Jayadevan N.N vs State Of Kerala
2022 Latest Caselaw 6997 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. 33547 OF 2019


PETITIONERS:

  1     JAYADEVAN N.N.,
        AGED 31 YEARS
        S/O.SRI.T.N.NEELAKANDAN NAIR, HIGHER SECONDARY SCHOOL
        TEACHER (JUNIOR) ENGLISH, BRAHMAMANGALAM HIGHER SECONDARY
        SCHOOL AND VOCATIONAL HIGHER SECONDARY SCHOOL, CHEMPU,
        VAIKOM, KOTTAYAM DISTRICT, RESIDING AT NANDAVANAM,
        MANNACKANAD P.O., KOTTAYAM - 686 633.

  2     IRENE MATHEW,
        AGED 36 YEARS
        D/O.DR.V.T.MATHEW, HIGHER SECONDARY SCHOOL TEACHER
        (JUNIOR) MATHEMATICS, BRAHMAMANGALAM HIGHER SECONDARY
        SCHOOL AND VOCATIONAL HIGHER SECONDARY SCHOOL, CHEMPU,
        VAIKOM, KOTTAYAM DISTRICT, RESIDING AT VADAKKUMUKALAYIL
        HOUSE, KANJIRATHANAM P.O., KOTTAYAM - 686 603.

  3     ANEESHAMOL P.A.,
        AGED 36 YEARS
        D/O. LATE M.R.ASOKAN, HIGHER SECONDARY SCHOOL TEACHER
        (JUNIOR) PHYSICS, BRAHMAMANGALAM HIGHER SECONDARY SCHOOL
        AND VOCATIONAL HIGHER SECONDARY SCHOOL, CHEMPU, VAIKOM,
        KOTTAYAM DISTRICT, RESIDING AT ASHOK BHAVAN,
        BRAHMAMANGALAM P.O., KOTTAYAM - 686 605.

  4     SMITHA PAUL,
        AGED 43 YEARS
        D/O.THE LATE A.V.PAULOSE, HIGHER SECONDARY SCHOOL TEACHER
        (JUNIOR) CHEMISTRY, BRAHMAMANGALAM HIGHER SECONDARY SCHOOL
        AND VOCATIONAL HIGHER SECONDARY SCHOOL, CHEMPU, VAIKOM,
        KOTTAYAM DISTRICT, RESIDING AT THATTARKELIL HOUSE,
        KARIPPADOM P.O, KOTTAYAM - 686 605.
 W.P.(C) No.33547/2019             2




   5       RAJESH RAJAN,
           AGED 32 YEARS
           S/O.SRI.RAJAN V.N.,HIGHER SECONDARY SCHOOL TEACHER
           (JUNIOR) COMPUTER APPLICATION, BRAHMAMANGALAM HIGHER
           SECONDARY SCHOOL AND VOCATIONAL HIGHER SECONDARY SCHOOL,
           CHEMPU, VAIKOM, KOTTAYAM DISTRICT, RESIDING AT VAIKUNDAM
           HOUSE, MULANTHURUTHY P.O., ERNAKULAM DISTRICT - 682 314

   6       DEEPAMOL G.V.,
           AGED 42 YEARS
           D/O.SRI.M.VISWAMBHARAN, HIGHER SECONDARY SCHOOL TEACHER
           (JUNIOR) ECONOMICS, BRAHMAMANGALAM HIGHER SECONDARY SCHOOL
           AND VOCATIONAL HIGHER SECONDARY SCHOOL, CHEMPU, VAIKOM,
           KOTTAYAM DISTRICT, RESIDING AT ANI NIVAS, VADAKARA P.O.,
           THALAYOLAPPARAMBU, KOTTAYAM - 686 605.

           BY ADVS.
           SRI.O.V.RADHAKRISHNAN (SR.)
           SMT.K.RADHAMANI AMMA
           SRI.P.KRISHNANKUTTY NAIR (KOLLAMALA)


RESPONDENTS:

1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION (T) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM

- 695 001.

2 DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM, PIN - 695 014,FORMERLY DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM - 695 001.

3 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, KOTTAYAM - 686 001.

4 MANAGER, BRAHMAMANGALAM HIGHER SECONDARY SCHOOL AND VOCATIONAL HIGHER SECONDARY SCHOOL, CHEMPU, VAIKOM, KOTTAYAM DISTRICT - 686 605.

