Anu K.Abraham vs State Of Kerala
2021 Latest Caselaw 14387 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                   WP(C) NO. 28137 OF 2012
PETITIONERS:

    1     ANU K.ABRAHAM
          UPSA, (UPPER PRIMARY SCHOOL ASSISTANT), ST.GEORGE'S
          HIGH SCHOOL, VENNIKULAM, KOKKAPILLY.P.O, DEPLOYED AS
          LOWER PRIMARY SCHOOL ASSISTANT, K.C.L.P.SCHOOL,
          CHITHRAPUZHA.

    2     LINDA PAUL
          UPSA, (UPPER PRIMARY SCHOOL ASSISTANT), ST.GEORGE'S
          HIGH SCHOOL, VENNIKULAM, KOKKAPILLY.P.O, DEPLOYED AS
          LOWER PRIMARY SCHOOL ASSISTANT, M.D.L.P.SCHOOL,
          KARINGACHIRA.

         BY ADVS.
         SRI.K.JAJU BABU
         SRI.BRIJESH MOHAN
         SMT.DHANYA CHANDRAN
         SMT.M.U.VIJAYALAKSHMI



RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
         EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM-695 001.

    2    THE DIRECTOR OF PUBLIC INSTRUCTIONS
         THIRUVANANTHAPURAM-695 014.

    3    THE DISTRICT EDUACTIONAL OFFICER
         ALUVA-683 101.

    4    THE ASSISTANT EDUCATIONAL OFFICER
         TRIPUNITHURA-682 301.

    5    THE CORPORATE MANAGER
         SCHOOLS UNDER THE CORPORATE MANAGEMENT OF ST.GEORGE
         JACOBITE SYRIAN CATHEDRAL, KARINGACHIRA, IRUMPANAM,
         ERNAKULAM-682 309.
 WP(C) NO. 28137 OF 2012             2

    6          SMT.SOUMYA JOB
               LOWER PRIMARY SCHOOL ASSISTANT, M.D.L.P.SCHOOL,
               KARINGACHIRA, DEPLOYED AS UPPER PRIMARY SCHOOL
               ASSISTANT, ST.GEORGE HIGH SCHOOL, VENNIKULAM,
               KOKKAPILLY.P.O, PIN-682 305.

    7          SMT.BINCY ABRAHAM
               LOWER PRIMARY SCHOOL ASSISTANT, M.D.L.P.SCHOOL,
               KARINGACHIRA, DEPLOYED AS UPPER PRIMARY SCHOOL
               ASSISTANT, ST.GEORGE HIGH SCHOOL, VENNIKULAM,
               KOKKAPILLY.P.O, PIN-682 305.

            BY ADVS.
            GOVERNMENT PLEADER
            SRI.K.E.HAMZA
            SRI.V.A.MUHAMMED
            SMT.P.A.JENZIA
            SRI.G.MANU KRISHNAN
            SRI.VARGHESE C.KURIAKOSE


               SRI. P.M.MANOJ - SR.GP




        THIS     WRIT   PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION       ON   13.07.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 28137 OF 2012               3

                               JUDGMENT

The petitioners say that they were appointed

as Upper Primary School Assistants (UPSA) in the

services of "St.George's High School", Vennikulam,

through Exts.P1 and P2 respectively; and that

same were approved by the competent Educational

Authority, which is evident from the endorsements

contained therein. They say that, however,

subsequently, the Manager issued Ext.P5,

accommodating respondents 6 and 7 to the post of

UPSA and consequently reverting them as Lower

Primary School Assistants (LPSA), and that too, on

temporary basis.

2. The petitioners allege that, to make

matters worse, the Manager also issued Ext.P6

proceedings, asking them to refund the amounts

received by them as salary in the post of UPSA.

3. The petitioners assert that Exts.P5 and

P6 are illegal, particularly because they,

concededly, do not hold the qualification of

Teachers Training Course (TTC for short), which is

a mandatory qualification to be accommodated as

LPSA. They say that, therefore, their appointment

as LPSA, consequent to Ext.P5, would never obtain

the approval of the Educational Authorities; but

that without considering any of these aspects,

Government has now issued Ext.P11 order approving

the same. The petitioner, therefore, prays that

Exts.P5, P6 and P11 be set aside and they be

allowed to continue as UPSA in the School in

question.

4. I have heard Shri.Brijesh Mohan, learned

counsel appearing for the petitioners;

Smt.P.A.Jenzia, learned counsel appearing for

respondents 6 and 7 and the learned Senior

Government Pleader, Shri.P.M.Manoj, appearing for

the official respondents. Even though notice from

this Court has been validly served on the 5th

respondent - Manager, he has chosen not to be

present in person or to be represented through

counsel, inferentially guiding me to the

impression that he has nothing to say in

opposition to the contentions of the petitioners.

5. Smt.P.A.Jenzia, learned counsel appearing

for respondents 6 and 7, submitted that her

clients were entitled to be accommodated as UPSA

because they both enjoyed a superior and senior

claim, under Rule 41A, Chapter XIVA of the Kerla

Education Rules (KER for short). She thus asserted

that her clients were entitled to be accommodated

either as LPSA or UPSA and that law permits this

expressly. She, therefore, prayed that this Court

may not pass any orders to the detriment of her

clients in this writ petition.

6. The learned Senior Government Pleader,

Shri.P.M.Manoj justified Ext.P11 order of the

Government, saying that the entire mischief

appears to have been done by the Manager because

he had accommodated the petitioners to the

vacancies to which they were not entitled to be

considered. He added that since respondents 6 and

7 have a superior claim under Rule 41A, Chapter

XIVA of the KER, the Manager ought to have first

accommodated them and only then could he have

appointed the petitioners. He, therefore, prayed

that Ext.P11 be not interdicted.

