Jasmine Mary Chacko vs State Of Kerala
2022 Latest Caselaw 6991 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
    FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944



                   WP(C) NO. 27464 OF 2019



PETITIONER:


         JASMINE MARY CHACKO
         HSST (JR) COMPUTER APPLICATION, ST. BEHANAN'S HSS,
         VENNIKULAM, PATHANAMTHITTA.

         BY ADVS.
         JACOB P.ALEX
         JOSEPH P.ALEX
         MANU SANKAR P.


RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.

2 DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM 695001.

3 REGIONAL DEPUTY DIRECTOR, DIRECTORATE, HIGHER SECONDARY EDUCATION, THAMBAYATHIL BUILDING, CHENGANOOR, ALAPPUZHA 689 121.

4 CORPORATE MANAGER, (CATHOLICATE AND M.D. SCHOOL) CORPORATE MANAGEMENT), DEVALOKAM, KOTTAYAM-686 038.

SRI PREMCHAND R NAIR, SR GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JU DGMENT

The petitioner has approached this Court seeking to quash Ext.P4

Government Order as per which the request made by the petitioner to upgrade

her post from Higher Secondary School Teacher (Junior) (Computer

Application) in the St.Behanan's HSS, Vennikulam to Higher Secondary School

Teacher ('HSST') stands rejected. The petitioner has sought for a declaration

that the post is liable to be upgraded in accordance with Ext.P1

recommendation issued by the 3rd respondent and for incidental reliefs.

2. The brief facts which are required to be stated for disposal of the

writ petition are as under:

The petitioner contends that she is working as a Higher Secondary

School Teacher (Junior) (hereinafter referred to as 'HSST (Jr.)', for the sake of

brevity) in the St.Behanan's HSS, Vennikulam, an aided school managed by the

4th respondent and governed by the provisions of the Kerala Education Act,

1958 and the Rules framed thereunder. She contends that the approval of her

appointment was granted on 14.09.2012. According to the petitioner, as per

Ext.P1 proceedings of the Regional Deputy Director ('RDD'), Chengannur, staff

fixation was carried out and upon finding that the workload had exceeded 15

periods per week, there was a recommendation for the upgradation of the post

of HSST(Jr)(Computer Application) to HSST. In the said circumstances, the

Corporate Manager submitted an application before the 3rd respondent.

However, by Ext.P2 order, the request was rejected on the ground that

HSST(Jr.) post was sanctioned on 25.05.2004 under extraordinary

circumstances and there is no condition therein that the post has to be

upgraded. Being aggrieved, the petitioner is stated to have preferred Ext.P3

revision petition before the 1st respondent. Pursuant to orders passed by this

Court, the revision petition was taken up by the 1st respondent, and the same

was rejected by Ext.P4 order. It is in the aforesaid circumstances, that the

petitioner is before this Court seeking to quash Ext.P4 and for consequential

reliefs.

3. In the counter affidavit filed by the 1st respondent, it is stated that

it was in terms of Ext.R1(a) Government Order dated 26.07.2000 that higher

secondary courses with two batches in Science and one batch in Commerce

were sanctioned in the St.Behanan's HSS, Vennikulam. During the academic

year 2001-2002, there were two Higher Secondary School Teachers in

Mathematics, and approval was granted. Later, the Manager of the School suo

motu introduced Computer Application instead of Mathematics and appointed

the petitioner to that post. By Ext.R1(b) order dated 25.05.2004, the

Government accorded sanction to change the subject combination of

Mathematics to Computer Application on a condition that there shall not be any

additional financial commitments by the Government on account of the subject

change that has been ordered. According to the 1st respondent, though the

3rd respondent had conducted an inspection and on the basis of the staff

fixation order had recommended that HSST(Jr.) (Computer Application) is to be

upgraded as HSST from 2009-2010, the said proposal was rejected by the 2nd

respondent on the ground that the creation of the post of HSST(Jr.) was

sanctioned for the limited purpose of regularising the appointment of the

petitioner. The said order was passed as a special case and therefore there

cannot be an upgradation of the post.

4. Sri. Jacob P Alex, the learned counsel appearing for the petitioner

submitted that the request made for upgradation of post from HSST (Jr.) to

HSST was rejected on frivolous grounds. It is submitted that Ext.P1 staff

fixation order clearly reveals that the workload had exceeded 15 hours per

week. According to the learned counsel, the only question is whether the

petitioner satisfies the condition in Rules 3 and 4 of Chapter XXXII of the KER.

