Kerala High Court
The Manager ,Cherikkal Junior ... vs State Of Kerala on 6 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 6TH DAY OF JULY 2021/15TH ASHADHA, 1943
W.A NO.426 OF 2021
AGAINST THE JUDGMENT DATED 03.02.2021 IN W.P(C).NO.25622/2020
OF HIGH COURT OF KERALA
APPELLANT/4TH RESPONDENT IN W.P.(C):
THE MANAGER, CHERIKKAL JUNIOR BASIC SCHOOL
PINARAYI, KANNUR DISTRICT, REPRESENTED BY THE POWER OF
ATTORNEY HOLDER, SAFEERA, AGED 45 YEARS,
D/O P.IBRAHIM, RESIDING AT RASHIKA, NAKUTHARA, P.O. MAHE,
NALUTHARA, PUDUCHERRY-673310.
BY ADVS.DR.K.P.PRADEEP
HAREESH M.R.
T.T.BIJU
T.THASMI
M.J.ANOOPA
RESPONDENTS/RESPONDENTS AND WRIT PETITIONER:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT EDUCATIONAL OFFICER
THALASSERY, KANNUR-670101.
3 THE ASSISTANT EDUCATIONAL OFFICER
THALASSERY NORTH, KANNUR-670101.
4 SUBINA P,
KUNNUMMAL HOUSE, P.O. VADAKKUMPAD,
W.A.NOS.426, 418 :: 2 ::
& 457/2021
KANNUR DISTRICT, PIN-670105.
5 SUJISHA P.
AGED 29 YEARS, D/O SURENDRAN P.,
RESIDING AT PADINHARAYIL, PATHIPPALAM,
MOKERI P.O., KANNUR-670692.
BY ADVS.SRI.M.RAMESH CHANDER (SR.)
SMT.SHAMEENA SALAHUDHEEN
SMT.K.A.SANJEETHA
SRI.BONNY BENNY
BY SRI.A.J.VARGHESE, SR. GOVT. PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.07.2021, ALONG WITH W.A.NOS.418/2021 & 457/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.NOS.426, 418 :: 3 ::
& 457/2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 6TH DAY OF JULY 2021/15TH ASHADHA, 1943
W.A NO.418 OF 2021
AGAINST THE JUDGMENT DATED 03.02.2021 IN W.P(C).NO.1143/2021 OF HIGH
COURT OF KERALA
APPELLANT/WRIT PETITIONER:
THE MANAGER CHERIKKAL JUNIOR BASIC SCHOOL,
PINARAYI, KANNUR DISTRICT, REP. BY THE POWER OF ATTORNEY
HOLDER, SAFEERA A, AGED 45 YEARS,
D/O.P.IBRAHIM, RESIDING AT RASHIKA, NALUTHARA, P.O.MAHE,
NALUTHARA, PUDUCHERRY-673 310
BY ADVS.DR.K.P.PRADEEP
SHRI.HAREESH M.R.
SRI.T.T.BIJU
SMT.T.THASMI
SMT.M.J.ANOOPA
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE DISTRICT EDUCATIONAL OFFICER,
THALASSERY, KANNUR-670 101
3 THE ASSISTANT EDUCATIONAL OFFICER,
W.A.NOS.426, 418 :: 4 ::
& 457/2021
THALASSERY NORTH, KANNUR-670 101
4 SUBINA P,
KUNNUMMAL HOUSE, P.O. VADAKKUMPAD-KANNUR DIST.,
670 105.
BY ADVS.SRI.M.RAMESH CHANDER (SR.)
SMT.K.A.SANJEETHA
SRI.BONNY BENNY
BY SRI.A.J.VARGHESE, SR. GOVT. PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.07.2021 ALONG WITH W.A.NOS.426/2021 AND 457/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.NOS.426, 418 :: 5 ::
& 457/2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE GOPINATH P.
TUESDAY, THE 6TH DAY OF JULY 2021/15TH ASHADHA, 1943
W.A NO.457 OF 2021
AGAINST THE JUDGMENT DATED 3.2.2021 IN W.P(C).NO.25622/2020
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SUJISHA P.
AGED 29 YEARS, D/O.SURENDRAN P.,
RESIDING AT PADINHARAYIL, PATHIPPALAM, MOKERI P. O.,
KANNUR - 670692.
BY ADV.SMT.SHAMEENA SALAHUDHEEN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT EDUCATIONAL OFFICER
THALASSERY, KANNUR - 670 101.
3 THE ASSISTANT EDUCATIONAL OFFICER
THALASSERY NORTH, KANNUR - 670 101.
