K.Bensy vs The State Of Kerala
2021 Latest Caselaw 1620 Ker

W.P.(C).No.38114/2018
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                        WP(C).No.38114 OF 2018(L)


PETITIONER:

                K.BENSY
                AGED 45 YEARS
                WIFE OF JOHN VARGHESE
                UPPER PRIMARY SCHOOL ASSISTANT ST.JOHNS UP
                SCHOOL
                P.O ULANADU PANDALAM PATHANAMTHITTA DISTRICT
                689503

                BY ADVS.
                SRI.V.A.MUHAMMED
                SRI.V.RAJASEKHARAN NAIR

RESPONDENTS:

        1       THE STATE OF KERALA
                REPRESENTED BY ITS SECRETARY TO GOVERNMENT
                GENERAL EDUCATIONAL DEPARTMENT SECRETARIAT
                ANNEXE-II THIRUVANANTHAPURAM-695001

        2       THE DIRECTOR OF PUBLIC INSTRUCTION,
                JAGATHY, THIRUVANANTHAPURAM 695 014

        3       THE DEPUTY DIRECTOR OF EDUCATION,
                PATHANAMTHITTA AT TIRUVALLA 689 101

        4       THE DISTRICT EDUCATIONAL OFFICER,
                TIRUVALLA, PATHANAMTHITTA DISTRICT 689 101

        5       THE ASSISTANT EDUCATIONAL OFFICER,
                ARANMULA, PATHANAMTHITTA DISTRICT 689 101
 W.P.(C).No.38114/2018
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        6       THE MANAGER,
                CATHOLIC AND M D SCHOOLS, DEVALOKAM, KOTTAYAM
                DISTRICT 686 038

                R1-5 BY GOVERNMENT PLEADER
                R6 BY ADV. SRI.ROSHEN.D.ALEXANDER
                R6 BY ADV. SMT.TINA ALEX THOMAS

OTHER PRESENT:

                SR GP P.M. MANOJ

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-12-2020, THE COURT ON 15-01-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.38114/2018
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                                      JUDGMENT

Dated this the 15th day of January 2021

1.This writ petition is filed seeking the following reliefs:

"i) call for the records relating to Exhibit P-2 and P-4 and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order,

ii) call for the records relating to Exhibit P-7 and P-14 orders and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order to the extent it limits the approval of appointment of the petitioner from 17.10.2012 to 31.03.2013 and from 02.06.2013 to 31.03.2014 on daily wages and decline the approval from 01.06.2014 onwards in view of the decision in Sneha Cheriyan's case and NSS case.

iii) declare that the appointment of the Petitioner from 17.10.2012 onwards is approvable on regular basis in view of Exhibit P-6, P-8 , P-9 and P-16 orders.

iv) issue a writ of mandamus or other appropriate writ, order or direction commanding the 5th respondent to approve the appointment of the petitioner from 17.10.2012 onwards on regular basis or in the alternate;

v) issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to approve the appointment of the petitioner from 17.10.2012 to 31.05.2016 on daily wages and from 01.06.2016 onwards on regular basis in view of Exhibits P-8, P-9, P-10, P-11 and P-16 orders exempting the petitioner from upper age limit as ordered in Exhibit P-12 order."

W.P.(C).No.38114/2018

2. Heard the the learned counsel for the petitioner and the

learned Government Pleader as well as the learned counsel for

the 6th respondent.

3. Petitioner was appointed as UPSA from 17.10.2012 to

11.06.2014 as against a long vacancy of Smt. Jessy Kuriakose

who was granted LWA under Appendix XII-C from 06.06.2012

to 11.06.2014. But approval to this appointment was declined

by the Assistant Educational Officer vide his order dated

13.02.2013 on the ground that "the School is uneconomic, the

vacancy is not established and the appointment in an

uneconomic School exceeding one year should be filled up by

protected teachers as per Circular No. 4545/07/J2/G.Edn.

dated 18.05.2007". It is respectfully submitted that the

Petitioner was re-appointed from 12.06.2014 onwards against

the termination vacancy of the same teacher as she has not

joined duty after leave on 12.06.2014. The reappointment from

12.06.2014 was also rejected by the Assistant Educational

Officer on the same grounds as per order dated 13.08.2014.

