K.Sabitha vs K.Sabitha
2021 Latest Caselaw 5663 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

                THE HONOURABLE MR. JUSTICE GOPINATH P.

    WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                            WA.No.84 OF 2020

 AGAINST THE JUDGMENT DATED 20-08-2019 IN WP(C) 35734/2018(N) OF
                      HIGH COURT OF KERALA

APPELLANT/4TH RESPONDENT:

               K.SABITHA
               AGED 45 YEARS, W/O HRISHEEKESAN,
               UPPER PRIMARY SCHOOL ASSISTANT (UNDER SUSPENSION),
               PILASSERY AIDED UPPER PRIMARY SCHOOL, KUNNAMANGALAM,
               RESIDING AT THUSHARAM,POST PALATH,
               KAKKODI,KOZHIKODE-673611.

               BY ADVS.
               SRI.K.JAJU BABU (SR.)
               SMT.M.U.VIJAYALAKSHMI
               SRI.BRIJESH MOHAN

RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:

      1        THE MANAGER
               AUP SCHOOL, PILASSERY, KUNNAMANGALAM.P.O,
               KOZHIKODE DISTRICT-673571.

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

      3        THE DISTRICT EDUCATIONAL OFFICER,
               THAMARASSERY, KOZHIKODE DISTRICT-673573.

      4        THE ASSISTANT EDUCATIONAL OFFICER,
               KUNNAMANGALAM,KOZHIKODE DISTRICT-673573.

               R1 BY ADV. AD. P.NANDAKUMAR (B/O)
               R2-4 BY GOVT. PLEADER

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2021,
ALONG WITH WA.85/2020, THE COURT ON 17-02-2021 DELIVERED THE
FOLLOWING:
 WA Nos.84 & 85/2020                -2-



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

         THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

    WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                            WA.No.85 OF 2020

 AGAINST THE JUDGMENT DATED 20-08-2019 IN WP(C) 39388/2018(W) OF
                      HIGH COURT OF KERALA


APPELLANT/PETITIONER:

                 K.SABITHA
                 AGED 45 YEARS
                 W/O. HRISHEEKESAN, UPPER PRIMARY SCHOOL
                 ASSISTANT(UNDER SUSPENSION) PILASSERY AIDED UPPER
                 PRIMARY SCHOOL, KUNNAMANGALAM, (RESIDING AT
                 THUSHARAM, POST PALATH, KAKKODI, KOZHIKODE-673611)

                 BY ADVS.
                 SRI.K.JAJU BABU (SR.)
                 SMT.M.U.VIJAYALAKSHMI
                 SRI.BRIJESH MOHAN

RESPONDENTS/RESPONDENTS:

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

        2        THE DIRECTOR OF PUBLIC INSTRUCTION
                 JAGATHY, THIRUVANANTHAPURAM-695014.

        3        THE DEPUTY DIRECTOR OF EDUCATION
                 KOZHIKODE-673020.
 WA Nos.84 & 85/2020                -3-



        4        THE DISTRICT EDUCATIONAL OFFICER,
                 THAMARASSERY, KOZHIKODE DISTRICT-673573.

        5        THE ASSISTANT EDUCATIONAL OFFICER,
                 KUNNAMANGALAM, KOZHIKODE DISTRICT-673573.


        6        THE MANAGER
                 PILASSERY AIDED UPPER PRIMARY SCHOOL,
                 KUNNAMANGALAM-673571, KOZHIKODE DISTRICT.

        7        THE HEADMASTER,
                 PILASSERY AIDED UPPER PRIMARY SCHOOL,
                 KUNNAMANGALAM-673571, KOZHIKODE DISTRICT.

                 R1-5 BY GOVT.PLEADER(B/O)
                 R6 BY ADV. SRI. P.NANDAKUMAR(B/O)
                 R7 BY ADV. SRI. P.NANDAKUMAR.(B/O)

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2021,
ALONG WITH WA.84/2020, THE COURT ON 17-02-2021 DELIVERED THE
FOLLOWING:
 WA Nos.84 & 85/2020                    -4-




                              JUDGMENT

A.K.Jayasankaran Nambiar, J:

As both these writ appeals arise from a common judgment of the

learned Single Judge in W.P (C) Nos.35734/2918 & 39388/2018 they are

taken up together for consideration.

