Neethi O.T vs State Of Kerala
2021 Latest Caselaw 877 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                       WP(C).No.26240 OF 2020(D)


PETITIONER:

               NEETHI O.T.
               AGED 41 YEARS
               W/O. V.R.SUDHEERKUMAR, PART TIME HINDI TEACHER WITH
               FULL TIME BENEFIT, VANI VILASAM UP SCHOOL,
               CHOVVA P.O., KANNUR DISTRICT, PIN-670 006
               RESIDING AT SARAYU, MACHERY, MOWANCHERY P.O.,
               KANNUR DISTRICT, PIN-670 613.

               BY ADV. SRI.MURALI PALLATH

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVT., GENERAL
               EDUCATION DEPARTMENT, GOVT. SECRETARIAT, (ANNEX II),
               THIRUVANANTHAPURAM, PIN-695 001.

      2        THE DIRECTOR OF GENERAL EDUCATION
               JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               KANNUR, THANA P.O., KANNUR DISTRICT, PIN-670 002.

      4        THE ASSISTANT EDUCATIONAL OFFICER
               KANNUR NORTH, KANNUR DISTRICT, PIN-670 101.

      5        THE MANAGER
               VANI VILASAMUP SCHOOL, CHOVVA P.O.,
               KANNUR DISTRICT, PIN-670 006.

      6        THE HEADMISTRESS
               VANI VILASAM U.P. SCHOOL, CHOVVA P.O.,
               KANNUR DISTRICT, PIN-670 006.

               SR. GP-SMT.NISHA BOSE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.26240 OF 2020

                                          2




                                  JUDGMENT

This writ petition is filed seeking the following prayers:

"(i) a writ of certiorari calling for records leading to Ext.P3, Ext.P4, Ext.P6 and set aside Ext.P3 and Ext.P4 to the extent to which they say that the petitioner is not eligible for full time benefit during 2019-20 and set aside Ext.P6

(ii) Orders declaring that the petitioner is entitled for full time benefit for the year 2019-20 also.

(iii) Orders declaring that no recovery is permissible from the petitioner on refixation of pay while granting the full time benefit w.e.f. 01.06.2003 on revision cancelling the full time benefit already granted w.e.f. 21.11.2002.

(iv) Orders declaring the petitioner is eligible for reoption for 2004 pay revision, 2009 pay revision and higher grade also while refixing her pay with retrospective effect.

(v) Orders directing the 4th and 6th respondents to disburse salary due to the petitioner from July, 2019 onwards."

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

Government Pleader.

3. It is submitted by the learned counsel for the petitioner that the

petitioner was appointed as Part Time Hindi Teacher on 01.06.1998 WP(C).No.26240 OF 2020

and that she had been granted full time benefit with effect from

22.01.2002 on completion of 5 years of service. It is submitted that

when one post of UPSA stood abolished in the year 2019-20, the

disbursal of salary to the petitioner was sought to be discontinued.

Ext.P5 order was passed on 19.08.2020 by the DPI directing that since

the petitioner had been granted full time benefit from 22.01.2002, her

status as a full time teacher should be continued on clubbing

arrangement. It is submitted that thereafter, Ext.P6 order was passed

by the 4th respondent stating that the benefit can be granted only

after the school reopen.

4. The learned counsel for the petitioner further submits that on

approaching the Government and on the basis of interim orders

passed, the petitioner had been getting her salary till December, 2020.

It is submitted that even if it is found that the prior broken service is

not liable to be counted, no recovery is liable to be effected against

the petitioner in view of the fact that the petitioner is only a primary

school teacher and had no role in the alleged mistake and in the light

of the decision of the Apex Court in State of Punjab and Others v.

Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334]. WP(C).No.26240 OF 2020

5. The learned Government Pleader submits that Ext.P5 direction

of the DPI will be implemented as soon as the school reopen. With

regard to the refixation of the pay, it is submitted that the petitioner

can approach the Government and the issue will be considered, taking

note of the binding decisions of the Apex Court as well.

6. Having considered the contentions advanced on either side, I am

of the opinion that the question with regard to the grant of the full

time benefit to the petitioner and the refixation of pay are liable to be

considered by the Government, taking note of the principles

enunciated by the Apex Court in Rafiq Masih (White Washer)'s case

(cited supra).

7. In the above view of the matter, in case the petitioner

approaches the 1st respondent with an appropriate representation, the

same shall be considered, taking note of the directions of the Apex

Court as well. The directions contained in Ext.P5 shall also be

considered and appropriate action shall be taken in accordance with

law. The steps for refixation of pay shall be kept in abeyance until the

Government considers the representation to be preferred by the

petitioner. It is further made clear that the petitioner shall be WP(C).No.26240 OF 2020

continued to be paid salary as has been done pursuant to the interim

order of this Court dated 27.11.2020 till an appropriate decision is

taken by the Government in this regard. Appropriate orders shall be

passed by the Government after hearing the petitioner as well as the

Manager through any appropriate means including by video

conferencing within a period of three months from the date of receipt

of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C).No.26240 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER DATED 1.6.1998 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P2 A TRUE COPY OF ORDER NO.K.DIS./F/7219/02 DATED 22.1.2003 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF ORDER NO.K.DIS.F/53090/2019 DATED 30.7.2019.

EXHIBIT P4 TRUE COPY OF ORDER NO.B2/60051/2019 DATED 2.10.2019.

EXHIBIT P5 TRUE COPY OF LETTER DATED 19.8.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COY OF LETTER NO.F/2162/2020 DATED 16.10.2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF LETTER NO.F/3723/19 DATED 4.2.2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF GO(P) NO.62/73/S.EDN. DATED 02.5.1973.

EXHIBIT P9 TRUE COPY OF GO(MS)NO.189/82/G.EDN. DATED 14.12.1982.

EXHIBIT P10 TRUE COPY OF GO(MS) NO.11/87/G.EDN. DATED 7.1.1987.

EXHIBIT P11 TRUE COPY OF RELEVANT PAGES OF G.O(P) NO.145/2006/FIN. DATED 25.3.2006 (PAY REVISION ORDER).

RESPONDENT'S/S EXHIBITS: NIL