5 PRINCIPAL- IN -CHARGE, BRAHMAMANGALAM HIGHER SECONDARY SCHOOL AND VOCATIONAL HIGHER SECONDARY SCHOOL,CHEMPU, VAIKOM, KOTTAYAM DISTRICT - 686 605.

BY ADVS.

GOVERNMENT PLEADER SRI.S.P.ARAVINDAKSHAN PILLAY SRI.NIRMAL V NAIR SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K.

KUM.ABHIRAMI K. UDAY

SMT ANIMA M, 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 petitioners have approached this Court seeking to quash Ext.P15

Government Order and for issuance of directions to the 2nd respondent to

place the petitioners within the category of 'Higher Secondary School

Teacher' ('HSST' for the sake of brevity) based on various staff fixation orders

and also to grant necessary approval for their upgradation to the post of

HSST.

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

the writ petition are as under:

The petitioners contend that they were appointed as HSST (Junior)

with effect from 9.10.2014 by the 4th respondent, the Manager of the

Brahmamangalam Higher Secondary School. They have been continuing as

HSST (Jr.) since then. They contend that the 1st respondent granted

sanction for starting one Higher Secondary batch each in Science and

Commerce at Brahmamangalam Vocational Higher Secondary School during

the academic year 2013-2014 as per Ext.P1 order. Consequent thereto, the

Government sanctioned 6 posts of HSST (Jr.) and one post of HSST in the

school as per Ext.P2 order dated 4.9.2014. An inspection was thereafter

conducted by the Regional Deputy Director (RDD) on 27.9.2014 and the

strength of students for Higher Secondary Courses during the academic year

2013-2014 was determined. It was found that there were 36 students in the

Science batch and 45 students in the Commerce batch. The strength of the

teaching staff of the school was fixed as six HSST (Jr.) and one HSST as per

Ext.P3 proceedings dated 29.9.2014. On its basis, the petitioners were

appointed against the 6 sanctioned posts of HSST (Jr.) with effect from

9.10.2014 by the Manager. By Ext.P4 proceedings dated 6.11.2014, the

RDD granted approval to the appointment of the petitioners 2 to 6 and by

Ext.P5 proceedings, approval was granted to the 1st petitioner.

3. The petitioners contend that as per Ext.P6 proceedings dated

8.7.2015 of the RDD, there were a total number of 28 periods for Part-I

English, 16 periods for Mathematics, 16 periods for Physics, 16 periods for

Chemistry, 16 periods for Computer Application and 16 periods for

Economics. Taking note of the above fact, the RDD recommended that the

HSST (Jr.) posts in English, Mathematics, Physics, Chemistry, Computer

Application, and Economics be upgraded to HSST from 2014-2015 onwards.

4. In the said circumstances, the Manager submitted Ext.P7

representation seeking upgradation to the post of HSST. When no action

was taken, a writ petition was filed and pursuant to Ext.P8 judgment, the 1st

respondent issued Ext.P9 order directing the Director General of Education

('DGE') to re-examine the issue in the light of Government Orders dated

8.6.2017 and 7.6.2017.

5. While so, the RDD passed Ext.P10 proceedings fixing the staff

fixation for the academic years 2014-2015 and 2017-2018 in continuation of

the academic year 2013-2014. From Ext.P6 proceedings, it appears that the

number of recognized class divisions and the workload had increased to 15

and more periods per week per subject. In the light of Ext.P10 proceedings,

the Manager submitted Ext.P11 representation. Based on Exhibit P11, the

RDD forwarded to the DGE and requested that approval be granted for

sanctioning/upgrading the post. However, Ext.P13 letter was issued by the

Joint Director (Academic), pointing out that the upgradation of post from

HSST (Junior) to HSST would entail additional financial liability.

6. The petitioners yet again approached this Court and by Ext.P14

judgment, the Government was directed to take action. By Ext.P15 order, the

request for upgradation was rejected on the ground that it would go against

the conditions stipulated in the Government Order dated 31.7.2014.

7. According to the petitioners, Ext.P15 order was passed by the

Government clearly on a wrong premise. Relying on Ext.P16 Government

Order, which is referred to in Ext. P15, it is stated that all that is stated in

Ext.P16 is with regard to sanctioning of new Higher Secondary Schools and

additional batches for the academic year 2014-2015. According to the

petitioners, they were appointed against posts sanctioned for starting Higher

Secondary batch during the academic year 2013-2014, and therefore,

Ext.P16 cannot have any application insofar as they are concerned.

