Dismissed

State of Kerala v. B.Lalitha

Kerala HC9 Jul 2013WA/299/2013

Case brief

AI extract

What is this about?

Two writ appeals were filed challenging an order denying salary and service benefits to Full Time Menial staff. The court held that since petitioners were appointed against clear vacancies created by promotion of other staff, they were entitled to salary and service benefits from the date of their appointment, and the contesting cases were disposed of accordingly.

What did the court decide?

Set aside orders denying salary and benefits; petitioners entitled to salary and service benefits from date of appointment.

State of Kerala Vs B.Lalitha — Pension and Retirement Benefits | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935

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WA.No. 299 of 2013 () IN WP(C).25296/2007

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AGAINST THE JUDGMENT IN WP(C) 25296/2007 DATED 13-08-2012

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APPELLANTS/RESPONDENTS 1 TO 3:

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

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THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM.

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THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISRICT EDUCATIONAL OFFICER MAVELIKARA.

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BY GOVERNMENT PLEADER SRI.P.I.DAVIS

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RESPONDENTS/PETTITIONERS AND 4TH RESPONDENT:

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B.LALITHA,

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W/O VIJAYAKUMAR, PALACKAL HOUSE, KUTTAMPEROOR P.O. MANNAR (PEON N.S.HIGHER SECONDARY SCHOOL

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MANNAR)689623.

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AJITHKUMAR M.C.,

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S/O MADHAVAN PILLAI, CHITTACKATTU HOUSE, MANNAR (PEON NS HIGHER SECONDARY SCHOOL, MANNAR)689 622.

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J.SREEKALA,

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W/O AJITH KUMAR, SAJI BHAVAN, KURATHIKKAD MAVELIKKARA. (FULL TIME MENIAL

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NS HIGH SCHOOL FOR GIRLS MANNAR)690 101.

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B.PRAMODKUMAR,

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S/O BHASKARA PANICKER, KELATHIL HOUSE, ERAMATHOOR MANNAR (FULL TIME MENIAL, NS HIGH SCHOOL FOR GIRLS MANNAR)689622.

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THE MANAGER,

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N.S. HIGHER SCHOOL, TTI & GIRLS HIGH SCHOOL MANNAR 689 622.

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R1 TO 4 BY ADV. SRI.S.SUBHASH CHAND

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R1 TO 4 BY ADV. SRI.SHINDO VARGHESE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09-072013, ALONG WITH WA. 607/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MANJULA CHELLUR,C.J. &

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K.VINOD CHANDRAN, J.

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= = = = = = = = = = = = = = = = W.A.Nos.299 of 2013 & 607 of 2013

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= = = = = = = = = = = = = = = = = = = = = Dated this the 9^th day of July, 2013

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JUDGMENT

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Manjula Chellur,CJ

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The appellants in W.A.No.607/2013 were the writ petitioners. They approached the learned Single Judge on the ground that they had worked as Full Time Menial staff (FTM ) from 02.08.1999 onwards. They seek the following releifs:-

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“i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P9 order issued by respondent No.1.

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ii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P5 order to the extent the same treats the petitioners as new entrants in service with effect from 28.03.2003 and excludes the service of the petitioners from 02.08.1999 to 27.03.2003 for all service benefits including pay fixation benefits under 2007 pay revision.

¶39

iii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to count the entire period of service of the petitioners from 2.08.1999

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& 607 of 2013

onwards covered by Exts.P1 to P4 appointment orders for the purpose of granting increments, service benefits and for fixation of pay in respect of 2006 pay revision within such time as this Hon'ble Court may deem fit and proper in the interest of justice and

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iv) to mould and grant such other reliefs as this Hon'ble Court shall deem just and proper in the interest of justice, including costs.”

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According to the petitioners, at the time of approval of appointment of four last grade employees as Laboratory Assistants by transfer in the Higher Secondary wing was pending consideration, the Higher Secondary section being different from each other, there was no justification for the authorities to approve their appointment as Full Time Menials from 28.03.2003 and it ought to be from 02.08.1999 onwards. So far as factual material, they claim that they had worked as Full Time Menial staff on the basis of approval granted to them and respondent No.1 has no authority to direct the 2^nd respondent to cancel the approval already granted as per

W.A.Nos.299 of 2013

& 607 of 2013

Ext.P9.

The question or controversy arose when the Manager of the N.S.S Higher Secondary School, Mannar sought for clarification or informed the authorities that the Management had appointed, by transfer, four Laboratory Assistants from the cadre of Full Time Menial and in the transfer vacancies these appellants were appointed as Full Time Menials. Thereafter the DEO by virtue of Ext.P5 order proceeded to pass orders opining that as five substitutes were already approved with effect from 02.08.1999 onwards, by the then DEO, as there were established vacancies to provide them. The approval granted to the appointments of the above five substitutes was considered to be regularized with effect from 28.03.2003 onwards in all aspects.

