Sindhu P. Sreedhar vs State Of Kerala
2021 Latest Caselaw 690 Ker

WP(C).No.31623 OF 2019(C)

                                  1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                    WP(C).No.31623 OF 2019(C)


PETITIONER:

               SINDHU P. SREEDHAR
               AGED 46 YEARS
               HSA(HINDI),KARIYELI,KOMBANADU.P.O,
               KURUPPAMPADI, ERNAKULAM-682546, PRESENTLY ON
               DEPLOYMENT AS CLUSTER COORDINATOR BLOCK
               RESOURCE CENTRE,KOTHAMANGALAM.

               BY ADVS.
               SRI.M.A.FAYAZ
               SMT.C.B.ABHINAVA

RESPONDENTS:

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

      2        THE DIRECTOR OF GENERAL EDUCATION,
               JAGATHI,THIRUVANANTHAPURAM-695014.

      3        THE DEPUTY DIRECTOR OF EDUCATION,
               ERNAKULAM-682011.

      4        THE DISTRICT EDUCATIONAL OFFICER,
               KOTHAMANGALAM-686691.

      5        THE MANAGER,
               ST.MARY'S HIGH SCHOOL,KARIYELI,
               KOMBANADU.P.O, KURUPPAMPADI,
               ERNAKULAM-683546.
 WP(C).No.31623 OF 2019(C)

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      6     SMITHA P.MATHEW,
            LOWER GRADE HINDI TEACHER,
            KARIYELI, KOMBANADU.P.O, KURUPPAMPADI,
            ERNAKULAM-683546.

            R1-4 BY GOVERNMENT PLEADER
            R5 BY ADV. SRI.ELVIN PETER P.J.
            R5 BY ADV. SRI.K.R.GANESH
            R5 BY ADV. SRI.P.RAMAKRISHNAN
            R6 BY ADV. SRI.DEEPU THANKAN
            R6 BY ADV. SMT.UMMUL FIDA
            R6 BY ADV. SMT.LAKSHMI SREEDHAR
            R6 BY ADV. SRI.E.JIJOBAL

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25-11-2020, THE COURT ON 08-01-2021 DELIVERED THE FOLLOWING:
 WP(C).No.31623 OF 2019(C)

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                                   JUDGMENT

Dated this the 8th day of January 2021

1. The reliefs in this writ petition are as follows:-

(i) Issue a Writ of Mandamus directing the 3 rd respondent to take immediate steps to redeploy the petitioner as LG (Hindi) Teacher at St.Mary's High School Karlyili, Kombanadu P.O, Ernakulam managed by the 5th respondent forth with.

(ii) To call for the records leading to the issuance of Exts. P4 order of the 1st respondent and set aside the same, to the extent it denies the benefit of pay protection to the petitioner on redeployment as LG (Hindi) Teacher under the 5 th respondent by issuing a Writ in the nature of certiorari.

(iii) To declare that in the light of Exhibits P5 and P6 Government orders petitioner is entitled for pay protection on getting redeployment as LG (Hindi) Teacher under the 5 th respondent, as petitioner is continuing on protection from the date she was found excess.

(iv) To declare that the petitioner who was deployed as Cluster coordinator on protection, if redeployed back to 5 th respondent school as LG (Hindi) Teacher will not amount to reappointment, and therefore will not come under the preview of Ext.P12 Circular No.1237/J1/12/G.Edn dated 18.02.2012, and hence will be entitled for pay protection in the scale of HSA (Hindi)

(v) To direct the 4th respondent not to approve the appointment of the 6th respondent as LG (Hindi) Teacher and also to declare the said appointment of 6th respondent over looking the claim of the petitioner to get redeployment as LG (Hindi) Teacher is illegal.

WP(C).No.31623 OF 2019(C)

(vi) To declare that petitioner is entitled to get redeployment as LG (Hindi) Teacher in 5th respondent's school in the light of Exts. P8, P9 and P10 Judgments and also Ext.P11 order issued by the 3rd respondent in an identical circumstance.