4 THE MANAGER
CHERIKKAL JUNIOR BASIC SCHOOL, PINARAYI,
W.A.NOS.426, 418 :: 6 ::
& 457/2021
KANNUR - 670 104.
5 SUBINA P.
KUNNUMMAL HOUSE, P. O. VADAKKUMPAD,
KANNUR - 670 105.
BY ADVS.SRI.M.RAMESH CHANDER (SR.)
SMT.K.A.SANJEETHA
SRI.BONNY BENNY
BY SRI.A.J.VARGHESE, SR. GOVT. PLEADER
BY ADV.DR.K.P.PRADEEP
BY ADV.SRI.P.P.ABDUL KAREEM
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.07.2021, ALONG WITH WA.426/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.NOS.426, 418 :: 7 ::
& 457/2021
JUDGMENT
A.K. Jayasankaran Nambiar, J.
These appeals, two of which are preferred by the Manager of
the Cherikkal Junior Basic School, Pinarayi, and the third by
Smt.Sujisha P., a teacher, who was appointed in the said School with
effect from 28.6.2019, essentially impugn the common judgment
dated 3.2.2021 of the learned Single Judge in W.P.
(C).Nos.25622/2020 and 1143/2021. The brief facts necessary for
disposal of these Writ Appeals are as follows:
W.P.(C).No.25622/2020 was filed by Smt.Sujisha P.
challenging Ext.P10 order of the Government and seeking
directions to the educational authorities to approve her
appointment as Lower Primary School Teacher [LPST] in a vacancy
that is stated to have arisen in the School on 1.6.2019. In W.P.
(C).No.1143/2021 that was filed by the Manager of the School, the
very same Government Order [Ext.P10] was impugned contending
that the said order, that had the effect of recognizing the
W.A.NOS.426, 418 :: 8 ::
& 457/2021
appointment of the 5th respondent Smt.Subina P. as LPST in the
same School in the retirement vacancy of Smt.Nalini P., could not be
legally sustained inasmuch as appointment of the said teacher
ceased to be valid on the School turning economic with effect from
31.5.2019, and hence, a fresh vacancy arose on 1.6.2019, to which
Smt.Sujisha P. was appointed with effect from 28.6.2019. The
learned Single Judge, who considered the matter, found that there
was no dispute as regards the appointment of the 5 th respondent
Smt.Subina P. as LPST on 3.6.2013, in the retirement vacancy of
Smt.Nalini P., LPST. It was noticed that although the appointment
of Smt. Subina P. was approved by the educational authorities, the
same was done only on daily wage basis in view of the fact that the
School was an uneconomic one. The learned Judge found, however,
that when eventually the School turned economic with effect from
31.5.2019, the appointment of Smt.Subina P. did not automatically
come to an end but it was only an occasion for the educational
authorities to review her appointment to see whether she could now
be extended the regular scale of pay as against the daily wages that
was extended to her till then. The categorical finding of the learned
Judge is that, when the School became economic, the teacher, who
had been appointed against a regular vacancy, would have the right
to regularization on a scale of pay. Inasmuch as the District
W.A.NOS.426, 418 :: 9 ::
& 457/2021
Educational Officer, in Exts.P6 and P9, had taken a contrary view,
by finding that the Manager would get a right to make a fresh
appointment to the above post with effect from 1.6.2019, the
learned Judge found that the impugned Government Order that held
otherwise did not have to be interfered with. The writ petitions
were therefore dismissed in regard to the said point. The learned
Judge also went into the contention raised with regard to the
alleged lack of qualification in the 5 th respondent to be appointed as
LPST with effect from 3.6.2013, in that, she did not have K-TET
qualification, which was apparently required at the time. The
learned Judge, however, found that subsequent Government Orders
had provided for an exemption from obtaining the said qualification
for all teachers who were appointed prior to 31.3.2019, and hence,
the 5th respondent, who had subsequently obtained the qualification,
could also claim the benefit of the said exemption for the past
period.
2. Before us, it is submission of Smt.Shameena Salahudheen,
the learned counsel for the writ petitioner/appellant in
W.A.No.457/2021 and Dr.K.P.Pradeep, the learned counsel for the
Manager/appellant in W.A.No.426/2021 and W.A.No.418/2021 that
the learned Single Judge erred in finding that no vacancy arose in
W.A.NOS.426, 418 :: 10 ::
& 457/2021
the School with effect from 1.6.2019, to which Smt.Sujisha P., the
petitioner in W.P.(C).No.25622/2020 could have been appointed. It
is also contended that the 5th respondent Smt.Subina P. was not
qualified to be appointed as an LPST on the date when the vacancy
first arose with effect from 31.3.2013, and thereafter with effect
from 1.6.2019. In particular, it is contended that, the Circular dated
6.11.2012 of the Government in the General Educational
Department, that deals with the treatment to be accorded to the
service of teachers, who were appointed in uneconomic Schools, as
and when they turn economic, clearly mandates that the Director of
Public Instructions is required to revisit the appointments made
during the period when the School is uneconomic and permit fresh
appointments, to the vacancies aforementioned, after the School
becomes economic. The learned counsel for the appellants also
refers to Chapter XIV (A) Rule 7 of the Kerala Education Rules
[hereinafter referred to as the 'KER'] to contend that the conditional
approval order issued to such teachers cannot be seen as one that
approves a regular appointment.