It is further submitted that the issue raised in this writ petition is covered by

the law laid down by this Court in State of Kerala and Ors. v. K.V.Sreejith

and Ors. [2019 (2) KLT 253] and in Fr. Somy Mathew and Another v.

State of Kerala and Ors. [2021 (5) KHC 551].

5. The learned Government Pleader has opposed the submissions. It

is submitted that approval of the appointment of the petitioner was granted as

a special case and one of the conditions was that there shall not be any

financial commitments.

6. I have considered the submissions advanced and have perused the

records.

7. To appreciate the contentions advanced, the relevant provisions of

the law have to be averted to.

8. Rule 1 of Chapter XXXII of the KER defines an HSST and HSST (Jr.)

as follows:

"(d) 'Higher Secondary School Teacher' means a Higher Secondary School Teacher of an aided school whose workload is 15 or more periods per week per subject.

(e) 'Higher Secondary School Teacher (Junior)' means a Higher Secondary School Teacher of an aided school whose workload is less than 15 or more periods per week per subject."

9. As defined above, Rule 1(d) of Chapter XXXII of the KER defines a

Higher Secondary School Teacher to mean a Higher Secondary School Teacher

of an aided school whose workload is 15 or more periods per week per subject.

HSST(Jr.) has been defined under Rule 1(e) to mean a HSST of an aided school

whose workload is less than 15 periods per week per subject.

10. Rule 3 of Chapter XXXII governs the manner in which posts are to be

sanctioned to Higher Secondary Schools. The said provision reads thus:

"3. The service of every aided Higher Secondary School shall consist of all or any of the following categories of posts as the Director may sanction..." (emphasis supplied)

11. Rule 3 states that the service of every aided Higher Secondary

School shall consist of all or any of the following categories of posts as the

Director may sanction.

12. A Division Bench of this Court in K.V.Sreejith (supra) had occasion

to hold that while interpreting the provisions of the Rules that upgradation

cannot be a matter of policy of the Government and would depend on an

increase in the workload of a teacher beyond 15 periods. The upgradation

would depend on the parameters contained in Chapter XXXII K.E.R., referred to

above. After examining the statutory provisions, it was held as follows in

paragraphs 7 and 8 of the judgment.

7............................In the above context, it is necessary to notice that Rule 3 of Chapter XXXII governs the manner in which posts are to be sanctioned to Higher Secondary Schools. Rule 3 to the

extent relevant reads as under:-

3. The Kerala Aided Higher Secondary Education Service-- The service of every aided Higher Secondary School shall consist of all or any of the following categories of posts as the Director may sanction.

8. What is necessary to be noticed from the above provision is that, the service of every aided Higher Secondary School is directed to consist of all or any of the categories of posts mentioned therein "as the Director may sanction". Therefore, the authority to sanction posts, going by Rule 3 above is the Director of Higher Secondary Education. In the above context, the definitions in Rule 1(d) and

(e) being relevant are extracted herein below:-

(d) 'Higher Secondary School Teacher' means a Higher Secondary School Teacher of an aided school whose work load is 15 or more periods per week per subject.

(e) 'Higher Secondary School Teacher (Junior)' means a Higher Secondary School Teacher of an aided school whose work load is less than 15 periods per week per subject.

The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week.

The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week.

A Higher Secondary School Teacher means a Higher School Teacher whose workload is 15 or more periods per week per subject. It therefore follows that, a Higher Secondary School Teacher (Junior) has to be upgraded to the post of Higher Secondary School Teacher, once the workload exceeds 15 periods per week. The above exercise has to be done by the Director of Higher Secondary Education, going by Rule 3 of Chapter XXXII. It is only in the matter of creation of posts that the State has power. As per Exhibit P2, posts of H.S.S.T. (Junior) were sanctioned by the Government with effect from 06.08.2011 onwards. The question as to whether the said posts were to be upgraded to H.S.S.T. would depend on whether the workload had exceeded 15 hours per week. The authority to assess the said situation and to sanction such upgradation is the Director of Higher Secondary Education. In the present case, the Director of Higher Secondary Education had recommended for such sanction to the Government. The Government accepted the said recommendation and has issued Exhibit P3 Government Order upgrading the posts but subject to the condition that such upgradation shall take effect only prospectively from the date of the order. Though we have tried to ascertain the basis for fixing the date of the Government Order as the date from which such upgradation has been directed to take effect, the only explanation is that since the matter involved financial commitments, it was part of the policy of the Government to do so. We find no other explanation. Since going by the Rules, the upgradation has to depend on increase in the workload of a teacher beyond 15 periods, it cannot be said that upgradation is a matter of policy of the Government. The policy of the Government would end when posts are sanctioned by it. Thereafter, upgradation would have to depend on the parameters contained in Chapter XXXII K.E.R., referred to above. In these cases, as the Higher Secondary Schools were sanctioned during the year 2010, it

