Jalajakumari K.P vs State Of Kerala
2021 Latest Caselaw 1187 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                      WP(C).No.38274 OF 2018(H)


PETITIONER:

               JALAJAKUMARI K.P.,
               KANNAMPARAMBU VEEDU,
               POOTHOTTA P O,
               ERNAKULAM DISTRICT,
               PIN-682307

               BY ADVS.
               SRI.NAVEEN.T
               SMT.K.N.RAJANI
               KUM.CHITHRA CHANDRASEKHARAN
               SRI.V.S.ABHISHEK
               SRI.BIJI A MANIKOTH


RESPONDENTS:

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

      2        THE DISTRICT EDUCATIONAL OFFICER
               OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
               ERNAKULAM - 982 030

      3        THE MANAGER
               K.P.M. VOCATIONAL HIGHER SECONDARY SCHOOL,
               POOTHOTTA, ERNAKULAM-682 307


               R3 BY ADV. SRI.N.N.SUGUNAPALAN (SR.)
               R3 BY ADV. SRI.S.SUJIN
               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 38274/18
                                           2


                                       JUDGMENT

The petitioner, who is stated to have

retired from the services of the KPM

Vocational Higher Secondary School, Ernakulam,

as a Physical Education Teacher, on

31.03.2015, has approached this Court

impugning Ext.P19 order of the Government, as

per which, certain periods when she was on

leave without allowance has been treated only

as 'Non Duty'. She prays that the said order

be set aside and the period in question,

namely between 11.09.1995 to 31.03.2015, be

directed to be construed as duty, to count for

all her pensionary benefits.

2. Sri.T.Naveen - learned counsel for the

petitioner, explains his client's case by

saying that while she was working as a

Teacher, she applied for leave without

allowance on medical grounds on 10.09.1995,

since she was suffering from acute bone WPC 38274/18

disease, for which she also underwent a major

surgery subsequently. He says that although

this request was placed before the Manager, he

did not forward it to the competent

Educational Authority for nearly nine months

and therefore, that the District Educational

Officer (DEO), thereafter, requisitioned the

constitution of a Medical Board to assess her

health condition. He says that, however, no

Medial Board was thereupon constituted and

therefore, that when his client became well

enough to join duty, she applied to be allowed

to do so, but that no decision was taken by

the Manager on this; and on the contrary, he

issued her a charge memo and then terminated

her service on the ground that she was on

unauthorised absence.

3. Sri.T.Naveen says that therefore, his

client filed WP(C)No.26023/2009 and secured

Ext.P18 judgment from this Court, wherein, the WPC 38274/18

disciplinary action against his client was set

aside and it was left to the Government to

take a final decision in her case, since, by

then, she had superannuated. He alleges that,

however, instead of complying with the

directions in the judgment, the Government has

now issued Ext.P19 order whereby, the period

his client had spent on leave without

allowances - from 11.09.1995 to 31.03.2015 -

has been treated as 'Non Duty' without

assigning any cogent or reliable reason for

doing so. He, therefore, prays that Ext.P19 be

set aside to such extent and the other reliefs

sought for in this Writ Petition be granted.

4. In response, Sri.P.M.Manoj - learned

Senior Government Pleader, submitted that

Ext.P19 narrates the factual circumstances

completely and that it is clear therefrom that

the petitioner's case has been considered by

the Government with all the sympathy that it WPC 38274/18

deserves. He submitted that since the

petitioner was on unauthorised absence from

11.09.1995 to 31.03.2015 - her application

never having been considered or approved by

the competent Educational Authority - she

cannot claim any relief against Ext.P19. He,

therefore, prayed that this Writ Petition be

dismissed.

5. I have considered the afore rival

submissions of the parties and have also

examined the materials available on record.

6. The undisputed facts, as revealed by

the pleadings and materials on record, would

show that, though the petitioner says that she

applied for leave as early as in 1995, the

same had not been forwarded by the Manager to

the competent Educational Authorities. This

finally led to the requisition by the 2nd

respondent-DEO to constitute a Medical Board,

but this was also not done. Thereafter, when WPC 38274/18

the petitioner tried to join back, the Manager

stopped her and initiated disciplinary action,

which was interfered by this Court through

Ext.P18 judgment. In the meanwhile, the

petitioner retired from service on 31.03.2015.