8. It is further contended that in view of the provisions of Chapter

XXXII of the KER, the upgradation of HSST (Jr.) to HSST is automatic as and

when the workload of HSST (Jr.) becomes 15 or more periods per week per

subject and the Government is not conferred with the power to ignore the

provisions in the Rules. It is contended that the petitioners have been

working in the post of HSST (Jr.) notwithstanding the increase of workload to

15 or more periods per week per subject from the academic year 2014-2015

and in that view of the matter, the respondents were bound to upgrade the

post as HSST. It is further stated that the petitioners are being paid pay and

allowances on a scale applicable to HSST (Jr.) ignoring the staff fixation for

the subsequent years. It is in the aforesaid circumstances that this writ

petition is filed seeking to quash Ext.P15 and for incidental reliefs.

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

that the school wherein the petitioners are working was upgraded as Higher

Secondary School by sanctioning one Science and Commerce batch from the

academic year 2013-14. The proposal for the creation and the upgradation of

posts was not as per the conditions stipulated in paragraphs No. (i) and (iii)

of G.O. (Ms) No.143/2014/G.Edn. dated 31.7.2014 and it was in the said

circumstances that the request was rejected. It is further stated that as per

the above Government Order, newly sanctioned Higher Secondary

Schools/Additional Batches should have at least 40 students in the

2014-2015 academic year and 50 students from the academic year

2015-2016 onwards. The Government considered the request for upgradation

in the light of the Government Order dated 31.7.2014 and as it was found

that the conditions mentioned therein have not been complied with, the

request was rejected. It is further stated that if the number of periods

irrespective of the number of students is taken as the criteria for the

creation/upgradation of posts, it would result in the creation of unnecessary

posts. Batches with sufficient number of students for three consecutive

years alone would be considered for the creation/upgradation of posts.

10. Sri. O.V.Radhakrishnan, the learned senior counsel appearing for

the petitioners, as instructed by Sri. P. Krishnankutty Nair, submitted that the

request made for upgradation of post from HSST (Jr.) to HSST was rejected

on the sole ground that the conditions in Ext.P16 Government Order were

not satisfied. According to the learned counsel, Ext.P16 was issued pursuant

to the directions issued by this Court in W.P.(C) 13851/2014 wherein the

issue was with regard to sanctioning of new Higher Secondary Schools and

additional batches. It is urged that the petitioners were appointed against

posts sanctioned for starting Higher Secondary batches for the academic year

2013-2014 and in their case, the only question is whether the petitioners

satisfy Rule 3 and 4 of Chapter XXXII of the KER. It is further urged that the

RDD had conducted an inspection and has submitted reports recommending

the upgradation of the petitioners to HSST and in that view of the matter,

their request for upgradation could not have been rejected. 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].

11. The learned Government Pleader has opposed the submissions.

It is submitted that the request made by the petitioners was considered in

the light of Ext.P16 Government order and the same was rejected. It is

further submitted that if the number of periods taught by the teachers is

taken as the criteria, it would result in the creation of unnecessary posts.

12. I have considered the submissions advanced and have perused

the records.

13. In order to appreciate the contentions advanced the relevant

Rules are required to be adverted to.

14. Rule 1 of Chapter XXXII of the KER defines a 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."

15. As defined above, Rule 1(d) of Chapter XXXII of the KER lucidly

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. Higher Secondary School Teacher (Junior) has been

defined under Rule 1 (e) to mean a Higher Secondary School Teacher of an

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

16. 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)

17. The provision states that the service of every aided Higher

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

enumerated in Rule 3 as the Director may sanction.

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

occasion to interpret the provisions of the Rules and had held that

upgradation cannot be a matter of policy of the Government and would

depend on an increase in the workload of a teacher 15 periods or beyond.

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 paragraph Nos.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. ...

19. As held by this Court, an HSST(Jr. ) has to be upgraded to the

post of HSST once the workload is at least 15 periods per week 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 per

subject. 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.

