Kerala High Court
The State Of Kerala vs Mony C.S on 1 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
OP(KAT) NO. 244 OF 2020
AGAINST THE ORDER DATED 14.12.2018 IN TA 5835/2012 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN T.A:
1 THE STATE OF KERALA
REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION
DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
695 001, KERALA.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDINGS, SANTHINAGAR,
THIRUVANANTHAPURAM-695 001, KERALA.
SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER
RESPONDENTS/APPLICANTS IN T.A :
1 MONY C.S.
PRINCIPAL, G.H.S.S KUMARAPURAM, AMBIKAPURAM P.O.,
PALAKKAD PIN 678 011.
2 PARVATHI.M
PRINCIPAL G.H.S.S. CHNDAMPETTAH, PALAKKAD KERALA.
BY ADV SMT.K.P.GEETHA MANI
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (KAT) No.244 of 2020
2
(CR)
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
=========================================
O.P (KAT) No.244 of 2020
[arising out of the impugned final order dated 14.12.2018
in T.A No.5835/2012 on the file of the KAT, TVM Bench]
=========================================
Dated this the 01st day of October, 2021
JUDGMENT
Alexander Thomas, J.
The respondents herein, had earlier filed a Writ Petition (Civil),
W.P(C) No.9858/2011 before this Court with the following prayers [ see
page Nos.20 & 21 of the paper book of the O.P] :
"(a)Issue a writ of certiorari, or any other appropriate writ, order or
direction calling for the records leading to Exhibits P-7 and to
quash the same to the extent it denies monetary benefits and
other consequential benefits to the petitioners;
(b)Issue a writ of Mandamus, or any other appropriate writ, order
or direction declaring that the petitioners are entitled to get
promotion to the post of Principals of Government Higher
Secondary Schools with effect from 01-08-2009 and all
consequential benefits including the arrears of salary for the
period from 01-08-2009 till they were given the scale of pay of
Principals and also other consequential benefits and
opportunities to make option or re-option for fixation of their pay
scale;
and
(c) Pass such other orders or directions as this Hon'ble Court may
deem just, fit and necessary in the facts and circumstances of the
case including the costs of these proceedings."
O.P (KAT) No.244 of 2020
2. After establishment of the Kerala Administrative Tribunal, in
accordance with the provisions contained in the Administrative
Tribunal's Act, 1985, the above Writ Petition (Civil) No.9858/2011 was
transferred from this Court to the Kerala Administrative Tribunal, for
adjudication and decision. The said writ proceedings have been
re-numbered by the Tribunal as Transferred Application, T.A
No.5835/2012.
3. Now, the Tribunal after hearing both sides, has rendered the
impugned Annexure-III final order dated 14.12.2018 in T.A
No.5835/2012, whereby, the main pleas of the applicants have been
granted and the respondents in the O.A have been directed to disburse
monetary benefits due to the applicant on account of the retrospective
promotion as Principal of Higher Secondary School w.e.f 01.08.2009, as
has been ordered in the case of the admitted juniors of the applicants.
4. Being aggrieved by the impugned Annexure-III final verdict
of the Tribunal in the above Transferred Application, the respondents
therein (State of Kerala & the Director of Higher Secondary Education),
have filed the instant Original Petition under Articles 226 & 227 of the
Constitution of India with the following prayers [see page No.7 of the paper
O.P (KAT) No.244 of 2020
book of the O.P] :
"...................... to stay the operation and implementation of
Annexure-III order dated 14.12.2018 in TA No.5835/2012 on the file
of the Kerala Administrative Tribunal, Thiruvananthapuram
pending disposal of the above OP(KAT)."
5. Heard Sri.B.Unnikrishna Kaimal, learned Senior
Government Pleader appearing for the petitioners in the
O.P/respondents in the T.A, Sri.P.N.Santhosh, learned Advocate
appearing for the respondents in the O.P/applicants in the T.A.
6. The two applicants were initially recruited as High School
Assistants (HSA) and Upper Primary School Assistant (UPSA)
respectively in Government School service. Later, they were appointed
on transfer basis to the post of Higher Secondary School Teachers
(HSST) in July, 1997 & August, 1997 respectively. The Government had
issued Ext.R1(a) G.O. (Ms) No.171/2003/G.Edn. dated 23.06.2003,
wherein it has been ordered in para 4 thereof that, the senior most
qualified Higher Secondary School Teacher of the Higher Secondary
School concerned, will be the Principal subject to the following
stipulations [see page No.49 of the paper book of the O.P] :
" 1. The seniority for being placed as Principal will be determined with
reference to the date from which they are continuosly (sic)
working as Higher Secondary School teacher. In case there are
O.P (KAT) No.244 of 2020
more than one Higher Secondary School Teachers with the same
date of appointment in the Higher Secondary School Teacher
cadre, seniority will be fixed reckoning the seniority as High
School Assistant.