is not in dispute that the courses had continued to be conducted thereafter, without any break. Therefore, the students who were admitted in the year 2010-11, would certainly have come to the second year of the course during 2011-12. The teachers who were appointed initially as guest lecturers have been accommodated in the newly sanctioned posts of H.S.S.T.(Junior), with effect from 06.08.2011 onwards. The question as to whether they were entitled to be upgraded as H.S.S.T.would depend on the workload of each one of them, as indicated above. .................................

13. As held by this Court, a HSST(Jr.) has to be upgraded to the post

of HSST once the workload is 15 periods or more and the said exercise has to

be done by the Director of Higher Secondary Education as per the mandate

under Rule 3 of Chapter XXXII. It can only be in the matter of the creation of

posts that the State has power. The question as to whether the said posts are

to be upgraded to HSST would depend on the solitary question as to whether

the workload is at least 15 hours per week. Upgradation cannot be regarded

as a matter of policy of the Government as the policy of the Government would

end when posts are sanctioned by it.

14. In the case on hand, Ext.P1 proceedings issued by the 3rd

respondent would reveal that there were more than 15 periods for Computer

Applications and the RDD in the light of relevant rules had recommended for

upgradation of HSST (Jr.) post to HSST from the academic year 2009-2010

onwards. As held by this Court in K.V. Sreejith (supra), the question as to

whether the posts were to be upgraded to HSST would depend on whether the

workload is at least 15 hours per week. The authority to assess the said

situation and to sanction such upgradation is the Director. The RDD had no

jurisdiction to reject the application for upgradation for the reasons stated in

the order. No rider can be imposed by the Government as upgradation is in

accordance with the Rules which will have precedence over executive orders. In

that view of the matter, the rejection of the request for the upgradation of the

post to HSST cannot be said to be proper.

15. In view of the discussion above, the petitioner is entitled to

succeed. The following orders are issued

a) Ext.P4 will stand quashed.

b) It is held that HSST (Jr.) (Computer application) Post in the St.

Behanan's HSS, Pathanamthitta is liable to be upgraded as HSST

post in accordance with Ext. P1 recommendation. Consequently,

there will be a direction to the respondents 1-3 to upgrade HSST

(Jr.) (Computer Application) post in the St. Behanan's HSS,

Pathanamthitta as HSST.

c) Consequent to the upgradation of the post as ordered above, the

petitioner shall be entitled to the higher scale of pay with effect

from 04.02.2017, the date on which the post was recommended

for upgradation as per the staff fixation order.

Sd/-

RAJA VIJAYARAGHAVAN V,

JUDGE

PS/13/6/2021

APPENDIX OF WP(C) 27464/2019

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE STAFF FIXATION SANCTION ORDER BEARING NO.C7/9706/RDD/HSE/CNGR DATED 4.2.2017 ISSUED BY 3RD RESPONDENT.

EXHIBIT P2                TRUE COPY OF THE ORDER BEARING NO.
                          9706/C7/2017/RDD/CNGR DATED 9.2.2018
                          ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3                TRUE COPY OF THE REVISION PETITION DATED
                          15.10.2018 SUBMITTED BY THE PETITIONER
                          BEFORE THE 1ST RESPONDENT.

EXHIBIT P4                TRUE COPY OF ORDER BEARING NO. GO (RT)
                          NO.3577/2019/GEDN DATED 4.9.2019 ISSUED
                          BY 1ST RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R1(a)             TRUE COPY OF G.O.(MS)NO.243/2000/GEDN
                          DATED 26.07.2000

EXHIBIT R1(b)             TRUE COPY OF G.O(MS)NO.139/2004/GEDN
                          DATED 25.05.2004

EXHIBIT R1(c)             TRUE COPY OF G.O.(MS) NO.285/2012/G.EDN
                          DATED 14.09.2012