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

Government Pleader as well as the learned counsel appearing for

respondents 5 and 6.

3. The petitioner was appointed as HSA (Hindi) in the St.Mary's High

School managed by the 5th respondent w.e.f 02.06.2004. Pursuant to

staff fixation order dated 06.04.2016, one post of HSA (Hindi)

became excess and the petitioner was deployed as Cluster

Coordinator protecting her pay. The 5th respondent requested the

retention of the petitioner as LG (Hindi) teacher in the same school.

But the said request was turned down by Ext.P3. The matter was

taken in revision and by Ext.P4 order dated 16.11.2017, the request

for retention of Hindi teacher was allowed, but the request of the

petitioner for pay protection was declined.

4. The petitioner filed W.P.(C) No.40907/2017 seeking the following

reliefs:-

i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P6 and quash the same to the extent the petitioner is denied pay protection as WP(C).No.31623 OF 2019(C)

per Ext.P3 on retention as LG (Hindi) teacher under the 4 th respondent.

ii) Declare that Ext.P7 order is not applicable in granting the request of the petitioner as per Ext.P4 and P5 for retention as LG (Hindi) teacher under the 4th respondent from the academic year 2015-16.

iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to implement Ext.P6 with pay protection as HSA (Hindi) now enjoyed by the petitioner.

An interim relief was also sought for as follows:-

For the reasons stated in the writ petition, as well as in the affidavit accompanying thereto, it is humbly prayed that this Hon'ble Court may be pleased to stay the operation and further proceedings pursuant to Ext.P6 enabling the petitioner to continue in the present post, pending disposal of the writ petition.

An interim order was rendered by this Court on 19.12.2017 staying

Ext.P6 pending disposal of the writ petition. On 26.11.2019, the

said writ petition was dismissed as withdrawn. The petitioner now

challenges Ext.P4 order on the ground that the petitioner was

eligible for protection of pay on being retained in the parent school

in the lower post of LG (Hindi) teacher. Exts. P5 and P6

Government Orders are relied on in support of this contention. It is

submitted that, in the meanwhile, the 6 th respondent was appointed

as LG (Hindi) teacher in the school, but the appointment has not

been approved. It is submitted that the petitioner is entitled and WP(C).No.31623 OF 2019(C)

eligible for appointment as LG (Hindi) teacher in the parent school

in preference to the 6th respondent and is also eligible for

protection of pay. It is submitted that Ext.P12 circular dated

18.02.2012, which is relied on in Ext.P4 has no application in the

petitioner's case since the petitioner was not retrenched and was

only deployed under orders of protection.

5. The 1st respondent has filed a counter affidavit. It is stated that

Rule 52(1) of Chapter XIVA KER, which provides that teachers, who

are relieved on account of any reduction in the numbers of posts,

shall, on re-appointment, start on the same pay as they were

getting at the time of relief, whether the new appointment is

permanent or not is intended for granting protection of pay on re-

appointment in the same post and the same scale of pay. It is stated

that since the petitioner is a teacher, who had lost her post due to

staff fixation, she would also be a retrenched teacher and on

appointment to lower post in the same school would only be eligible

for the scale of pay of the said post. It is submitted that this is the

purport of the circular dated 18.02.2012 and the contentions of the

petitioner to the contrary are completely untenable. WP(C).No.31623 OF 2019(C)

6. A reply affidavit has been placed on record by the petitioner stating

that the petitioner was granted pay protection when she was

deployed as Cluster Coordinator and that the same benefit is to be

extended when she is reappointed as LG(Hindi) teacher as well. It is

submitted that the circular dated 18.02.2012 only applies to

retrenched teachers and the petitioner, who was under orders of

protection is not a retrenched teacher. A judgment of this Court in

W.A. No.2508/2019 is also relied on to contend that a protected

teacher, who was working as HSA, would also be eligible for being

recalled to the school when a vacancy arises in the lower post.

