Faby M.S vs Government Of Kerala
2021 Latest Caselaw 14570 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                       WP(C) NO. 33672 OF 2019
PETITIONER:
           FABY M.S,
           THIRUNELVELIKKARAN HOUSE, ORUMA ROAD, KODAKARA P.O.,
           THRISSUR-680 684, LPSA, GOVT.U.P.SCHOOL, PUTHENCHIRA.

          BY ADVS.
          K.T.THOMAS
          SRI.MATHEW B. KURIAN


RESPONDENTS:

    1     GOVERNMENT OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
          EDUCATION DEPARTMENT, SECRETARIAT ANNEXE,
          THIRUVANANTHAPURAM-1.

    2     THE DEPUTY DIRECTOR (EDUCATION),
          OFFICE OF DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION,
          THRISSUR-680 001.

    3     THE ASSISTANT EDUCATIONAL OFFICER,
          CHALAKUDY-680 307, THRISSUR DISTRICT.

    4     THE HEAD MASTER, AUP SHCOOL,
          THESSERRY, KANAKAMALA P.O., THRISSUR DISTRICT, PIN-680
          689.

          BY ADVS.
          GOVERNMENT PLEADER
          SRI.RAJESH VIJAYENDRAN


          SRI. P.M.MANOJ - SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 33672 OF 2019
                                    2



                               JUDGMENT

The petitioner says that she was appointed as a Lower

Primary School Assistant (LPSA) in "AUP School", Thesserry, in

a regular vacancy with effect from 03.10.2006 and that same was

approved by the 3rd respondent - Assistant Educational Officer

(AEO). She says that subsequently, in the year 2016, when the

Staff Fixation Orders of the School for the years 2010-11 to 2015-

16 were issued, it was found that there was a division fall; and

consequently, that one of the posts became redundant.

2. The petitioner admits that she was 7th in the list of

LPSAs; while only six vacancies were found to be eligible and

therefore, that she was retrenched with effect from 24.10.2016,

thus being subsequently deployed to the Government U.P.School,

Puthenchira, where she is presently continuing. She says that she

is aggrieved because, through Ext.P7, the Government has found

that she is not eligible to draw salary for the year 2010-11 and that

she must now refund the same, if she is to be entitled for obtaining WP(C) NO. 33672 OF 2019

any further benefits and allowances.

3. The petitioner alleges that the stand in Ext.P7 is

incongruous and contrary to law because she had admittedly

worked for the entire period from 2010 to 2016 on the strength of

the Staff Fixation Order as applicable at that time; and therefore,

that any recovery from her for the academic year 2010-11 would

be illegal and unconstitutional. The petitioner, therefore, prays

that Ext.P7 be set aside and the competent Authorities be directed

to continue to pay her salary from the year 2017.

4. I have heard Sri.K.T.Thomas - learned counsel for the

petitioner and Sri.P.M.Manoj - the learned Senior Government

Pleader appearing for the official respondents.

5. The learned Senior Government Pleader began his

submissions by relying upon the counter affidavit filed by the 1 st

respondent and showing me that in the year 2010-11, there was a

reduction of post in the School in question and consequently, that

petitioner had to be retrenched to make way for other teacher. He

contented that, therefore, petitioner cannot now turn around and WP(C) NO. 33672 OF 2019

say that she is eligible for salary during that period because,

admittedly, there was reduction of posts in the academic year

2010-11. He, therefore, prayed that this writ petition be

dismissed.

6. The submissions of the learned Senior Government

Pleader at first blush appear to be attractive, but then loses its

sheen because it is also conceded by the Government in Ext.P7, as

well as in the counter affidavit of the 3rd respondent, that the Staff

Fixation Orders for the years 2010-11 until 2015-16 were revised

only in the year 2016. When such a revision was made, it was

found that in the academic year 2010-11, the student strength

justified only retention of six posts and not the seventh one,

against which petitioner had been accommodated. However, the

irony is that petitioner continued to work during the entire period

until 2016, on the basis of a valid Staff Fixation Order, which was

applicable to the school and which continued until 2015-16; and

she was found redundant only when those orders were revised in

the year 2016, more than five years later. It is, therefore, WP(C) NO. 33672 OF 2019

ineluctable that what has been done by the Government and the

Educational Authorities is to retro-act the revised Staff Fixation

Order prepared in the year 2016 and to apply it to the earlier

years, as if during that period, it is the revised order which was in

operation.

7. Needless to say, by doing so, what the Authorities have

tried to do so is to unsettle the situation that has already passed

and to apply a revised order retrospectively, thereby to find that

the petitioner was redundant in the seventh post. It cannot be also

lost to sight that the petitioner in fact worked - which is admitted

- and that she was drawing salary till 2016, when she was found

liable to be retrenched and deployed to the Government

U.P.School.

I am, therefore, of the firm view that Ext.P7 order of the

Government, to the extent to which it finds that petitioner is

liable to be retrenched in the academic year 2010-11

retrospectively and therefore, obligated to repay the salary for

that period, cannot be held to be legally correct and resultantly WP(C) NO. 33672 OF 2019

cannot find my favour.

As a consequence, this writ petition is ordered and Ext.P7,

to the above extent, is set aside; thus directing the competent

Authorities to pay the petitioner the salary from the year 2017,

dehors Ext.P7 and without recovering any salary for the academic

year 2010-11.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/14/07/2021 WP(C) NO. 33672 OF 2019

APPENDIX OF WP(C) 33672/2019

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 31.07.2017 SUBMITTED BY PETITIONER ALONG WITH LIST OF PROTECTED TEACHERS.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 07.10.2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 15.11.2017 ISSUED BY 4TH RESPODNENT.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 23.11.2017 ISSUED BY 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE PETITION DATED 10.01.2018 SUBMITTED BY PETITIONER.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 23.02.2018 IN WPC NO.5801 OF 2018.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29.10.2019 PASSED BY THE 1ST RESPONDENT.

RESPONDENT'S EXHIBITS

EXHIBIT R1(a) THE TRUE COPY OF THE JUDGMENT DATED 10.06.2015 IN W.P(c) NO. 1168/2012.

//TRUE COPY//

P.A. TO JUDGE