She is continuing as such. The contention of the petitioner is W.P.(C).No.38114/2018

that her appointments from 17.10.2012 to 31.05.2016 on daily

wages and from 01.06.2016 onwards on regular basis are

liable to be approved in view of Exhibits P-8, P-9, P-10, P-11

and P-16 orders exempting the petitioner from upper age limit

as ordered in Exhibit P-12 order. This aspect has not been

considered by the respondents.

4. The learned counsel for the petitioner submits that the finding

that the school was uneconomic and that the regular

appointment could, therefore, not be approved is totally

erroneous. It is submitted that there were 57 students in the

school in the year 2010-11, 53 students in 2011-12 and 48

students in 2012-13. It is submitted that after the staff

fixation was conducted for the year 2010-11, the exercise of

staff fixation was put on hold by G.O.(P) No.199/2011/G.Edn

dated 1.10.2011 and that staff fixation was thereafter

conducted in all aided schools in Kerala only in April 2016.

The staff fixation for the year 2010-11 was made applicable to

all subsequent years till 2016-17. Several Government orders

and orders of the Director General of Education have been W.P.(C).No.38114/2018

placed before me by the learned counsel for the petitioner,

wherein the Government and Director General of Educational

have accepted the fact that the student strength and the staff

fixation for the year 2010-11 is to be taken into account for

filling up vacancies for the subsequent years also and if the

posts are available going by the staff fixation for the year

2010-11, then appointments made are liable to be approved. A

judgment of this Court in W.P.(C) No.37644/17 dated 24.5.2019

is also relied on to contend that the staff strength of 2010-11

is liable to be taken into account and vacancies arising in

subsequent year could also be filled up based on the staff

fixation for 2010-11. A judgment of this Court dated 12.2.2019

in W.P.(C) No.39880/16 is also relied on. The petitioner has

also produced Exts.P19 and P20 to contend that when

appointment is once approved on daily wages, the upper age

limit for regular appointment would stand waived.

5. A counter affidavit has been placed on record by the 1 st

respondent. The contention therein are mainly as follows:

"3. It is submitted that the Government vide Ext. P6 order dated 27.02.2016 has directed the 24 respondent to review and approve W.P.(C).No.38114/2018

the appointment of the Petitioner on the basis of G.O (P) No.29/16/G.Edn dated 29.01.16, if there is an established vacancy to accommodate her. The Petitioner was heard by the 2 nd respondent on 12.07.2017. The termination of service of Smt. Jessy Kuriakose w.e.f 12.06.14 by the 6 th respondent has been approved by the 4th respondent as per the Order No. B2/869/2017 K.Dis dated 22.02.2017. Hence the 2 nd respondent has directed to the 5th respondent to approve the appointment of the petitioner from 17.10.2012 to 31.03.2013 and from 02.06.2013 to 31.03.2014 on daily wages even though there is a permanent vacancy w.e.f 12.06.14, the school is uneconomic from 2012-13 onwards. The strength of the school from 2012-13, 2013- 14, 2014-15 and 2015-16 is 48, 32, 27, 32 respectively on the basis of the Judgment of the High Court and G.O (P) No. 29/2016/G.Edn dated 29.01.2016. The 2nd respondent examined the school staff fixation order and reported that the school is uneconomic and the vacancies need be filled by daily wages basis. As the petitioner become over aged during 2014-15 appointment cannot be considered from 2014-15.

4. It is submitted that as per the directions of the 2 nd respondent, the 5th respondent has directed the 6th respondent to submit the appointment papers from 17.10.12 to 31.03.2013 and from 02.06.13 to 31.03.2014, for approval on daily wages. But the 6 th respondent in his letter dated 03.01.18 has informed the 5th respondent that he could not submit separate appointment order from 17.10.12 to 31.03.13 and from 02.06.13 to 31.03.14. The 6 th respondent stated that the petitioner was appointed as Upper Primary School Teacher against long leave vacancy on 17.10.2012 W.P.(C).No.38114/2018

and from 12.06.2014 onwards against a termination vacancy The 6th respondent again submitted the appointment proposal from 17.10.2012 to 11.06.2014 on scale of pay basis which is against the Government orders. "

6. The 5th respondent has also filed a counter affidavit taking

similar contentions.

7. Having considered the contentions and the arguments

advanced on both sides, I find that it is an admitted fact that

the staff fixation for the year 2010-11 is liable to hold the field

till 2016-17. In the year 2010-11, there were 57 students in

the school. By G.O P No.199/2011 G.Edn dated 1.10.2011 the

Government ordered that the staff fixation for the year 2010-

11 will continue for the subsequent year. By circular

No.31904/J2/12/G.Edn. dated 6.6.2012 it was further directed

that the staff fixation for 2010-11 would be applicable to 2012-

13 also. It was clarified that Managers could fill up vacancies

arising due to retirement, promotion, death and resignation on

a regular basis if qualified hands are available. The situation

continued till 2016-17.

