Shijina.P vs State Of Kerala
2021 Latest Caselaw 15697 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                       WP(C) NO. 35891 OF 2015
PETITIONER:

           SHIJINA.P., UPPER PRIMARY SCHOOL ASSISTANT,
           MANGATTIDAM U.P. SCHOOL, P O MANGATTIDAM,
           KANNUR - 670643.

           BY ADV SRI.M.VIJAYAKUMAR



RESPONDENTS:

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

    2      ASSISTANT EDUCATIONAL OFFICER,
           KUTHUPARAMBA - 670643.

    3      THE MANAGER,
           MANGATTIDAM U.P. SCHOOL,
           P.O. MANGATTIDAM, KANNUR - 670643.

           BY ADV.SRI. P.M.MANOJ - SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 35891 OF 2015
                                  -2-

                              JUDGMENT

The petitioner says that she was appointed as

an Upper Primary School Assistant (UPSA) in

"Mangattidam U.P. School", Kannur, with effect

from 04.06.2009 - against the vacancy of a teacher

by name Smt.M.V.Prabhavathy, who was shifted as a

Lower Primary School Assistant (LPSA) when another

teacher by name Sri.P.A.Viswanathan retired on

31.03.2009.

2. The petitioner asserts that she is

qualified to be appointed as a UPSA, but that its

approval has been rejected by the educational

Authority saying that, in the higher level

verification, the post in question had not been

sanctioned. The petitioner says that she

thereafter approached the Government to sanction

the additional post who issued Ext.P5 order; but

that the 2nd respondent - Assistant Educational WP(C) NO. 35891 OF 2015

Officer (AEO), is still not approving her

appointment. The petitioner, therefore, prays that

the AEO be directed to comply with Ext.P5 order of

the Government; or that the Government be ordered

to direct the AEO to approve her appointment as

UPSA in the 3rd respondent School from 01.06.2009.

3. I have heard Sri.M.Vijayakumar - learned

counsel for the petitioner, and the learned Senior

Government Pleader - Sri.P.M.Manoj.

4. Sri.P.M.Manoj argued that the assertions

of the petitioner are legally not sustainable

because, the aforementioned Smt.M.V.Prabhavathy

had been shifted as a LPSA in contravention of law

and therefore, that she had approached this Court

to obtain a judgment in W.P.(C)No.34859 of 2015,

wherein, a direction had been issued to continue

her in the post of UPSA from the year 2009-10

onwards. He pointed out that, in the said

judgment, it is also directed that the person who WP(C) NO. 35891 OF 2015

would be rendered excess on account of the

adjustment of Smt.M.V.Prabhavathy as UPSA will be

accommodated only in the next available vacancy.

He added that the petitioner was thus

accommodated in the year 2019 to an available

vacancy in the School and therefore, that none of

the reliefs sought for in this writ petition can

be granted.

5. In reply, Sri.M.Vijayakumar, learned

counsel for the petitioner, submitted that even

though this Court had passed the aforementioned

judgment in W.P.(C)No.34859 of 2015, the fact

remains that his client was continuing in the

School till the year 2016, until the Government

issued GO(RT)No.5079/2015/G.Edn dated 29.10.2015,

allowing the Revision of aforementioned

Smt.M.V.Prabhavathy. He added that, in fact, going

by Ext.P6 Staff Fixation Order for the academic

year 2009-10, 2010-11 and 2014-15, there were WP(C) NO. 35891 OF 2015

sufficient posts to accommodate his client and

that she thus continued until the year 2018, when

she was absorbed into regular service in the year

2019.

6. Sri.M.Vijayakumar asserted that this Court

has clearly recorded in the judgment in W.P.

(C)No.34859 of 2015, that as per the

aforementioned Government Order dated 02.09.2013,

the afore said arrangement had been directed to be

continued; and that it was so until it was set

aside by this Court through the said judgment. He

thus maintained that his client worked until the

year 2018; and thus prayed that she be directed to

be paid salary from the year 2009 to 2018 taking

note of the fact that she actually discharged

duties and that the respondents have extracted it

from her.

7. I have anxiously considered the afore

submissions of Sri.Vijayakumar; but even if I am WP(C) NO. 35891 OF 2015

to find favour with same, the fact remains that

there is no such prayer made by the petitioner in

this case. What the petitioner has sought for is

for a direction that her appointment with effect

from 01.06.2009 be approved, but it is clear that

on account of the judgment of this Court in W.P.

(C)No.34859 of 2015 obtained by

Smt.M.V.Prabhavathy, this cannot be now granted by

this Court.

8. Of course, if the petitioner has worked

from the year 2009 till 2018 and if the Government

had, through its order dated 02.09.2013, permitted

such arrangement, then certainly she can approach

its competent Authority seeking that her salary

for the said period be honored. This prayer, prima

facie, is justified, if the petitioner had

actually worked for the aforementioned period,

because it will be otherwise unfair to hold that,

though work has been extracted from her, she would WP(C) NO. 35891 OF 2015

not get any recompense for it.

Consequently, I am of the opinion that liberty

must be left to the petitioner to approach the

competent Authority of the Education Department

with her above request, so that the matter can be

then conclusively decided by it.

In the afore circumstances, I close this writ

petition; however, leaving full liberty to the

petitioner to make a representation before the

Director of General Education staking claim for

salary during the period between 2009 and 2018;

and if this is done within a period of one month

from the date of receipt of a copy of this

judgment, the same shall be considered by the said

Authority, after affording her, as also the

Manager of the School an opportunity of being

heard.

I, however, make it clear that if

Smt.M.V.Prabhavathy has already been paid salary WP(C) NO. 35891 OF 2015

or has been found entitled for the same in the

post of UPSA from the year 2009-10, then the

petitioner's claim will be considered in the post

of LPSA, though she worked as UPSA, so that the

State will not suffer on account of the confusion

created by the factual circumstances narrated

above.

I further clarify that, though I have not

affirmatively stated that the petitioner is

entitled to salary, it shall be dispassionately

considered by the DGE taking note of her specific

contention that she worked in the School for the

entire nine or ten year period without any

compensation whatsoever.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 35891 OF 2015

APPENDIX OF WP(C) 35891/2015

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DTD 20/7/2009

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATION OFFICER DTD 11/1/2010

EXHIBIT P3 PHOTOSTAT COPY OF THE STAFF FIXATION ORDER ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER

EXHIBIT P4 PHOTOSTAT COPY OF HTE ORDER DTD 2/9/2013

EXHIBIT P5 PHOTOSTAT COPY OF THE ORDER DTD 15/5/2014 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER

EXHIBIT P6 PHOTOSTAT COPY OF THE ORDER DTD 29/8/2014 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE