Suvidya P.P vs The State Of Kerala Represented By
2021 Latest Caselaw 8459 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                  WP(C).No.31802 OF 2018(A)


PETITIONERS :-

      1     SUVIDYA P.P.
            SANSKRIT TEACHER (FULL TIME),
            PADANNAKKARA BASIC UP SCHOOL, PINARAYI P.O.,
            KANNUR DISTRICT.

      2     SREEKUMAR T.V.
            SANSKRIT TEACHER (PART TIME),
            KAVUMBHAGOM SOUTH UP SCHOOL, KAVUMBHAGOM,
            KANNUR DISTRICT.

            BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM

RESPONDENTS :-

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

      2     THE DIRECTOR OF PUBLIC INSTRUCTIONS
            OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS,
            THIRUVANANTHAPURAM - 695 001.

      3     THE DISTRICT EDUCATIONAL OFFICER
            THALASSERY - 670 101.

      4     THE ASSISTANT EDUCATIONAL OFFICER
            THALASSERY NORTH - 679 532.

      5     THE MANAGER
            PADANNAKKARA BASIC UP SCHOOL,
            PENARAYI P.O, KANNUR DISTRICT - 670 741.

      6     THE MANAGER
            KAVUMBHAGOM SOUTH UP SCHOOL, KAVUMBHAGOM,
            KANNUR DISTRICT - 689 102.

      7     HEAD MASTER
            PADANAKKARA BASIC UP SCHOOL, PINARAYI P.O,
            KANNUR DISTRICT - 670 741.
 WP(C).No.31802 OF 2018(A)

                              -: 2 :-


       8      HEAD MASTER
              KAVUMBHAGOM SOUTH UP SCHOOL,
              KAVUMBHAGOM, KANNUR DISTRICT - 689 102.

              BY SRI.T.RAJASEKHKARAN NAIR, SR.GP


     THIS   WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-03-2021, THE COURT ON 15-03-2021 DELIVERED THE FOLLOWING:
 WP(C).No.31802 OF 2018(A)

                                     -: 3 :-


                                 JUDGMENT

Dated this the 15th day of March, 2021

The prayers in this writ petition are as follows :-

"i) To issue a writ of certiorari to quash Exts.P5, P6, P10, P11 & P15 as it is illegal and unjustifiable.

ii) To declare that the direction in Ext.P15 order to grant full time benefit to the petitioners only if they scrupulously withstand the conditions stipulated in GO(MS)No.62/73/ G.Edn. dated 2/5/1973 of the 1st respondent is against the existing rules and Exts.P18 to P21.

iii) To declare that the petitioners are entitled to get full time benefit w.e.f. 1/6/2016 onwards as they have completed 5 years of continuous service as part time Sanskrit teacher in their parent school as on 31/5/2016.

iv) To issue a writ of mandamus or any other appropriate writ or order or direction directing the 4 th respondent to grant full time benefit of Sanskrit from 1/6/2016 onwards to the petitioners and to disburse all consequential monetary benefits due to them forthwith.

v) To issue a writ of mandamus or any other appropriate writ or order or direction directing the 4th respondent to disburse arrears due to the 1st petitioner in the light of Ext.P16 proceedings forthwith."

2. Heard the learned counsel for the petitioners and the

learned Government Pleader.

3. The petitioners were appointed as part time Sanskrit

teachers in the respective aided schools from 1.6.2009 onwards. WP(C).No.31802 OF 2018(A)

Since the schools were uneconomic, their appointments were

approved on a scale of pay from 1.6.2011 onwards. On completion

of five years continuous approved service as part time Sanskrit

teachers, they submitted requests before the 4 th respondent

seeking full time benefits from 31.5.2016. They relied on Exts.P3

and P4 Government Orders. The claims were rejected by the 4 th

respondent on the ground that there was reduction in student

strength and therefore, no sanctioned posts were available to

accommodate the petitioners in the school during the academic

year 2014-15. It is contended by the learned counsel for the

petitioners that such an objection is untenable since there was no

staff fixation orders issued for the academic year 2014-15 and the

staff fixation for the academic year 2010-11 was continuing till staff

fixation orders were issued in the year 2016.

4. It is further stated that the petitioners had continued in

their respective institutions for the academic years 2013-14, 2014-

15 and 2015-16 also and that it stands certified that both the

petitioners had more than eight periods of work per week. It is

submitted that in the case of the 1st petitioner, this fact is admitted

in Ext.P16 order and that in the case of the 2nd petitioner, Ext.P23

certificate would show that he was teaching 12 periods in a week. WP(C).No.31802 OF 2018(A)

It is submitted that Ext.P18 judgment of this Court as well as

Ext.P21 and several other Government Orders, which are produced

by the petitioners and relied on, are authority on the point that the

period during which teachers were retained in the school on orders

of protection would also be liable to be considered for reckoning

the five years of continuous service for full time benefits.

5. In Ext.P18 judgment, this aspect has specifically been

considered and it was held that the periods when the petitioner

therein had been deployed to other schools on protection is also to

be considered for reckoning the five years of aggregate service. In

that case, even though there was a contention that the eight hours

of work per week was not available in the deployed schools, the

petitioner was directed to be granted the full time benefits on the

basis of the Government Orders issued in the case of similarly

situated teachers. In Ext.P21 order passed by the Government

also, reckoning the earlier directions of this Court, the periods

when the teacher was retained under orders of protection were

also directed to be included in the five years of aggregate service

for the grant of full time benefits. Ext.P22 order of the

Government, which specifically clarified that five years continuous

aggregate service even under orders of protection will be sufficient WP(C).No.31802 OF 2018(A)

to grant full time benefits as per Exts.P3 and P4 Government

Orders, is also produced and relied on.