W.P.(C).No.38114/2018

8. In 2010-11 there were 57 students in the school. It was only

in 2013-14 that the strength fell below 45 students. The non

availability of students in the year 2013-14 is the reason for

refusing to approve the regular appointment on a scale of pay

basis. This Court in its judgment in W.P.(C) No.37644/17 has

held that appointments made between 2010-11 and 2016 are

liable to be approved based on the student strength existing in

2010-11. Several orders have also been issued by the

Government giving the benefit to similarly situated teachers.

9. In the above situation, I am of the opinion that the refusal to

grant the benefit of appointment on a regular scale of pay to

the petitioner is totally unjustified. Exhibit P14 order is set

aside to the extent of rejecting the petitioner's claim for

approval on regular scale of pay. The exemption granted from

upper age limit and the approval on daily wages will be

sustained. There will be a direction to the Government to

reconsider the issue based on the judgment in W.P.(C)

No.37644/17 and the Government Orders relied on by the

petitioner. The petitioner shall be permitted to draw daily W.P.(C).No.38114/2018

wages on the strength of the approval granted to her till

orders are issued by the Government on the question of grant

of approval on regular scale of pay. Orders shall be passed

after hearing the petitioner and the Manager by any

appropriate means, including video conferencing, within two

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

The monetary benefits shall be calculated and disbursed to the

petitioner within a period of three months thereafter.

Sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.38114/2018

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDEER OF THE PETITIONER DATED 17-10-2012

EXHIBIT P2 TRUE COPY OF THE LETTER NO. B/3076/2012 DATED 13-02-2013 OF THE 5TH RESPONDENT

EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONEER DATED 12-06-2014

EXHIBIT P4 TRUE COPY OF THE LETTER NO. B/1731/2014 OF THE 5TH RESPONDENT DATED 13-08-2014

EXHIBIT P5 TRUE COPY OF THE ORDER NO.

B2/869/2017/K./DIS. DATED 22-02-2017 OF THE 4TH RESPONDENT

EXHIBIT P6 TRUE COPY OF THE G.O(RT) NO.

823/2016G.EDN DATED 27-02-2016 OF THE GOVERNMENT.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.

F3/89832/2015/DPI/K.DIS DATED 02-11-

2017 OF THE 2ND RESPONDENT

EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.

59604/J2/12/G.EDN. DATED 06-11-2012 OF THE GOVERNMENT

EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.

631703/J2/16/G.EDN. DATED 01-08-2016 OF THE GOVERNMENT

EXHIBIT P10 TRUE COPY OF THE SIXTH WORKING DAY REPORT

EXHIBIT P11 TRUE COPY OF THE ORDER NO.

K.DIS.B/1658/2017 DATED 07-07-2017 OF THE 5TH RESPONDENT W.P.(C).No.38114/2018

EXHIBIT P12 TRUE COPY OF THE G.O(RT) NO.

3442/2017/G.EDN DATED 28-09-2017 OF THE GOVERNMENT

EXHIBIT P13 TRUE COPY OF THE REVISION PETITION SUBMITTED BEFORE THE GOVERNMENT DATED 20-11-2017

EXHIBIT P14 TRUE COPY OF THE G.O(RT.) NO.

4326/2018/G.EDN DATED 23-10-2018 OF THE GOVERNMENT

EXHIBIT P15 TRUE COPY OF THE LETTER NO. 60930/J2/11 G.EDN DATED 23-10-2018 OF THE GOVERNMENT

EXHIBIT P16 TRUE COPY OF THE LETTER NO. 60930/J2/11 G.EDN. DATED 25-10-2011 OF THE GOVERNMENT

EXHIBIT P17 TRUE COPY OF THE LETTER NO.

44977/J2/2013/G.EDN DATED 14-10-2015 OF THE GOVERNMENT

EXHIBIT P18 TRUE COPY OF THE G.O(RT) NO.

1361/2016/G.EDN DATED 08-04-2016 OF THE GOVERNMENT

EXHIBIT P19 TRUE COPY OF THE LETTER NO. A1/22/2018-

GEDN DATED 14-02-2018 OF THE GOVERNMENT.

True copy

PS to Judge