2. Higher Secondary School Teachers thus placed as Principal will be
eligible for special allowance of Rs.250/- P M.
3. The Headmasters will continue as Headmasters of High School
Section.
4. The Higher Secondary School Teacher who take charge as
Principal will continue to teach as a Higher Secondary School
Teacher but with a reduction of teaching periods to a maximum of
four periods a week. Those periods of teaching will be distributed
among other Higher Secondary School Teachers.
5. Corporate Educational agencies having more than one Higher
Secondary Schools under their Management shall appoint only
qualified Senior Most Higher Secondary School Teacher under the
Management as Principal."
7. It is common ground that, in tune with Ext.R1(a) G.O. (Ms)
No.171/2003/G.Edn. dated 23.06.2003, the 1st applicant was posted as
Principal of the Higher Secondary School concerned in July 2005 and
the 2nd applicant was posted as Principal of the Higher Secondary School
concerned in February, 2006. A seniority list of Principals of
Government Higher Secondary Schools was published, in which the
names of the two applicants herein were omitted, whereas the names of
about 200 incumbents who were admitted juniors to the applicants were
included. Those included in the seniority list were promoted as
O.P (KAT) No.244 of 2020
Principal in the higher scale of pay on the basis of G.O.(Rt.)
No.3240/09/Gen. Edn. dated 01.08.2009. Being aggrieved by the act of
the official respondents in appointing them to the post of Principal, on
the basis of the above G.O dated 01.08.2009, the applicants have
preferred representations dated 05.08.2009 (Exts.P-1 & P-2) before the
competent authority pointing out the illegality in the seniority list and
seeking rectification thereof. By Ext.P-3 order dated 02.11.2009, the
competent authority of the State Government had included the
applicants as well as some other Higher Secondary School Teachers of
Government School in the select list for promotion as Principal for the
year 2009 and in which, the applicants have been included as serial
Nos.6 & 9 respectively in the said select list. However, the earlier select
list published as per order dated 22.07.2009 giving the benefit in favour
of the admitted juniors of the applicants, was not modified, so as to
effectuate the promotion of the applicants w.e.f 22.07.2009. It is later
by Ext.P-4 order dated 27.03.2010 that, the applicants and some other
higher secondary school teachers were promoted as Principal. The
specific case of the applicant that, since admitted juniors have been
included for promotion, as per G.O (Rt.) No.3240/2009/Gen.Edn.
O.P (KAT) No.244 of 2020
Dated 01.08.2009, the two applicants should also be given the benefit of
promotion to that post w.e.f 01.08.2009, which is the date on which
their admitted juniors have been promoted.
8. It is common ground that, pursuant to the earlier posting of
the petitioners as Principal of Government Higher Secondary Schools
from 07.07.2005 to 13.06.2006, on the basis of Ext.R1(a) G.O, the two
applicants have been discharging the duties and functions of Principal of
the Government school concerned and no other incumbents have
worked in those posts and has claimed salary as Principal in those
schools. It is in the light of these grievances that, the applicants had
approached this Court by filing the instant Writ Petition (Civil), W.P(C)
No.27945/2010, which was transferred to the Tribunal. Later, the
Government as per Ext.P-7 order dated 25.01.2011 has granted notional
promotion to the applicants with effect from the date on which their
immediate juniors have assumed charge as Principal, subject to the
condition that back arrears are not admissible. A reading of Ext.P-7 G.O
dated 25.01.2011 would make it clear that the applicants have been given
notional promotion as Principal of Government Higher Secondary
Schools w.e.f 01.08.2009, the date on which the said benefit has been
O.P (KAT) No.244 of 2020
given in favour of the admitted juniors of the applicants. However, the
arrears of pay and allowances in the post of Principal w.e.f 01.08.2009
has been denied. It is pointed out that they have received full pay and
allowances in the post of Principal only w.e.f 23.07.2010 in pursuance of
Ext.P-4 dated 27.03.2010, on which date they were regularly promoted
as Principal.
9. The Tribunal after hearing both sides, has taken the
considered view that it is the admitted case of both sides that the
applicants have infact been duly discharged the duties and functions of
the post of Principal in the Government Schools concerned with effect
from their initial placement as Principal on the basis of Ext.R-1(a) G.O in
the years 2005 & 2006 onwards. Therefore, in the light of these aspects,
the Tribunal has held that since actual regular promotion has been
conferred in favour of the admitted juniors of the applicants, w.e.f
01.08.2009, confining the promotion benefits in the case of the
applicants only on notional basis w.e.f 01.08.2009, is not justifiable in
law and that since the applicants have been discharging the duties and
functions of the post of Principal, since then, as above they are entitled
to full pay and allowances from 01.08.2009, the date on which the
O.P (KAT) No.244 of 2020
admitted juniors of the applicants have been given promotion and pay &
allowances in the post of Principal.