20. In the case on hand, Ext.P6 proceedings issued by the 3rd

respondent would reveal that there were more than 15 periods for part-I

English, Mathematics, Physics, Chemistry, Computer Application and

Economics. The RDD in the light of relevant rules had recommended for

upgradation of HSST (Jr.) post to HSST from the academic year 2014-2015

onwards. I also find that as per Ext.P10 proceedings, the RDD has

determined the staff fixation for the post of teachers for the academic years

2014-2015 to 2017-2018 in continuation of the academic year 2013-2014.

As held by this Court in 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. From Ext.P15 order passed by

the Government, it is evident that the proposal submitted by the Manager for

upgradation was recommended by the DGE, Higher Secondary Education as

per a letter dated 24.03.2018 and the authority has forwarded the necessary

recommendations to the Government. It was also mentioned therein that

the petitioners are fully qualified to be posted as HSST. However, the

Government refused to consider the request in view of conditions stipulated

in para (i) and para (iii) of the G.O (MS) No.143/2014/G.Edn dated

31.07.2014. The said Government order has been produced as Ext.P16 and

a perusal of the said order would reveal that the same was issued for

sanctioning new Higher Secondary Schools in 148 panchayats all over the

State for sanctioning additional Higher Secondary batches and also to

sanction one additional batch in Government/aided schools in the northern

districts of Kerala. The said Government order has nothing to do with the

upgradation of HSST (Jr.) to HSST by the operation of the provisions of

Chapter XXXII of the KER as explained by this Court in K.V.Sreejith (supra).

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.

21. In view of the discussion above, the petitioners are entitled to

succeed. Ext.P15 will stand quashed. There will be a direction to the 2nd

respondent to place the petitioners 1 to 6 within the category of "Higher

Secondary School Teacher" based on Ext.P10 staff fixation order for the

academic year 2015-16 and to grant necessary approval for the upgradation

to the post of HSST. It is also made clear that consequent to the grant of

approval the petitioners shall be entitled to the higher scale of pay with effect

from 08.07.2015, the date on which the RDD had recommended the

upgradation of the post.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

PS/13/6/2021

APPENDIX OF WP(C) 33547/2019

PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE GO(RT) NO.4417/2013/G.EDN.

DATED 23/10/2013 OF THE SPECIAL SECRETARY TO GOVERNMENT.

EXHIBIT P2 TRUE COPY OF THE GO(MS) NO.177/2014/G.EDN.DATED 04/09/2014 OF THE SECRETARY TO GOVERNMENT (I/C).

EXHIBIT P3 TRUE COPY OF THE ORDER NO.A2/8290/2014/RDD/HSE/KTM DATED 29/09/2014 OF THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ORDER NO.A2/8888/RDD/HSE/14 DATED 06/11/2014 OF THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER NO.A2/8888/RDD/HSE/14 DATED 12/11/2015 OF THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.A2/3042/2015/RDD/HSE/KTM DATED 08/07/2015 OF THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 27/11/2015 OF THE 4TH RESPONDENT MANAGER TO THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 14/08/2017 IN WP(C) NO.24813 OF 2017 OF THIS HON'BLE COURT.

EXHIBIT P9 TRUE COPY OF THE GO(RT) NO.658/2018/GEDN.DATED 12/02/2018 OF THE JOINT SECRETARY TO GOVERNMENT.

EXHIBIT P10 TRUE COPY OF THE ORDER NO.828/2018/RDD/HSE DATED 15/02/2018 OF THE 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE REQUEST DATED 26/02/2018 OF THE 4TH RESPONDENT MANAGER TO THE 1ST RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE LETTER NO.A2/1071/2017/RDD DATED 06/03/2018 OF THE 3RD RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE LETTER NO.ACD.C3/9894/2017/HSE DATED 24/03/2018 OF THE JOINT DIRECTOR (ACADEMIC).

EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 19/12/2018 IN WP(C) NO.41515 OF 2018 OF THIS HON'BLE COURT.

EXHIBIT P15 TRUE COPY OF THE GO(RT) NO.3318/2019/GEDN DATED 19/08/2019 OF THE SECRETARY TO GOVERNMENT.

EXHIBIT P16 TRUE COPY OF THE GO(MS) NO.143/2014/GEDN DATED 31/07/2014 OF THE SECRETARY TO GOVERNMENT (I/C).

EXHIBIT P17 TRUE COPY OF THE GO(RT) NO.2451/2017/GEDN DATED 24/07/2017 OF THE UNDER SECRETARY TO GOVERNMENT.

RESPONDENTS' EXHIBITS:

NIL