State Of Kerala vs State Of Kerala
2021 Latest Caselaw 1246 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                               &

             THE HONOURABLE MR. JUSTICE GOPINATH P.

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

                       WA.No.1321 OF 2020

 AGAINST THE INTERIM ORDER DATED 13.02.2020 IN IA NO.2/2019 IN
          WP(C) 24474/2018(H) OF HIGH COURT OF KERALA


APPELLANTS/RESPONDENTS 1-4 IN WPC:

      1      STATE OF KERALA
             REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
             EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM-695 001

      2      THE DIRECTOR OF PUBLIC INSTRUCTIONS,
             THIRUVANANTHAPURAM-695 014

      3      THE DEPUTY DIRECTOR OF EDUCATION,
             KOLLAM-691 001

      4      THE ASSISTANT EDUCATIONAL OFFICER,
             PUNALUR, KOLLAM DISTRICT-691 305

             BY SR.GP SRI. A.J. VARGHESE

RESPONDENTS/PETITIONER & 5TH RESPONDENT IN WPC:

      1      ASHA V.
             LOWER GRADE HINDI TEACHER., EDAMON U.P.SCHOOL,
             EDAMON, PUNALUR VIA, KOLLAM DISTRICT-691 307,
             RESIDING AT MANKOLACKAL VEEDU, EDAMON P.O., PUNALUR
             VIA, KOLLAM-691 307

      2      THE MANAGER,
             EDAMON U.P.SCHOOL, EDAMON, PUNALUR VIA, KOLLAM
             DISTRICT-691 307

             R1 BY ADV. SMT.K.R.KRISHNAKUMARI

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2021,
THE COURT ON 13-01-2021 DELIVERED THE FOLLOWING:
 WA No.1321/2020

                                -:2:-




                         JUDGMENT

Dated this the 13th day of January, 2021

Shaffique, J.

This appeal is filed against the interim order dated

13/2/2020 in IA No.2/2019 in WP(C) No.24474/2018. State and its

officers have preferred this appeal against the aforesaid interim

order by which the learned Single Judge modified its earlier order

dated 20/7/2018 and directed the appellants to pay salary to the

writ petitioner from July 2018 onwards and continue to pay the

same until disposal of the writ petition. It is made clear that

directions issued are subject to orders by the Division Bench in

WA No.2440/2017 and connected cases.

2. The writ petition was filed by the 1 st respondent herein

challenging Ext.P8 order by which she was deployed from the

school in which she was working as Head Teacher to Government

School, Malappuram. Her parent school was Upper Primary

School, Edamon where she was working in the capacity of Lower

Grade Hindi Teacher w.e.f. 15/7/2007. Consequent to finalisation WA No.1321/2020

of staff fixation of the parent school of the petitioner for the year

2015-16, petitioner was rendered surplus and she was included in

the teachers bank. However, she was retained in the parent

school as Head Teacher. While the petitioner was working as Head

Teacher, Government issued GO(P) No.199/2016/G.Edn dated

3/12/2016 by amending the Kerala Education Rules. Since the

petitioner was not qualified to be accommodated against the post

of UPST, Ext.P8 order came to be issued, and in order to

accommodate the petitioner, she was deployed to Government

School at Malappuram.

3. The contention urged by the petitioner is that she

ought to be accommodated in the post of Head Teacher, as

during the academic years 2016-17 and 2017-18, she was

accommodated as Head Teacher. Therefore, she sought for

continuance in the said post. According to her, even during the

academic year 2018-19, a vacancy of Head Teacher is available

and therefore she should be accommodated in the said post. The

Government however contended that since the Head Teacher

post is to be given to UPST and the petitioner does not have the WA No.1321/2020

qualification to be appointed as UPST, she cannot continue in that

position.

4. By an interim order dated 20/7/2018, while admitting

the writ petition, the petitioner sought permission to continue in

the same school at her risk and without any salary and

accordingly, the following interim order had been passed:-

"Notice before admission to the fifth respondent. Learned Government Pleader takes notice for respondents 1 to 4.

The petitioner shall be permitted to continue at her risk without any salary.

Post on 31/7/2018."

5. However, during the pendency of the writ petition, she

filed IA No.2/2019 seeking for modification of the said order and

seeking salary to be paid while she was working in the said

school. Before the learned Single Judge, it was inter alia

contended that the amendment to KER made as per Government

Order dated 3/12/2016 has been interfered by this Court in WA

No. 2425/2017 and connected cases and since there was a

direction to maintain status quo as on 19/12/2017 to the

appointments, approval and deployment of teachers on the basis

of the 2016 amendment to the KER, the petitioner is entitled for WA No.1321/2020

salary in the post of Head Teacher.