10. After hearing both sides, we are of the firm view that the
Tribunal has given sound and good reasons for justifying their
conclusions in the matter. It is on this basis that, the Tribunal has
ordered that the R1 in the T.A shall disburse monetary benefits eligible
to the applicants on account of their retrospective promotion as
Principals of Higher Secondary Schools w.e.f 01.08.2009, within the
time limit stipulated therein. There is no dispute that in pursuance of
Ext.R1(a) G.O, the applicants have infact discharged duties and
functions of the post of Principal, from 07.07.2005 and 13.06.2006
onwards. No other incumbent has been posted as Principal of the
schools since then and no other incumbent has received full pay and
allowances in the post of Principal in those schools for the relevant
period in question. Since the applicants were discharging duties and
functions in the post of Principal, there is no question of denying
backwages on the ground that the regular promotion would entail
change of duties and responsibilities. The contention raised by the
petitioners in the O.P that the applicants have not discharged duties and
O.P (KAT) No.244 of 2020
functions in the post of Principal and by placing reliance on Rule 23(a)
of Part-I KSR, is thus clearly untenable. True that, the method of
appointment envisaged in Ext.R1(a) G.O dated 23.06.2003 was
placement of the senior most Higher Secondary School Teacher of the
school concerned as Principal of the said school concerned. But for all
purposes, the incumbents like the applicants have discharged duties and
functions in the post of Principal. It is much later, that the regular
method of appointment was envisaged by the Department. Admitted
juniors have been given the benefit of regular promotion w.e.f
01.08.2009 and the omission to give the same benefit to the applicants
with effect from that day, is clearly illegal and discriminatory and
violative of the elementary principles enshrined in Articles 14 & 16 of the
Constitution of India. Therefore, merely because the method of
appointment envisaged in Ext.R1(a), is styled as "placement" and not as
an "appointment", will not make any substantial difference, as regards
the conclusions arrived at by the Tribunal in this case. Hence, the
abovesaid contentions raised by the applicants, will also stand overruled.
No grounds to invoke the public law remedy have been made out in the
instant case. However, we note that the Tribunal
O.P (KAT) No.244 of 2020
has rendered the final verdict, as per Annexure-III as early as on
14.12.2018. The present O.P(KAT) has been filed only on 08.07.2020.
In view of the long delay in the matter, it is ordered that the competent
authority among the applicants, more particularly, R1 will ensure that
the directions and orders of the Tribunal at Annexure-A3 are complied
with, without any further delay, at any rate, within an outer time limit of
six weeks from the date of receipt of a copy of this judgment. The
learned counsel for the respondents will immediately forward copies of
this judgment to the petitioners in the O.P, for necessary information
and immediate compliance.
With these observations and directions, the above Original Petition
will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
vgd
O.P (KAT) No.244 of 2020
APPENDIX OF OP(KAT) 244/2020
PETITIONERS' ANNEXURES
ANNEXURE I TRUE COPY OF THE WP(C) NO.9858/2011 WITH
ITS EXHIBITS
ANNEXURE II TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE 1ST RESPONDENT ALONG WITH ITS
EXHIBITS.
ANNEXURE III TRUE COPY OF THE ORDER DATED 14/12/2018 IN
TA.NO.5835/2012.
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED
5/8/2009 SUBMITTED BY THE 1ST PETITIONER.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
5/8/2009 SUBMITTED BY THE 2ND PETITIONER.
EXHIBIT P3 TRUE COPY OF THE GO(P) NO.213/09/GI.EDN
DATED 2/11/2009 ISSUED BY THE GOVERNMENT.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE
GO(RT) NO.1400/10/GL.EDN DATED 27/3/10
PROMOTING THE PETITIONERS AS PRINCIPALS.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
17/5/10 SUBMITTED BY THE 1ST PETITIONER TO
RESPONDENTS.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 8/11/2010
IN WP(C) NO.27945/2010 OF THIS HON'BLE
COURT.
EXHIBIT P7 TRUE COPY OF THE GO(RT) NO.358/11/GI.EDN
DATED 25/1/11 ISSUED BY THE 1ST
RESPONDENT.
O.P (KAT) No.244 of 2020
EXHIBIT R1(A) TRUE COPY OF GO(MS) NO.171/2003/G.EDN
DATED 23/6/2003.
EXHIBIT R1(B) TRUE COPY OF GO(P) NO.154/09/GI.EDN DATED
22/7/2009.
EXHIBIT R1(C) TRUE COPY OF GO(RT) NO.3240/2009/GI.EDN
DATED 1/8/2009.
