Kerala High Court
Ajithakumari A vs State Of Kerala on 22 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942
WP(C).No.9073 OF 2013(H)
PETITIONER:
AJITHAKUMARI A.
AGED 42 YEARS
LOWER PRIMARY SCHOOL ASSISTANT, LUTHERAN LOWER
PRIMARY SCHOOL, MADATHIKONNAM, VEERANAKAVU (PO),
THIRUVANANTHAPURAM.
BY ADVS.
SRI.M.V.THAMBAN
SRI.B.BIPIN
SRI.R.REJI
SMT.THARA THAMBAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF GENRAL EDUCATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN:695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM, PIN:695 001.
3 THE DISTRICT EDUCATIONAL OFFICER
ALAPPUZHA, PIN:688 001
4 THE CORPORATE MANAGER
LOTHERAN SCHOOL, CLHSS COMPOUND, PEROORKADA,
THIRUVANANTHAPURAM, PIN:695 005
R1 BY GOVERNMENT PLEADER
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.9073 OF 2013 2
JUDGMENT
Dated this the 22nd day of January 2021
The petitioner says that she has been constrained to
approach this Court assailing Ext.P5, because the earlier approval
of her appointment as Upper Primary School Assistant (UPSA) in
the school managed by the fourth respondent - Corporate Manager,
has been now upturned by the said order for no valid reason but
merely saying that a teacher by name Smt. G.S. Sreekala had been
found to be having a superior Rule 51A claim than her.
2. The petitioner says that she had become eligible to
a valid claim under Rule 51A of Chapter XIVA of the Kerala
Education Rules (KER), consequent to her having worked in a leave
vacancy between 24.01.2000 and 28.03.2000; and this has been
approved by the competent Assistant Educational Officer (AEO)
through order dated 22.04.2000. She further says that she became
a Lower Primary School Assistant from 02.06.2004 and that this
was approved, based on Ext.P3 judgment, through Ext.P4 order, by
adjusting her lien from 02.06.2004 to 31.03.2007. She says that
she was, thereafter, reappointed as an Upper Primary School
Teacher at South Aryad School, also managed by the fourth
respondent, with effect from 04.06.2007, against a promotion
vacancy of Smt. Beena Bai, who had been promoted as a High
School Assistant. She says that this appointment was also
approved through order dated 16.07.2009 and therefore, that she
could not have been disturbed, through Ext.P5, as has been done
presently. The petitioner, consequently, prays that Ext.P5 be set
aside.
3. The learned Senior Government Pleader, Shri. P.M.
Manoj, in response to the afore submissions made on behalf of the
petitioner by her learned Counsel - Sri. M.V. Thamban, asserted
that Ext.P5 order has been issued not because the petitioner was
found guilty of any lapses but only because a certain Smt. G.S.
Sreekala, who is not arrayed in this writ petition, was found to
have a better claim under Rule 51A of Chapter XIVA of KER. He
submitted that, therefore, when Smt. Sreekala's approval was
considered by the jurisdictional District Educational Officer (DEO),
namely the fourth respondent, he approached the Government
seeking a clarification on this and that, therefore, through Ext.P5,
the Government informed him that Smt. G.S. Sreekala must be
notionally approved between the period 04.06.2007 and
01.06.2008 without any monetary benefits and that service of the
petitioner herein be treated as a fresh one with effect from
02.06.2008, since her appointment on 04.07.2007 and her
continuation till 01.06.2008 were both improper, but that she has,
nevertheless been given the benefit of salary during the said
period taking a lenient approach, though her service increments,
seniority and pension have been found not eligible. The learned
Senior Government Pleader, therefore, prays that this writ petition
be dismissed.
4. I have considered the afore submissions and have
evaluated the materials available on record very carefully.
5. It is undoubted, even going by the admitted
pleadings, that the petitioner's approval with effect from 4.6.2007
is still undisturbed and that she continues to work in the school on
the strength of the said approval. However, when the matter with
respect to the approval of Smt. G.S. Sreekala reached the DEO, he
found that she has a better claim than the petitioner under Rule
51(A) of the KER, she having worked in an earlier period. However,
instead of the DEO passing orders, he appears to have referred the
matter to the Government seeking certain clarifications and the
Government offered the same to him through Ext. P5.
6. In Ext. P5, the Government has directed the DEO to
grant approval to Smt. G.S. Sreekala from 4.6.2007, however, only
notionally and without the benefit of salary and other emoluments
and Smt. Ajitha Kumari has been directed to be approved, as a
fresh entrant to service, with effect from 2.6.2008. It is also stated
in the said clarification that even though Smt. Ajitha Kumari will be
entitled to the salary during the period from 4.6.2007 to 1.6.2008,
this will not count for her increments and seniority or pension and
therefore, that her salary is to be refixed and the excess amount
paid, if any, recovered.
7. I am afraid, that I cannot find favour with Ext. P5,
since Smt. Ajitha Kumari's position cannot be altered as long as her
approval which was granted on 16.7.2009, has not been modified
or varied by the competent Authority, under the KER, - which is
the Director of General Education. What the Government has done
through Ext. P5 is only to offer a clarification to the DEO, as afore
recorded, but the said officer cannot act upon it to the detriment of
the petitioner, because he is not the competent Authority who can
vary or modify the approval already granted to her.
8. That apart, even going by Ext. P5, Government has
directed that service of Smt. G. S. Sreekala between 4.6.2007 and
1.6.2008, be treated only as notional; and therefore, there can be
no question of any double payment during this period. That said, it
is pertinent that the petitioner has been paid her salary for the
period in question, when she had worked on the basis of valid
approval already granted to her.
9. Obviously, therefore, Ext. P5 cannot be used to the
detriment of the petitioner since, as I have said above, she is still
working on legally sanctioned orders of approval of her
appointment, granted on 16.7.2009.
In the afore circumstances, I allow this writ petition and
set aside Ext. P5 to the extent to which it orders the DEO to act to
the detriment of the petitioner; however, making it clear that
entitlement of Smt. G.S. Sreekala as mentioned therein will remain
intact and she will be entitled to all benefits thereunder.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
SMF/22.01
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 EXHIBIT P1: TRUE COPY OF THE APPOINTMENT
ORDER WITH THE ENDORSEMENT OF APPROVAL
ORDER.
EXHIBIT P2 EXHIBIT P2: TRUE COPY OF THE APPOINTMENT
ORDER DATED 1.6.2004.
EXHIBIT P3 EXHIBIT P3: TRUE COPY OF THE JUDGMENT
DATED 19.2.2009 IN WPC NO.3956/2009 (U).
EXHIBIT P4 EXHIBIT P4: TRUE COPY OF THE
GO(RT)NO.2957/2009/G.EDN DATED 16.7.2009.
EXHIBIT P5 EXHIBIT P5: TRUE COPY OF THE LETTER
NO.29105/H2/12/G.EDN. DATED 7.1.2013.
EXHIBIT P6 EXHIBIT P6: TRUE COPY OF THE
REPRESENTATION BEFORE THE GOVERNMENT ON
22.2.2013.
//TRUE COPY//
PA TO JUDGE