6. A counter affidavit has been placed on record by the 2 nd

respondent. It is stated that the petitioners' services were

approved as part time Sanskrit teachers only with effect from

1.6.2011 by Exts.P1 and P2. It is submitted that there was no

sufficient number of pupils studying Sanskrit in the schools where

the petitioners were appointed during the entire period of five

years from 1.6.2011 and therefore, it was noticed that the

provisions of Ext.P3 Government Order stood violated. It is,

however, admitted in paragraph 5(a) of the counter affidavit that

though there was no sanctioned post in 2014-15 and 2015-16, the

1st petitioner was retained in the same school during the said

period and had been deployed to GUPS, Eruvesy only from

1.9.2016 to 13.10.2016 and was repatriated to parent school from

14.10.2016. It is contended that only part time language teachers

who have put in more than five years of service and have eight

periods of work are eligible for the full time benefits. It is stated

that in the case of the 2nd petitioner also, the post of part time

Sanskrit teacher was not sanctioned in the school where he was

working from the years 2014-15 and 2015-16. It is stated that the WP(C).No.31802 OF 2018(A)

2nd petitioner was also retained in the same school and was paid

salary for the period and was later deployed to the GUPS,

Pothankundu only from 31.8.2018 to 16.10.2018. It is contended

that it is only on the petitioners having five years of continuous

aggregate service under the same educational agency that they

would be entitled to full time benefits.

7. I have considered the contentions advanced on either

side. It is an admitted fact that the petitioners' appointments as

part time teachers had been approved from 1.6.2011. It is also not

in dispute that they had continued in the same school till they

acquired five years of continuous service necessary for the grant of

full time benefits. The staff fixation for the year 2014-15 and 2015-

16 was conducted only in the year 2016 and the staff fixation for

the year 2010-11 was continuing till then. The petitioners had,

therefore, completed the five years of aggregate service required

in the schools in which they were appointed itself. Ext.P22

Government Order as well as Exts.P18 and P19 judgments as also

the Government Orders issued in respect of identically situated

teachers which are produced along with the writ petition would

show that the requirement is for completion of five years of

continuous aggregate service as part time language teacher. The WP(C).No.31802 OF 2018(A)

petitioners admittedly have this service. In Ext.P22, it has been

specifically clarified that the periods spent on protection by part

time language teachers can also be considered for reckoning the

five years of aggregate continuous service for the purpose of grant

of full time benefits. In the 1 st petitioner's case, there is no dispute

that she had eight hours or more of work per week. In the case of

the 2nd petitioner also, Ext.P23 certificate would show that he had

more than eight hours of work per week.

8. In the above factual situation, I am of the opinion that

the contention taken that the periods spent by the petitioners in

the parent schools, when there were no posts to accommodate

them, is liable to be deducted for reckoning the period of

continuous service cannot be accepted. I am, therefore, of the

opinion that the writ petition is liable to succeed.

The impugned orders are, therefore, set aside. There

will be a direction to the respondents to grant the petitioners full

time benefits on completion of five years of aggregate service in

the part time post, that is, with effect from 1.6.2016 onwards.

Orders shall be passed granting the said benefit to the petitioners

within a period of two months from the date of receipt of a copy of

this judgment. The attendant benefits shall also be calculated and WP(C).No.31802 OF 2018(A)

disbursed to the petitioners within a period of three months

thereafter.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/8.3.2021 WP(C).No.31802 OF 2018(A)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/6/2009 OF THE 1ST PETITIONER ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 9/3/2009 OF THE 2ND PETITIONER ISSUED BY THE 6TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF GO(MS)NO.62/73/G.EDN. DATED 2.5.1973.

EXHIBIT P4 TRUE COPY OF GO(MS)NO.11/87/G.EDN. DATED 7.1.1987.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 7.9.2016 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22.12.2016 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE APPEAL PETITION DATED 6.10.2016 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE APPEAL PETITION DATED20.1.2017 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 30.5.2017 IN W.P.

(C0NO.17960/2017 PASSED BY THIS HON'BLE COURT.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 7.8.2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 7.8.2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE REVISION PETITION DATED 23/9/2017 SUBMITTED BY THE 1ST PETITIONER.

EXHIBIT P13 TRUE COPY OF THE REVISION PETITION DATED 23/9/2017 SUBMITTED BY THE 2ND PETITIONER.

EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 31.10.2017 IN W.P.

(C) NO.34769/2017.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 28/6/2018 ISSUED BY THE 1ST RESPONDENT.

WP(C).No.31802 OF 2018(A)

EXHIBIT P16 TRUE COPY OF THE PROCEEDINGS DATED 5.12.2017 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE JUDGMENT DATED 13.6.2017 IN W.P.

(C)NO.17235/2017 ISSUED BY THIS HON'BLE COURT.

EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 19.1.2015 IN W.P.

(C).NO.34123/2008 PASSED BY THIS HON'BLE COURT.

EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 24/10/2014 IN W.A.NO.1710/2009.

EXHIBIT P20 TRUE COPY OF THE JUDGMENT DATED 14/12/2017 IN W.P.

(C)NO.40280/2017.

EXHIBIT P21 TRUE COPY OF THE GO(RT)NO.1390/2018/G.EDN.DATED 9.4.2018 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P22 TRUE COPY OF THE GO(MS) NO.189/82/G.EDN.DATED 14-

12-1982

EXHIBIT P23 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 8TH RESPONDENT

EXHIBIT P24 TRUE COPY OF THE CIRCULAR BEARING NO. H(2)/34017/ 2017/DPI DATED 20-06-2017 ISSUED BY THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R2(a) : TRUE COPY OF THE ORDER No.G4/57520/2018/DPI/ K.DIS DATED 07.01.2019.