Kerala High Court
N.V.Prajith vs The State Of Kerala Represented By ... on 8 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942
WP(C).No.14507 OF 2011(K)
PETITIONER:
N.V.PRAJITH, AGED 29 YEARS,
S/O.K.A.DAMODARAN, SANSKRIT TEACHER (FULL TIME),,
RADHAVILASAM UP SCHOOL, PALLIKKUNNU P.O.,, KANNUR
DISTRICT.
BY ADV. SRI.V.A.MUHAMMED
RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL, EDUCATION
(E) DEPARTMENT, GOVERNMENT SECRETARIAT, ANNEX,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE ASSISTANT EDUCATIONAL OFFICER
PAPPINISSERI, P.O.PAPPINISSERI-670561,, KANNUR
DISTRICT.
4 THE MANAGER RADHAVILASAM U.P.SCHOOL
P.O.PALLIKKUNNU, KANNUR DISTRICT-670004.
SMT.P.A.JENZIA
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.14507 OF 2011(K)
2
JUDGMENT
Dated this the 8th day of March 2021
The petitioner says that he was appointed as a Sanskrit
Teacher in the services of the "Radhavilasam UP School",
Pallikkunnu, as is evident from Ext.P1; but alleges that even
though the said post was a Full time one, he was appointed
only as a Part time teacher, because the competent Assistant
Educational Officer (AEO) took the stand that the post of Full
time Sanskrit teacher in the school had been reduced as a Part
time one as per the staff fixation order 2008-09.
2. The petitioner says that this is illegal because, going
by the staff fixation order of the year 1998-99 - a copy of
which has been produced as Ext.P7(4) - the said post of
Sanskrit teacher had been made full time by diverting three
periods from the subject of physical education.
3. The petitioner asserts that it is now well settled,
including through Ext.P13 judgment of this Court, that once a
post had been granted the benefit of Full time, through
diversion of Group C subjects, it cannot be construed as a part
time thereafter. He, therefore, prays that Ext.P11 be set aside
WP(C).No.14507 OF 2011(K)
and the competent Educational Authority be directed to
approve his appointment as a Full time teacher with effect
from the date on which she was initially appointed through
Ext.P1.
4. In response to the submissions of Smt.Jenzia, the
learned counsel for the petitioner, the learned Senior
Government Pleader - Sri.P.M.Manoj, submitted that a counter
affidavit has been filed on behalf of the first respondent
wherein it has been explained as under:
"The Manager, Radhavilasam U.P.School,
Pallikkunnu appointed the petitioner as Part Time
Sanskrit teacher with effect from 02.06.2008 in the
scale of 5250-8390 and the appointment was
approved. This appointment was made against the
part time Sanskrit post available in the school during
2008-09 consequent to the retirement of
Smt.M.Remabai Sanskrit teacher who continued in
the part time post with full time benefit in terms of
G.O.(P)No.62/73/G.Edn. dated 02.05.73.
The staff fixation orders issued by the 3 rd
respondent for the last 10 years show that
Smt.M.Remabai was enjoying full time benefit as per
G.O.(M.S)62/73/G.Edn. Dated 02.05.1973.
Though the Manager issued proceedings
rectifying the first appointment, the same was not got
approved by the 3rd respondent.
The existing post of LG Sanskrit in the school
was not sanctioned as full time by clarify this term.
Hence the post was not allowed to make full time
through group C diversion.
The existing post of LG Sanskrit in the school
was not sanctioned as full time by Group C diversion
hence the condition laid down in G.O.(MS)
WP(C).No.14507 OF 2011(K)
No.371/2000/G.Edn. dated 13.11.2000 is not
applicable in this particular case.
In the case of Smt.K.Shobhana, fulltime Sanskrit
post was sanctioned by diverting 3 periods from
Group C subject as per Government direction vide the
letter No.37097/E2/06/G.Edn. dated 13.11.2008. In
the case of Smt.Deepa Korambath, at Varam
U.P.School, which comes under the Assistant
Educational Officer, Kannur North, the post was
converted to full time vide G.O.
(Rt.)No.1199/2011/G.Edn. Dated 24.03.2011 as a
result of the Hon'ble High Court judgment dated
14.06.2010 in W.P.(C) No.18350/2010 filed by
Smt.Deepa Korambath, Counter the allegation that
petition is similarly situated teacher with reasons, if
any.
Smt.M.Remabai was enjoying full time benefit as
per G.O.(Ms) No.62/73/G.Edn. dated 02.05.1973.
