Shejidas S.S vs State Of Kerala
2023 Latest Caselaw 2165 Ker

WP(C) NO. 21927 OF 2021            1




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
      FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
                          WP(C) NO. 21927 OF 2021
PETITIONER/S:

      1        SHEJIDAS S.S
               AGED 37 YEARS
               S/O.D.SOMAN, HIGHER SECONDARY SCHOOL TEACHER,
               COMMERCE, HIGHER SECONDARY SCHOOL, THIRUVAMPADY,
               PAZHAVEED P.O., ALAPPUZHA 688 009

      2        SANTHI S.
               HIGHER SECONDARY SCHOOL TEACHER, (JUNIOR), MALAYALAM,
               HIGHER SECONDARY SCHOOL, THIRUVAMPADY, PAZHAVEED
               P.O., ALAPPUZHA 688 009

      3        RESMI GOPINATH
               HIGHER SECONDARY SCHOOL TEACHER, (COMPUTER
               APPLICATION), HIGHER SECONDARY SCHOOL, THIRUVAMPADY,
               PAZHAVEED P.O., ALAPPUZHA 688 009

               BY ADVS.
               LINDONS C.DAVIS
               E.U.DHANYA



RESPONDENT/S:

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

      2        ADDITIONAL CHIEF SECRETARY
               FINANCE (NPS CELL), DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM 695 001

      3        STATE NODAL OFFICER
               NATIONAL PENSION SYSTEM, FINANCE DEPARTMENT,
 WP(C) NO. 21927 OF 2021           2




               SECRETARIAT, THIRUVANANTHAPURAM 695 001

      4        DIRECTOR OF GENERAL EDUCATION
               D.P.I. JUNCTION, JAGATHY, THIRUVANANTHAPURAM 695 014

      5        REGIONAL DEPUTY DIRECTOR,
               HIGHER SECONDARY EDUCATION, KOTTAYAM- 686001.

      6        REGIONAL DEPUTY DIRECTOR,
               HIGHER SECONDARY EDUCATION, PALAYAM,
               THIRUVANANTHAPURAM- 695033.

      7        REGIONAL DEPUTY DIRECTOR,
               HIGHER SECONDARY EDUCATION, CHENGANNOOR- 689121.

      8        MANAGER,
               HIGHER SECONDARY SCHOOL,THIRUVAMPADY, PAZHAVEED P.O.,
               ALAPPUZHA-688009.

               BY ADV ADVOCATE GENERAL OFFICE KERALA



OTHER PRESENT:

               SMT. NISHA BOSE - SR.GP




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 21927 OF 2021               3




                       P.V.KUNHIKRISHNAN, J
                   ---------------------------------------
                     W.P.(C) No. 21927 of 2021
                    --------------------------------------
              Dated this the 10th day of February, 2023


                                 JUDGMENT

The above writ petition is filed with following prayers :

(i) "to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibit P7 to P10 to the extend it does not approving the petitioners appointment with effect from 01.06.2012 on regular basis;

ii) to Issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibits P1, P5 and P6 to the extend It does not creating the post from the academic year 2011-12 for Higher Secondary batches sanctioned during the academic year 2011-12;

iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents to approve the appointments of the petitioners with effect from 01.06.2012 on regular basis and grant monetary and service benefits to the petitioner including salary, pay fixation and increment, by considering the approved appointment date as 01.06.2012, within a time frame fixed by this Hon'ble Court;

iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents to include the petitioners in the Statutory Pension Scheme as per Part III KSR and remove them from Contributory Pension Scheme as per NPS and thereby refund the pension contribution deducted from the petitioners salary along with interest accrued to the same, within a time frame fixed by this Hon'ble Court;

iv) To grant such other appropriate writ or further relief as deemed fit and proper by this Honorable Court on the facts and circumstances of the case." [SIC]

2. The 1st petitioner is working as HSST (Higher

Secondary School Teacher) in Commerce and the 2nd and 3rd

petitioners are working as HSST (Junior) in Malayalam and

Computer Application respectively at Higher Secondary School,

Thiruvampady, Alappuzha. The case of the petitioners is that

the Government has sanctioned Higher Secondary course as

per GO (MS) No. 167/2011/G.Edn. dated 03.08.2011 from the

academic year 2011-12 onwards in the petitioners' school. On

sanction of the batches, the respondent Manager has appointed

the petitioners with effect from 01.06.2012 as per Exts.P2 to P4

appointment orders dated 31.05.2012. But the same was not

approved. Later, the Government has passed GO(MS) No.

211/2013/G.Edn dated 15.07.2013 by creating post to the

course sanctioned as above. In this juncture, it was directed the

Manager to reappoint the petitioners with effect from

07.10.2013 for approval as per the post creation orders. It is

the case of the petitioners that since the petitioners are

continuing without approval, the Manager submitted fresh

proposal by reappointing the petitioners with effect from

07.10.2013 as per Ext.P7 order. Meanwhile, the appointment

of the petitioners for the period from 28.06.2012 to the last

working day of the academic year were approved as daily

wages instead of regular basis. Subsequently, staff fixation was

held as per Ext.P11 for the academic year 2009-10 onwards. It

is submitted that from Ext.P11 it is clear that there are more

than enough periods for approving the appointment of the

petitioners on regular basis with effect from the date of

appointment itself, i.e. 01.06.2012. It is the case of the

petitioners that, if the appointment of the petitioners from

01.06.2012 are approved on regular basis, then the petitioners

will get regular salary, increment etc. considering the date of

approved service from 01.06.2012. It is also submitted that if

the petitioners' appointments are approved with effect from

01.06.2012, the petitioners will be included in the statutory

pension scheme as per Part III KSR, instead of present

contributory pension scheme as per National Pension System,

which was applicable to the appointments on or after

01.04.2013. It is the case of the petitioners that action of

approving the appointment only with effect from 07.10.2013 is

arbitrary. Hence, according to the petitioners, they are eligible

to get appointments from 01.06.2012 and thereby, to include in

the statutory pension scheme as per Part III of KSR instead of

contributory pension as per National Pension System. Hence,

this writ petition.