7. I am afraid that I cannot find favour

with the submissions of the learned Senior

Government Pleader as afore because, as rightly

stated by Shri.Brijesh Mohan, petitioners were

appointed as UPSA with effect from 01/06/2009 and

01/06/2010 respectively and same was also

approved, as is evident from the endorsements

contained in Exts.P1 and P2. Therefore, to now say

that their appointments were incorrect or that

approval was granted in error cannot be

countenanced because it is now well settled in

law, requiring no need for reinstatement, that any

such approval can be cancelled only as per the

mandate of the KER and that too only by the

competent Authority under Rule 8A, Chapter XIVA

thereof. Since this has not been admittedly done,

it is obvious that petitioners continue to be

approved teachers.

8. The next question is whether

accommodation of respondents 6 and 7 was valid.

This issue I do not require to consider - because

that is not an aspect which is directly in

question before this court. However, consequent to

the accommodation of respondents 6 and 7, the

Manager sought to deploy the petitioners as LPSAs

on a temporary basis. This is challenged herein.

9. As submitted by Shri.Brijesh Mohan,

petitioners have not acquired the TTC

qualification. It is conceded before me even by

the learned Senior Government Pleader that without

the TTC qualification, petitioners could not have

been appointed as LPSAs. This makes matters even

worse because the Manager, in spite of this,

tried to deploy them as LPSAs consequent to the

posting of respondents 6 and 7 as UPSAs.

Unfortunately this has been offered favour by the

Government through Ext.P11.

10. I am, therefore, certain that Ext.P11 has

not been issued by the Government noticing the

fact that petitioners could not have been deployed

as LPSAs on account of the fact that they do not

have the necessary qualification.

11. In the afore circumstances, I am of the

opinion that Ext.P11 cannot find the imprimatur of

this Court and that the matter will have to be

reconsidered by the Government, taking note of the

above observations.

Resultantly, this writ petition is ordered and

Ext.P11 is set aside; with a consequential

direction to the Government to rehear the

petitioners, respondents 6 and 7 and the Manager

of the School - either physically or through video

conferencing - and take a fresh decision on the

internecine claims of the parties - particularly

that of the petitioners that they cannot be

deployed as LPSAs - leading to an appropriate

order thereon, as expeditiously a is possible, but

not later than four months from the date of

receipt of a copy of this judgment.

Needless to say, the status quo with respect

to the position of the petitioners as on date

shall be maintained by all the parties until the

afore exercise is completed and the resultant

order communicated to them.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/13.7

APPENDIX OF WP(C) 28137/2012

PETITIONER ANNEXURE

Exhibit P1 COPY OF THE APPOINTMENT ORDER NO. B4-

9878/11/D.DIS. DATED 12/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.

Exhibit P2 COPY OF THE APPOINTMENT ORDER NO.

B4/9881/11/D.DIS. DATED 12/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.

Exhibit P11 THE TRUE COPY OF THE ORDER GO(RT) NO.1316/2014/G.EDN. DATED 17/03/2014.

Exhibit P3 COPY OF THE ORDER DATED 25/06/2012 VIDE NO. GO(RT) NO. 2958/2012/G.EDN. ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 COPY OF THE ORDER NO.

F5/19966/12/DIRECTOR OF PUBLIC INSTRUCTIONS/K.DIS DATED 31/07/2012 ISSUED BY THE 2ND RESPONDENT.

Exhibit P5 COPY OF THE PROCEEDINGS NO.7/2012 DATED 23/08/2012 ISSUED BY THE 5TH RESPONDENT.

Exhibit P6 COPY OF THE PROCEEDINGS NO.75/2012 DATED 24/08/2012 ISSUED BY THE HEADMASTER, ST. GEORGE'S HIGH SCHOOL, VENNIKULAM, TO THE 2ND PETITIONER.

Exhibit P7 COPY OF THE ORDER NO. B4/7273/2012 DATED 14/09/2012 ISSUED BY THE 3RD RESPONDENT.

Exhibit P8 COPY OF THE ORDER NO.

C/2936/2012/K.DIS. DATED 10/10/2012 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER.

Exhibit P9 COPY OF THE ORDER NO. C/2935/2012/K.DIS DATED 10/10/2012 ISSUED BY THE 4TH

RESPONDENT TO THE 2ND PETITIONER.

Exhibit P10 COPY OF THE HEARING NOTICE NO.38901/LE/2013/G.EDN. DATED 18/11/2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P11 THE TRUE COPY OF THE ORDER GO(RT)NO.1316/2014/G.EDN. DATED 17.03.2014.

RESPONDENT'S/S EXHIBITS:

Exhibit R6(A) TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 04/06/2007.

Exhibit R6(B) TRUE COPY OF THE APPOINTMENT ORDER OF SMT. SOUMYA JOB DATED 06/06/2007.

Exhibit R6(C) TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 20/05/2010.

Exhibit R6(D) TRUE COPY OF THE APPOINTMENT ORDER OF SMT. SOUMYA JOB DATED 01/06/2010.

Exhibit R6(E) TRUE COPY OF THE GO(MS) NO.42/2011/G.EDN. OF THE GOVERNMENT DATED 16/02/2011.

Exhibit R6(F) TRUE COPY OF THE APPEAL FILED BEFORE THE DEPUTY DIRECTOR DATED 24/09/2012.