7. The 5th respondent has placed a counter affidavit on record. It is

submitted that though the petitioner had been redeployed to the

same school by Ext.P4 order as L.G.(Hindi) teacher, the petitioner

had approached this Court and obtained a stay, which is the reason

why post of LG (Hindi) teacher available in the school had to be

filled up by appointing the 6th respondent.

8. The 6th respondent has also placed a detailed counter affidavit on

record. Reply affidavits are placed by the petitioner to the counter

affidavit filed by the 5th respondent as well. WP(C).No.31623 OF 2019(C)

9. The issue to be considered in this writ petition is with regard to the

eligibility of the petitioner for protection of pay on being appointed

as L.G Hindi Teacher. Rule 52(1) of Chapter XIVA KER reads as

follows:

(1) Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not.

It is trite law, that a protected teacher is also a teacher, who had

approved service, but whose services have been terminated for

want of vacancy or want of post in a staff fixation. When such

termination of vacancy occurs, the Junior most teacher is rendered

surplus and is liable to lose her employment. It is as a measure of

protection to such teachers that the Government thought it fit to

issue orders providing for protection to teachers and non-teaching

staff. The first Government Order on the subject dated 06.03.1969

had ordered that qualified teachers appointed in regular division

vacancies and who have two or more years of continued service as

on the date of retrenchment are to be retained on affording them

protection. It is, therefore, clear that protection is the benefit made

available for teachers, who face retrenchment due to division fall or

loss of their post. Rule 52(1) specifically provides for pay protection WP(C).No.31623 OF 2019(C)

when a teacher is retained or call back to the same school

apparently in the same post. The petitioner seeks to rely on Exts.P5

and P6 Government orders dated 14.02.2003 and 28.06.2002. The

said Government orders from a reading of the same are apparently

time bound orders. Ext.P13 produced by the petitioner is the

Circular dated 18.02.2012. Referring to Rule 52(1) of Chapter XIV

A, KER it is specifically clarified that the Rule is intended for

granting pay protection to retrenched teachers on re-appointment

in the same cadre and the same scale of pay. It appears that the

necessity for a clarification arose due to the amendment made to

Rule 51A of Chapter XIVA, KER. Retrenched teachers had a right

for appointment only against the same category of posts till the

amendment in the year 2005. Therefore the prescription in Rule 52

(1) with regard to pay protection would also be applicable only in

respect of same post and the same scale of pay. However, after the

amendment to Rule 51A, it became possible for a teacher to aspire

for appointments in the same or higher or lower category of

teaching posts, provided the teacher is qualified for the same.

10.In the above circumstances, the Government Order issued before

the amendment to Rule 51A would not be relevant in as much as

the issue of appointment of retrenched teachers in lower or higher WP(C).No.31623 OF 2019(C)

post would arise only after the said amendment. It is in the above

factual situation that the Circular dated 08.02.2012 must be

viewed. Viewed at from that perspective, it is clear that the purport

of Rule 52 (1) has now been explained and limited as granting pay

protection only to retrenched teachers being re-called to the same

school in the same post. The petitioner, who was a retrenched HSA,

could therefore have no claim for protection of pay in the post of

HSA, if she chose to accept the appointment as L.G.Hindi teacher.

In the above view of the matter, the reasoning in Ext.P4

Government order cannot be faulted.

11.The petitioner did not join duty as Lower Grade Hindi Teacher on

the basis of Ext.P4. Instead, a writ petition was filed claiming pay

protection and an interim order of stay of the impugned

Government Order was specifically sought for and obtained. The

said interim order was rendered on 19.12.2017. It is thereafter that

the 6th respondent was appointed as LG (Hindi) Teacher in the

school. In the above factual situation, I am of the opinion that the

challenge made by the petitioner against the appointment of the 6 th

respondent as LG Hindi Teacher is also not sustainable. WP(C).No.31623 OF 2019(C)

The writ petition, therefore, fails and the same is accordingly

dismissed. However, it is made clear that the petitioner will have a

claim for appointment against any further vacancy in the school to

which she is qualified.

