, which the AEO was not empowered to pass in view of

the findings of this Court on the issue of interchangeability of posts of

LPSA and UPSA and the fact that the entire issue was being considered WP(C).Nos.22038 OF 2020 & 33415 OF 2019

by the Government.

3. Detailed statements have been placed on record in both the writ

petitions. I have heard the learned counsel appearing for the Manager

as well.

4. It is submitted by the learned counsel for the Manager that the

Manager does not stand in the way of the approval of the appointment

of the petitioner in the leave vacancy or in the regular vacancy and

that the objections were only with regard to the dates on which the

petitioner had been appointed. In any view of the matter, it is

submitted that the petitioner, being a teacher who had approved

appointment in a leave vacancy from 2013 to 20.10.2018 and since she

has been continuing in service in the school from 21.10.2018 onwards

without salary, the issue can be directed to be resolved by the

Government at the earliest.

5. The learned Government Pleader submits that it was only due to

technical reasons that the petitioner's appointment in the leave

vacancy was not approved and that the entire issue has to be

considered by the Government in accordance with law. WP(C).Nos.22038 OF 2020 & 33415 OF 2019

6. Having considered the contentions advanced on all sides, I am of

the opinion that Ext.P10 order passed by the DEO in W.P.(C).No.22038

of 2020 is unwarranted in the facts of the case. The issue with regard

to the petitioner's appointment and approval as LPSA is liable to be

considered, taking note of her qualifications and eligibility and the

question of adjusting UPSAs in the school does not arise for

consideration in the petitioner's case. It is also an admitted case that

there was a leave vacancy of LPSA available from 21.10.2018 and a

regular vacancy had arisen in 2019.

7. In the above view of the matter, the alternative arrangements

suggested in Ext.P10 and the refusal to approve the appointment of

the petitioner on those grounds are unjustified. Ext.P10 in W.P.(C).

No.22038 of 2020 is therefore set aside. There will be a direction to the

Government to consider the entire issue with regard to approval of

the petitioner's appointment in a leave vacancy from 21.10.2018 and

in a regular vacancy from 01.07.2019 afresh with notice to the

petitioner as well as the Manager. In the peculiar facts and

circumstances of the case where there is no contentions raised as to

the qualifications or the eligibility of the petitioner for appointment WP(C).Nos.22038 OF 2020 & 33415 OF 2019

as LPSA, there will be a direction to the respondents to provisionally

pay the salary due to the petitioner prospectively subject to the orders

to be passed by the Government. The prospective salary shall be paid

from the month of February, 2021 onwards. The issue of approval and

grant of salary from 21.10.2018 to the petitioner shall be considered by

the Government and appropriate orders shall be passed after hearing

the parties, by any appropriate means, including through video

conferencing, within a period of two months from the date of receipt

of a copy of this judgment. Arrears of salary found due to the

petitioner shall be released within a period of two months thereafter.

These writ petitions are ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C).Nos.22038 OF 2020 & 33415 OF 2019

APPENDIX OF WP(C) 22038/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTO COPY OF THE PETITIONER'S APPOINTMENT ORDER DATED 21.10.2013 CONTAINING THE ENDORSEMENT OF APPROVAL BY THE 4TH RESPONDENT.

EXHIBIT P2 PHOTOCOPY OF THE JUDGMENT IN WPC NO.4211/2017 DATED 20.02.2017.

EXHIBIT P3 PHOTOCOPY OF PROCEEDINGS NO.001/2018 DATED 14.06.2018 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P4 PHOTOCOPY OF THE JUDGMENT IN WP(C) NO.

20560/2018 DATED 12.10.2018.

EXHIBIT P5              PHOTOCOPY OF THE PROCEEDINGS NO.006/2018
                        DATED 10.01.2019 ISSUED BY THE 5TH
                        RESPONDENT MANAGER,

EXHIBIT P6              PHOTOCOPY OF THE ORDER

NO.B1/2662/2019/K.DIS DATED 01.07.2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P7 PHOTOCOPY OF PROCEEDINGS ISSUED BY THE MANAGER SHIFTING THE PETITIONER TO THE RETIREMENT VACANCY OF SMT. JOLLY NINAN DATED 21.10.2019.

EXHIBIT P8 PHOTOCOPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 18.02.2020.

EXHIBIT P9 PHOTOCOPY OF THE JUDGMENT IN WP(C) NO.

17777/2020 DATED 24.09.2020.

EXHIBIT P10 PHOTOCOPY OF ORDER NO. B1/17746/2019 DATED 08.10.2020.

EXHIBIT P11 PHOTOCOPY OF THE CIRCULAR NO.

443034/J1/2013/G.EDN DATED 03.06.2017.

RESPONDENT'S/S EXHIBITS: NIL WP(C).Nos.22038 OF 2020 & 33415 OF 2019

APPENDIX OF WP(C) 33415/2019 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE PETITIONERS APPOINTMENT ORDER DATED 21.10.2013 CONTAINING THE ENDORSEMENT OF APPROVAL BY THE 4TH RESPONDENT.

EXHIBIT P2 PHOTOCOPY OF THE JUDGMENT IN WPC NO.4211/2017 DATED 20.2.2017.

EXHIBIT P3 PHOTOCOPY OF PROCEEDING NO.001/2018 DATED 14.6.2018 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P4 PHOTOCOPY OF THE COPY OF THE JUDGMENT IN WPC NO.20560/2018 DATED 12.10.2018.

EXHIBIT P5 PHOTOCOPY OF THE ORDER IN CCC NO.172/2019 DATED 14.2.2019.

EXHIBIT P6 PHOTOCOPY OF THE 1ST RESPONDENTS CIRCULAR NO.443034/J1/2013/G.EDN DATED 3.6.2017.

EXHIBIT P7 PHOTOCOPY OF THE PROCEEDINGS NO.006/2018 DATED 10.1.2019 ISSUED BY THE 5TH RESPONDENT MANAGER.

EXHIBIT P8 PHOTOCOPY OF ORDER NO.B1/2662/2019/K.DIS DATED 1.7.2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P9 PHOTOCOPY OF THE APPEAL SUBMITTED BY THE 5TH RESPONDENT MANAGER AGAINST EXT.P8 ORDER 22.7.2019.

EXHIBIT P10 PHOTOCOPY OF THE PROCEEDINGS ISSUED BY THE MANAGER SHIFTING THE PETITIONER TO THE VACANCY OF SMT. JOLLY NINAN DATED 21.10.2019.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R5(a) TRUE COPY OF THE ORDER DATED 18.02.2020 ISSUED BY RESPONDENT NO.2

EXHIBIT R5(b) TRUE COPY OF THE REVISION PETITION DATED 15.07.2020 SUBMITTED BEFORE RESPONDENT NO.1