7. That being so, in obedience to the

directions of this Court in Ext.P18 judgment,

the Government has now issued Ext.P19,

treating the period when the petitioner was

not in service as being 'Non Duty'; but the

order does not say why this has been done,

particularly when the facts involved as are

above.

8. I am, therefore, of the firm view that

Ext.P19 cannot obtain the imprimatur of this

Court and that the Government must reconsider

the matter, taking note of the afore

circumstances and facts and also after

affording an opportunity of being heard to the

petitioner, as also to the Manager of the WPC 38274/18

School.

In the afore circumstances, I order this

writ petition and set aside Ext.P19 to the

extent to which it orders that the period from

11.09.1995 to 31.03.2015 be treated as non-

duty; with a concomitant direction to the

competent Secretary of the Government of

Kerala to reconsider the claim of the

petitioner, particularly taking note of the

declarations and holdings in Ext.P18 judgment,

as also my observations above and after

affording an opportunity of being heard to the

petitioner as also to the Manager of the

School - either physically or through video-

conferencing - 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.

I make it clear that since I have not gone WPC 38274/18

into the merits of the rival contentions of

the parties, it will be up to the Secretary of

the Government to consider all the aspects,

including those which have been narrated in

this judgment, while arriving at a decision in

terms of the directions above.

Sd/-

                                 DEVAN RAMACHANDRAN
       RR                               JUDGE
 WPC 38274/18



                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1        TRUE COPY OF THE APPLICATION FOR

LEAVE SUBMITTED BY THE PETITIONER ON 11.9.1995 TO THE MANAGER.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 31.7.1996 ISSUED BY THE UNDER SECRETARY TO GOVERNMENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 1.11.1996 SUBMITTED BY THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 30.9.1996 ISSUED FROM GOVT. AYURVEDA COLLEGE HOSPITAL, THRIPPUNITHURA.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 11.12.1997 ISSUED BY THE 2ND RESPONDENT TO THE D.H.S.

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 1.2.2000 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER.

EXHIBIT P7 TRUE COPY OF THE FITNESS CERTIFICATE DATED 2.3.2000 ISSUED FROM THE AYURVEDA COLLEGE HOSPITAL, THRIPPUNITHURA.

EXHIBIT P8 TRUE COPY OF THE MEMO OF CHARGES DATED 6.3.2000 ISSUED BY THE MANAGER TO THE PETITIONER.

EXHIBIT P9 TRUE COPY OF THE REPLY DATED 13.3.2000 SUBMITTED BY THE PETITIONER TO EXT. P8

EXHIBIT P10 TRUE COPY OF THE ORDER, G.O DATED 5.2.2002 ISSUED BY THE GOVERNMENT. WPC 38274/18

EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 29.1.2008 IN O.P. NO. 9229/2000 OF THIS HON'BLE COURT.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 17.6.2008 IN W.A. 1130/2008 OF THIS HON'BLE COURT.

EXHIBIT P13 TRUE COPY OF THE STAFF FIXATION ORDER DATED 18.7.2000 ISSUED BY THE 2ND RESPONDENT FOR THE ACADEMIC YEAR 2000-01

EXHIBIT P14 TRUE COPY OF THE STAFF FIXATION ORDER DATED 29.8.2001 ISSUED BY THE 2ND RESPONDENT FOR THE ACADEMIC YEAR-2001-02

EXHIBIT P15 TRUE COPY OF THE STAFF FIXATION ORDER DATED 31.7.2002 ISSUED BY THE 2ND RESPONDENT FOR THE ACADEMIC YEAR 2002-03

EXHIBIT P16 TRUE COPY OF THE COMMUNICATION DATED 24.8.2009 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE ORDER DATED 265.3.2000 ISSUED BY THE 3RD RESPONDENT MANAGER.

EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 13.12.2016 IN WP(C) NO. 26023/2009 OF THIS HON'BLE COURT.

EXHIBIT P19 TRUE COPY OF THE ORDER, G.O.(RT) NO.

3994/2017/G.EDN. DATED 27.10.2017 ISSUED BY THE GOVERNMENT.

EXHIBIT P20 TRUE COPY OF THE ORDER DATED 12.4.2018 ISSUED BY THE ACCOUNTANT GENERAL SANCTIONING PENSIONARY BENEFITS TO THE PETITIONER.