6. While impugning the aforesaid interim order, learned

Government Pleader submits that the petitioner was permitted to

work in her parent school at Edamon only on account of the

interim order dated 20/7/2018. But, she cannot work in the

capacity of Head Teacher since she is not qualified. The interim

order in WA No.2425/2017 and connected cases has no

application to the case on hand insofar as the said interim order

does not amount to a stay of 2016 amendment. But the direction

is only to maintain status quo with reference to appointments,

approval and deployment of teachers on the basis of the

amendment. It is pointed out that no appointment had been

made after the interim order based on the amendment nor was

any approval granted and there was no deployment as well. As

far as the petitioner is concerned, the amendment has no effect

at all since she is not a person who is qualified to be appointed as

a Head Teacher. She was given the posting of Head Teacher not

on the basis of the amendment, but on the basis of sanctioning of

such a post in order to accommodate her and therefore, WA No.1321/2020

according to the learned Government Pleader, the order of status

quo cannot enure to the benefit of the petitioner.

7. In Ext.P8 order which is under challenge, orders had

been passed with reference to the academic year 2018-19 by

deploying protected teachers to the other districts temporarily. It

cannot be stated that Ext.P8 order is in violation of the order of

status quo issued in WA No. 2425/2017 and connected cases. The

deployment of the petitioner to another district has not been

made based on the 2016 amendment. An additional affidavit has

been filed by the appellants as IA No.3/2020 producing certain

additional documents. It is contended that Edamon U.P.School,

Punalur is an Upper Primary School. The petitioner was appointed

as a Lower Grade Hindi Teacher and she has no qualification to

teach as an Upper Primary School Teacher. During 2014-15 also,

the school in which the petitioner was working faced reduction of

division. Government therefore deployed the petitioner as BRC

Trainer in Sarva Siksha Abhiyan, Kollam District for a period of

one year as per Annexure A3 and she was working in that

capacity as evident from Annexures A4 and A5. She was WA No.1321/2020

thereafter relieved on 30/6/2016 by the Block Programme Officer.

The Deputy Director of Education by order dated 26/8/2016

issued a direction to the Managers to deploy the excess

protected teachers consequent to the finalisation of staff fixation

orders for the year 2015-16, pursuant to which petitioner was

sent back to her parent school. Further, as per order dated

16/6/2018, she was sent to PMG UPS Punalur as Part Time

Teacher to teach the subject of Hindi for the first three days and

for the remaining two days at GUPS, Maniyatt as Part Time

Teacher. Annexure A9 had been produced to prove the aforesaid

fact. Further to this, she was deployed to Malappuram

Government School. According to the appellants, there was no

vacancy in Kollam district to accommodate the petitioner in the

post of Lower Grade Hindi teacher and it is for her benefit that

she was deployed to Malappuram District. Since she does not

have the requisite qualification to teach as UPST in the Upper

Primary section of the school, she cannot be retained in her

parent school nor she is entitled to receive any salary.

8. The claim of the petitioner is that when a post of Head WA No.1321/2020

Teacher is available in her parent school and she was

accommodated in that school for two years, she should be

permitted to continue as Head Teacher.

9. Of course, if the students exceed 100 in Standards V to

VII, one post of Upper Primary School Teacher (UPST) is to be

sanctioned additionally by exempting the Headmaster from class

charge. Petitioner does not have a case that she is qualified to be

appointed as a Head Teacher. But, the request is to accommodate

her in that school.

10. This is a case in which the petitioner had obtained an

interim order to continue in the school with an offer that she will

work without any salary. This is not a case where the petitioner

was not deployed to any other school. The petitioner was

admittedly deployed to a school at Malappuram. She cannot

claim to continue in the very same school where there was no

post. Therefore, she was working only at her own risk and without

any salary.

11. As far as the pendency of WA No. 2425/2017 and

connected cases are concerned, we are of the view that the WA No.1321/2020

learned Single Judge had proceeded on the basis that the

judgment in the said case may have a bearing in the deployment

of the petitioner. The petitioner lost employment in the parent

school only on account of the staff fixation orders right from

2014-2015. She was working in various other institutions

including the parent school but she cannot claim that she would

work only in the parent school when an alternate deployment had

been offered to her. Learned counsel for the petitioner would

submit that the petitioner was sent for election duty and was also

deputed for the work relating to COVID and therefore, there is

justification to claim salary. We do not want to express any

opinion in that regard. We have only stated that taking into

consideration the factual aspects involved in the matter, when

the petitioner cannot be accommodated as Head Teacher in the

school, she cannot claim salary as she had opted to remain in the

school without salary. She had sought for an interim order in that

fashion when she was deployed to another school where she

would have been entitled to receive salary.