2. Shorn of unnecessary details, we note that the writ appeals are

preferred by one Sabitha who while working as a UPSA, Pilassery Aided

U.P. School was proceeded against in a disciplinary proceedings that

culminated in the Manager of the school passing an order against her,

proposing a punishment of removal from service. When the Manager

approached the Educational authorities for the necessary sanction for

imposing the punishment, the sanction was refused and the District

Educational Officer (DEO) recommended the imposition of a lesser

punishment. While a revision preferred by the Manager challenging the

refusal of sanction by the DEO was rejected by the Government, in a writ

petition filed by the Manager thereafter, impugning the said decision of the

DEO, as also the rejection order of the Government, this court found that it

was not open to the DEO to suggest the imposition of a lesser punishment

and that the limited role of the DEO was either to grant sanction or refuse

the sanction sought by the Manager.

3. Pursuant to the said judgment of this court the Manager once

again considered the issue of punishment and this time around proposed

the imposition of a punishment of compulsory retirement on the teacher.

Thereafter, when sanction was sought from the DEO, he once again refused

sanction and hence the Manager was, once again, before the Government

through a revision petition against the order of the DEO. The Government

also rejected the revision petition and this led the Manager yet again to

approach this court challenging the order of the Government. By Ext.P13

judgment dated 31-01-2018, this court disposed W.P (C) No.33956/2016

preferred by the Manager and also W.P (C) No.39647/2016 filed by the

teacher seeking reinstatement in service by quashing the impugned orders

in the writ petition filed by the Manager, and directing the DEO to pass a

fresh order on the request for sanction sought by the Manager. By an order

dated 13-03-2018 the DEO once again rejected the request of the Manager

for sanction to impose the punishment of compulsory retirement on the

teacher. By the same order the DEO further directed reinstatement of the

teacher. The revision petition filed by the Manager against the said decision

was rejected by the Government by Ext.P15 order dated 17-10-2018. The

Manager therefore once again approached this court by filing W.P (C)

No.35734/2018 seeking to quash the orders of the DEO and the

Government that rejected his request for imposing the punishment on the

teacher and which directed him to reinstate the teacher in question. The

teacher also filed W.P (C) No.39388/2018 seeking reinstatement in service

consequent to the decision of the DEO impugned in the connected writ

petition of the Manager.

4. During the pendency of both the writ petitions there was an

attempt at reconciliation, and pursuant to an agreement arrived at between

the parties, this court found that it would be in the interest of all concerned

to accommodate the teacher as a Cluster Co-ordinator in a BRC on

condition that the Manager shall not fill up the vacancy of UPSA except by

appointing a protected teacher. Consequential directions were therefore

issued to the Deputy Director of Education, Kozhikode to see that the

teacher Smt. Sabitha is accommodated as Cluster Co-ordinator in the

District in a BRC in any nearby station, and a further direction was given to

the Deputy Director of Education to provide a protected teacher for

deployment in the School.

While the said directions in the impugned judgment have since been

complied, as evident from the order dated 24-09-2019 of the Deputy

Director of Education, Kozhikode that is produced before this court today, it

would appear that the immediate provocation for filing the appeal was the

apprehension of the appellant/teacher that her deputation as a BRC Cluster

Co-ordinator would not enable her to receive the salary and allowances

applicable to teachers. While we are at a loss to understand the basis for

such an apprehension by the appellant, we are of the view that consequent

to the directions issued by this court in the impugned judgment, and solely

on account thereof, the appellant cannot be denied the salary and

allowance that is otherwise due to her in her capacity as a teacher in the

school. As regards the further apprehension of the appellant as regards her

entitlement to salary/allowances during the period when she was under

suspension, we are of the view that in as much as the writ petition

preferred by the Manager challenging the orders of the DEO and the

Government, that directed reinstatement of the teacher in service, was

effectively dismissed by this court while forging out the settlement in the

judgment, the disciplinary proceedings initiated against the

appellant/teacher must be seen as having concluded in her favour on

account of the reinstatement as BRC cluster co-ordinator that was directed

by the learned single judge. We therefore deem it appropriate to simply

clarify that the treatment to be accorded to the period of suspension

undergone by the teacher shall be as provided under the Kerala Education

Rules. The Manager as well as the Educational authorities shall pass

consequential orders regularising the period of suspension within an outer

limit of two months from the date of receipt of a copy of this judgment.

(Sd/-) A.K. JAYASANKARAN NAMBIAR JUDGE

(Sd/-) GOPINATH P.

JUDGE AMG