3. We have heard the learned counsel appearing for the
appellants and the respondents as also the learned Government
Pleader appearing for the State Government in all the Writ Appeals.
W.A.NOS.426, 418 :: 11 ::
& 457/2021
4. On a consideration of the rival submissions, we find
ourselves unable to accept the submission of the learned counsel for
the appellants that, on the School turning economic, the vacancies
of LPST that were filled by the School during the time when it was
uneconomic, would automatically revive for being filled by a fresh
set of teachers on regular scale of pay. In our view, the Government
Circular dated 6.11.2012 only states that when a School is
categorized as uneconomic, vacancies in teaching posts therein can
be filled only on daily wage basis. A distinction has to be drawn
between the nature of the appointment made to a vacancy in a
teaching post in an uneconomic school and the service benefits to
which the appointed teacher is entitled. The Circular does not deal
with the nature of the appointment, which continues to be a regular
one made in accordance with the statutory provisions. Rather, it
only clarifies that during the period when the School is uneconomic,
the teacher, who has been regularly appointed to a vacancy that has
arisen, will be entitled only to payment on daily wage basis, and not
the regular scale of pay. It also clarifies that, as and when the
School turns the corner and becomes economic, those teachers
whose appointments were approved on daily wage basis, would be
entitled to claim the regular scale of pay. We are therefore in
W.A.NOS.426, 418 :: 12 ::
& 457/2021
agreement with the learned Single Judge that, the mere fact that
the appointment of a teacher was approved on daily wage basis in
view of the School being an uneconomic one at the time of
appointment, does not mean that the appointment of the said
teacher was anything other than a regular appointment. The only
implication of the School becoming economic would be on the
entitlement of the teacher concerned to claim the regular scale of
pay as against the daily wages that she was drawing earlier. We are
also not persuaded to accept the submission of the learned counsel
for the appellant, relying on Rule 7 of Chapter XIV (A) of the KER
that the approval of the appointment of the 5 th respondent has to be
seen as anything other than an approval to a regular appointment.
The appointment itself cannot be seen as provisional when the
approval granted to it qualifies only the extent of pay that the
appointee is entitled to receive.
5. Inasmuch as we have affirmed the findings of the learned
Single Judge on this point, for the reasons mentioned in the
judgment of the learned Single Judge, as supplemented by the
reasons in this judgment,we have to necessarily hold that, on the
School turning economic with effect from 31.5.2019, there was no
revival of the vacancy that had earlier arisen on 31.3.2013, in which
W.A.NOS.426, 418 :: 13 ::
& 457/2021
vacancy the 5th respondent Smt.Subina P. had been appointed.
There was therefore no scope for effecting a fresh appointment with
effect from 1.6.2019, or on 28.6.2019, which is when Smt.Sujisha P.,
the appellant in W.A.No.457/2021 was appointed as teacher to the
alleged revived retirement vacancy of Smt.Nalini P. As already
noted, to the retirement vacancy of Smt.Nalini P., it was Smt.Subina
P., the 5th respondent, who was appointed on 3.6.2013, and
resultantly, Smt.Sujisha P. could not have been appointed to the
very same vacancy by treating it as having revived with effect from
1.6.2019.
6. We are also of the view that the issue as regards the
eligibility of the 5th respondent Smt.Subina P. to be appointed as
LPSA with effect from 3.6.2013, does not really arise in the instant
case, since admittedly, her appointment with effect from 3.6.2013
received the approval of the educational authorities, and the said
order has not been impugned in any legal proceedings thereafter.
In any event, we note from the impugned judgment of the learned
Single Judge that the said Smt.Subina P. was also entitled to the
benefit of the exemption offered by the Government with regard to
appointments made before 31.3.2019, and that she had also
acquired the qualification of K-TET in May, 2020.
W.A.NOS.426, 418 :: 14 ::
& 457/2021
In the result, we do not find any reason to interfere with the
impugned judgment of the learned Single Judge, and for the reasons
stated in the said judgment, as supplemented by the reasons in this
judgment, we dismiss the Writ Appeals.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
prp/7/7/21