12. In the above circumstances, she cannot claim salary WA No.1321/2020

until a final decision is taken in the matter. Learned Single Judge

was therefore not justified in directing payment of salary to the

petitioner. We therefore set aside the interim order of the learned

Single Judge. The 1st respondent/petitioner shall seek for an early

hearing of the matter to have a finality of the issue involved in

the case.

Writ appeal is disposed of as above.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

Rp                                             JUDGE
 WA No.1321/2020




                         APPENDIX
APPELLANT'S EXHIBITS:



ANNEXURE-A1         TRUE COPY OF LETTER NO.H2/47395/2018
                    DATED 31.08.2018

ANNEXURE-A2         GOVERNMENT CIRCULAR NO.109/J2/18/ G.EDN
                    DATED 14.06.2018

ANNEXURE A3         TRUE COPY OF GO(RT)NO.1043/2015 G.EDN
                    DATED 17.03.2015

ANNEXURE A4         TRUE COPY OF THE RDER

NO.A3/4131/2015/SSA DATED 22.04.2015

ANNEXURE A5 PHOTOCOPY OF THE ORDER NO.SSA2/94/2015 DATED 25.04.2015

ANNEXURE A6 TRUE COPY OF THE ORDER NO.SSA2/273/2016-I DATED 29.06.2016

ANNEXURE A7 TRUE COPY OF THE RELIEVING ORDER

ANNEXURE A8 TRUE COPY OF THE ORDER NO.B1/22345/15(2) DATED 26.08.2016

ANNEXURE A9 TRUE COPY OF THE ORDER NO.B1/12328/2017 DATED 16.06.2018

RESPONDENTS' EXHIBITS:

ANNEXURE R1(a) TRUE COPY OF COVERING LETTER DATED 19.02.2020 WA No.1321/2020

ANNEXURE R1(b) TRUE COPY OF CONTEMPT NOTICE DATED 05.06.2020 CASE (CIVIL)NO.1152/2020(WPCNO.24474/18

ANNEXURE R1(c) TRUE COPY OF THE CASE DETAILS OF COCNO.1152/2020

ANNEXURE R1(d)) TRUE COPY OF THE DAILY STATUS OF CONTEMPT CASE (CIVIL)NO.1152/2020 DATED 25.09.2020

ANNEXURE R1(e) TRUE COPY OF THE DAILY STATUS OF CONTEMPT CASE (CIVIL) NO.1152/2020 DATED 07.10.2020

ANNEXURE R1(f) TRUE COPY OF THE DAILY STATUS OF WPCNO.24474/2018 DATED 13.02.2020

ANNEXURE R1(g) TRUE COPY OF THE DAILY STATUS OF WPC NO.24474/2018 DATED 17.02.2020

ANNEXURE R1(h) TRUE COPY OF JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA DATED 15.10.2020 IN STATE OF MADHYA PRADESH V. BHERULAL IN SLP (C) DIARY NO.9217/2020

ANNEXURE R1(i) TRUE COPY OF THE ORDER DATED 01.08.2020 ISSUED BY THE TAHSILDAR, PUNALUR

ANNEXURE R1(j) TRUE COPY OF THE APPENDIX OF THE STAFF FIXATION ORDER OF UPS, EDAMON FOR THE YEAR 2014-15 ISSUED BY THE 4TH APPLICANT.

ANNEXURE R1(k) TRUE COPY OF GO(P)NO.29/2016/G.EDN.

DATED 29.01.2016 ISSUED BY THE 1ST APPLICANT

ANNEXURE R1(l) TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 12.4.2019 IN TRANSFER PETITION (CIVIL)NO.2191/2018. WA No.1321/2020

ANNEXURE R1(m) TRUE COPY OF THE DAILY STATUS OF THIS HON'BLE COURT DATED 06.06.2019 IN W.A.NO.2440/2017.

ANNEXURE R1(n) TRUE COPY OF THE ORDER OF THE DISTRICT ELECTION OFFICER/DISTRICT COLLECTOR, KOLLAM DATED 06.12.2020

ANNEXURE R1(O) TRUE COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY THE PRESIDING OFFICER True Copy

PS to Judge

Rp