Sd/-

Anu Sivaraman, Judge

sj/svp WP(C).No.31623 OF 2019(C)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT W.E.F.02.06.2004,CONTAINING THE ENDORESMENT OF THE APPROVAL BY THE 4TH RESPONDENT.

EXHIBIT P2 PHOTOCOPY OF THE STAFF FIXATION ORDER ISSUED IN RESPECT OF SMHS KARIYELI DATED 06.04.2016.

EXHIBIT P3           PHOTOCOPY OF ORDER
                     NO.B4/8913/2016/DD(E)/K.DIS DATED
                     20.07.2016 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P4           PHOTOCOPY OF THE GOVERNMENT ORDER
                     NO.G.O(RT)NO.4401/2017/G.EDN DATED
                     16.11.2017.

EXHIBIT P5           TRUE COPY OF THE G.O(P)NO.41/2003/G.EDN
                     DATED 14.02.2003.

EXHIBIT P6           PHOTOCOPY OF THE G.O(P)NO.178/2002/G.EDN
                     DATED 28.06.2002.

EXHIBIT P7           PHOTOCOPY OF THE INTERIM ORDER IN
                     W.P(C)NO.40907/2017 DATED 19.12.2017.

EXHIBIT P8           PHOTOCOPY OF THE JUDGMENT IN
                     W.P(c)NO.40907/2017 DATED 19.12.2017.

EXHIBIT P9           PHOTOCOPY OF THE JUDGMENT W.A.NO.2165/2019
                     & W.A.NO.2183 DATED 29.10.2019.

EXHIBIT P10          PHOTOCOPY OF THE JUDGMENT IN
                     W.A.NO.2229/2019 DATED 31.10.2019.

EXHIBIT P11          PHOTOCOPY OF ORDER NO.B5/16132/2019 DATED
                     09.10.2019 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P12          PHOTOCOPY OF CIRCULAR NO.1237/J1/12/G.EDN
                     DATED 18.02.2012.

EXHIBIT P13          PHOTOCOPY OF THE CIRCULAR
                     NO.1237/J1/12/G.EDN DATED 18/2/2012
 WP(C).No.31623 OF 2019(C)



EXHIBIT P14          PHOTOCOPY OF THE JUDGMENT IN WA
                     NO.2508/2019 DATED 18/12/2019

EXHIBIT P15          PHOTOCOPY OF ADVERTISEMENT ISSUED TO THE
                     5TH RESPONDENT APPEARING IN MALAYALA
                     MANORAMA NEWS PAPER DATED 29.8.2016

EXHIBIT P16          PHOTOCOPY OF OBJECTION SUBMITTED BY THE

PETITIONER BEFORE THE 5TH RESPONDENT DATED 12.9.2016

EXHIBIT P17 PHOTOCOPY OF ORDER NO A1-218/16/SSA(6) DATED 1.9.2016 IS ISSUED BY THE DISTRICT PROJECT OFFICER SSA ERNAKULAM

RESPONDENT'S EXHIBITS:

EXHIBIT R5 A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER NO-D.DIS./B4/1023/2016 DATED 6.4.2016 PERTAINING TO THE ACADEMIC YEAR 2012-2013 OF THE 5TH RESPONDENT SCHOOL.

EXHIBIT R6 A TRUE COPY OF THE ORDER OF THE DEO, KOTHAMANGALAM ON 28.10.2017

EXHIBIT R6 B TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE OFFICE OF THE 3RD RESPONDENT DATED 14.2.2019

EXHIBIT R6 C TRUE COPY OF THE REVISION MEMORANDUM BY THE MANAGER DATED 14.11.2019 BEFORE THE GOVT.

True copy

PS to Judge