Hence Government vide letter
No.72481/E2/2010/G.Edn. dated 18.02.2011 rejected
the revision petition holding the reason that the post
in which the petitioner was accommodated was not
created by way of Group C diversion.
Existing full time post Sanskrit (by virtue of
Group C diversion) cannot be converted as part time
after the retirement of the Sanskrit Teacher. But in
this particular case the retired teacher was enjoying
fulltime benefit as per G.O.(Ms) No.62/73/G.Edn.
dated 02.05.1973 and the post in which the petitioner
was accommodated was not created by Group C
diversion."
5. The learned Senior Government Pleader proceeded to
contend that since the post in question had never been
converted as a Full time post, but the incumbent in service
had only been granted the benefit of full time on account of
her having completed five years, the Educational Authorities
WP(C).No.14507 OF 2011(K)
were justified in rejecting the petitioner's request that he be
approved as Full time teacher with effect from the date of
Ext.P1 appointment order. He, therefore, prayed that this writ
petition be dismissed.
6. However, to a pointed question from this Court,
Sri.P.M.Manoj conceded that had the post been granted the
status of a Full Time one, then it could not have been
converted as a Part time, merely because the incumbent in
service had retired. He, however, asserted that as long as the
post continued to be a part time one, the incumbent having
been given the benefit of Full time on account of having
completed five years, the petitioner cannot be heard to claim
the same benefit.
7. Even when I hear the learned Senior Government
Pleader, the fact remains that, as is evident from Ext.P7(4),
that if the post in question had been converted as a Full time
one through Group C diversion as early as in the year 1998-99
then even as per the case of the official respondents, it could
not thereafter been converted as part time one. Therefore,
the real question is whether the post had been converted as
Full time one, as is asserted by the petitioner in the year 1998-
WP(C).No.14507 OF 2011(K)
99, or whether the incumbent in service - Smt.Remabhai, had
been given the benefit of Full time teacher solely because she
had completed five years in service. This being a question of
fact, is not one that would be capable of being resolved by this
Court affirmatively at the first instance.
8. I am, therefore, certainly of the view that the
Government must first decide whether the post in question
had been converted as a Full time post in the year 1998-99, as
is asserted by the petitioner relying on Ext.P7(4); or whether
the incumbent in service - Smt.Remabhai had only been given
such benefit solely when she completed five years in service.
9. In the afore circumstances, I set aside Ext.P11; with a
consequential direction to the Government to reconsider the
matter adverting to Ext.P7(4) staff fixation order of the year
1998-99, as also to the ratio of this Court in Ext.P13 judgment,
which shall be done after affording an opportunity of being
heard to the petitioner and to the Manager of the school -
either physically or through video conferencing - within a
period of three months from the date of receipt of a copy of
this judgment.
10. I make it clear that if, after the afore enquiry, the
WP(C).No.14507 OF 2011(K)
Government finds that the post in question had been
converted as a Full time post as early as in the year 1998-99,
as asserted by the petitioner, then all consequential benefits,
including approval of the petitioner from the date of Ext.P1
appointment order, shall be issued without any avoidable
delay thereafter.
This writ petition is thus ordered.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE
WP(C).No.14507 OF 2011(K)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER 1981-82.
EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER 1982-83.
EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER 1985-86.
EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER 1986-87.
EXHIBIT P6 TRUE COPY OF THE STAFF FIXATION ORDER 1987-88.
EXHIBIT P7 TRUE COPY OF THE STAFF FIXATION ORDER 1998-99
EXHIBIT P7(A) TRUE COPY OF THE PROCEEDINGS OF THE MANAGER.
EXHIBIT P7(B) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE
PETITIONER.
EXHIBIT P8 TRUE COPY OF THE TIME TABLE OF THE SCHOOL.
EXHIBIT P9 TRUE COPY OF THE G.O (MS) NO.371/2000/G.EDN.
OF THE GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE LETTER NO.37097/D2/06/G.EDN
OF THE GOVERNMENT.
EXHIBIT P10(A) TRUE COPY OF THE G.O (RT) NO. 1199/2011/G.EDN
OF THE GOVERNEMNT
EXHIBIT P11 TRUE COPY OF THE LETTER NO.
72481/E2/2010/G.EDN OF THE GOVERNMENT.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN W.A. NO. 333 OF 2008.
EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC NO.20320 OF
2013-L DATED 11.03.2015.