3. Heard the learned counsel for the petitioners and the

learned Government Pleader.

4. The counsel for the petitioners submitted that similar

issue was considered by this Court in Exts.P12 and P13

judgments. The appeal filed against those judgment s were also

dismissed by Division Bench of this Court. The Government

Pleader on the other hand submitted that those judgments were

taken up before the Apex Court and the Apex Court passed an

interim order dated 12.07.2019, in which the Apex Court stayed

the disbursal of monetary benefit pending the case.

5. This Court considered the contentions of the

petitioners and the respondents. Admittedly, the point raised by

the petitioners are covered by Exts.P12 and P13 judgments. It

is also an admitted fact that the SLP is pending against those

judgments before the Apex Court and the Apex Court passed an

interim order in the above SLP which is extracted hereunder :

"Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of the petitioners, submitted that in terms of the GO dated 24 October 2011 (Annexure P/2), 1510 posts of HSST (Junior) and 110 posts of HSST were created. Subsequently, on 23 February 2013 (Annexure P/3) sanction was granted to upgrade 1061 posts of HSST (Junior) to HSST with prospective effect. The submission is that the error of High Court was in assuming that once the posts were created, no additional sanction was required for upgradation once a teacher has crossed a workload of fifteen hours per week.

Issue notice, returnable in eight weeks.

The direction of the learned Single Judge for the disbursal of the monetary benefits shall remain stayed, until the next date of hearing."

6. A perusal of the above order will show that the Apex

Court observed that the disbursal of the monetary benefit shall

remain stayed. On all other aspects, there is no stay. In such

circumstances, this writ petition can be allowed in terms of

Exts.P12 & P13 judgments and also in terms of the order of the

Apex Court.

Therefore, this writ petition is allowed in the following

manner :

1) Exts.P7 to P10 are quashed to the extent it does not

approve the petitioners' appointment with effect from

01.06.2012.

2) There will be a direction to the respondents to

approve the appointment of the petitioners with effect

from 01.06.2012, the date of appointment of the

petitioners subject to the final decision of the case

pending before the Apex Court in SLP Nos. 15232 of

2019 and connected cases.

3) The approval orders shall be passed as expeditiously

as possible, at any rate, within two months from the date

of receipt of a copy of this judgment.

4) The monetary benefit based on the above order will

be disbursed subject to the final decision of the Apex

Court in SLP Nos. 15232 of 2019 and connected cases.

5) There will be a direction to the respondents to

include the petitioners in the statutory pension scheme

as per Part III KSR and to remove them from the

contributory pension scheme as per NPS (National

Pension System) and the same also will be subject to the

final decision of the SLP pending before the Apex Court.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 21927/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE G.O.(MS) NO.167/2001/G.EDN. DATED 3.8.2011 WITH RELEVANT PAGES OF THE LIST OF SCHOOLS IN ALAPPUZHA DISTRICT SHOWING THE PETITIONERS' SCHOOL

Exhibit P2 A COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 31.5.2012

Exhibit P3 A COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 31.5.2012

Exhibit P4 A COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 31.5.2012

Exhibit P5 A COPY OF THE G.O.(MS) NO.211/2013/G.EDN.

DATED 15.7.2013 ALONG WITH RELEVANT PAGES OF LIST SCHOOLS SHOWING THE PETITIONERS SCHOOLS NAME.

Exhibit P6 A COPY OF G.O.(MS) NO.121/2014/G.EDN.

                            DATED 3.7.2014

Exhibit P7                  A TRUE COPY OF THE ORDER NO.B4/4987/RDD/14
                            DATED 23.7.2014 OF THE 5TH RESPONDENT

Exhibit P8                  A TRUE COPY OF THE ORDER

NO.TRO/07/10831/HSE/2012 DATED 14.6.2013 OF THE 6TH RESPONDENT

Exhibit P9 A TRUE COPY OF THE ORDER NO.TRO/07/10831/HSE/2012 DATED 14.6.2013 OF THE 6TH RESPONDENT

Exhibit P10 A TRUE COPY OF THE ORDER NO.TRO/07/10831/HSE/2012 DATED 14.6.2013

OF THE 6TH RESPONDENT

Exhibit P11 A COPY OF THE STAFF FIXATION ORDER NO.B4/4881/RDD/HSE/KTM/2014 DATED 17.7.2014 OF THE 5TH RESPONDENT

Exhibit P12 A COPY OF THE JUDGMENT DATED 10.12.2015 IN W.P.(C) NO.19141/2013

Exhibit P13 A COPY OF THE JUDGMENT DATED 8.4.2019 IN WPC NO.14975/2014