¶51

This came to be challenged in a revision before the Government that ended in Ext.P9 dated 28.07.2007. In this order of the Government it is opined that there was double

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& 607 of 2013

payment from the exchequer for a period from 02.08.1999 to 28.02.2002, since the promotees were given approval only with effect from 28.03.2003. The request of the petitioners to release salary from 1.03.2002 to 27.03.2003 cannot be entertained as the promotes were paid salary and allowances in the lower grade that they had held earlier. It is also opined the double payment and loss sustained by the exchequer by way of double payment has to be made good. In order to make good the loss it shall be recovered from the DEO Mavelikkara, who approved the appointment in the absence of established vacancies. Aggrieved by this order, the present writ petition is filed by referring to various orders of the Government right from 1991 to 2005.

¶56

The learned Single Judge, after referring to the contentions raised by the writ petitioners with reference to competency of Educational Officer as per Rule 8 of Chapter XIVA of KER, since Government did not file any counter

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& 607 of 2013

affidavit, only based on Exts.P5 and P9, that is orders of the DEO at Ext.P5 and Revisional order at Ext.P9, proceeded to opine that as apparently the vacancies had arisen on account of four persons being appointed as Laboratory Assistants but their approval was made only with effect from 28.03.2003 and for no fault of the writ petitioners who were made to work since 1999, they should not be put to disadvantage and there cannot be any denial of salary for an intervening period. Opining that denial of the salary to the petitioners during the said period was illegal, the learned Single Judge further proceeded to opine that they will not be entitled to get any other benefit which includes regularization of service from 02.08.1999 onwards.

¶61

Aggrieved by this denial of benefits, the petitioners approached this Court in Writ Appeal No.607/2013 and the Government aggrieved by the direction to pay the salary from 01.03.2002 to 27.03.2003 have come up before this Court in

W.A.Nos.299 of 2013

& 607 of 2013

Writ Appeal No.299 of 2013. The entire issue revolves round the fact whether there were any vacancies existed on account of Full Time Menials being promoted as Laboratory Attenders after sanction/commencement of Higher Secondary Schools in science faculty for the academic year 1998-99 onwards so as to allow the manager concerned to appoint the writ petitioners as Full Time Menials in the vacancies created by virtue of promotion by transfer to the post of Laboratory Attenders. In order to appreciate the controversy, various orders have to be referred to and then understand what was the stand of the Government right from 1991, once they decided to approve or sanction Higher Secondary School in Science classes in the existing Government and aided schools.

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By GO(Ms)No.18/91/G.Edn dated 01.02.1991, the Government ordered introduction of Higher Secondary course (Plus Two courses) in 31 Government Schools during the year 1990-91 and in the aided sector in a few Government/Private

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& 607 of 2013

High Schools during the year 1991-92 such courses were approved. It is not in dispute that in this notification itself minimum requirements to be fulfilled by the applicant-school is mentioned which includes the minimum site area, type of buildings, furniture, class room accommodation etc. and so far as non teaching staff, it says for Science Group (Physics, Chemistry, Botany and Zoology) four Laboratory Attendants (one in each laboratory) are required.

¶71

Subsequently on 27.09.1995, Director of Higher Secondary Education issued a Circular by G.O.(M.S.) No.01/10711/HSE/94 prescribing the duty time and functions to be attended to by Laboratory Attenders in each lab pertaining to different subjects. By virtue of this Circular, they have to attend the office between 9.15 am to 4.30 pm with an interval of 45 minutes for lunch. During these hours, they should be present in the laboratory all the time. They were responsible for maintenance, upkeep of equipment and

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& 607 of 2013

apparatus in the Lab and also store room. They were also given the responsibility of models or chairs to the room and take them back to the laboratory at the end of the class. They were required to prepare chemical solutions and store in suitable container or bottles with tables, as directed by the teacher in charge of practicals. They were given the responsibility of ensuring that all gas connections and water outlets/taps in the laboratory are properly taken care of.

¶76

Then the next Government Order GO(Ms) No.162/98.G.Edn. dated 13.5.1998 came, which refers to publication of the provisional list of Government and aided schools in which Higher Secondary courses proposed to be started in the year 1998-99. The school where the petitioners were appointed were also one of the schools shown in the provisional list for the year 1998-99. Those schools were permitted to open Standard XI during the academic year 1998-99 and the last date to submit applications of the

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& 607 of 2013

students was fixed as 30.06.1998. It also indicate how the post of Higher Secondary teachers in Government Higher Secondary Schools and aided Higher Secondary Schools will be filled up with reference to reservation for appointment from qualified High School Assistants etc. By virtue of this notification, what we notice is with the academic year 199899 the school in question was allowed to open Standard XI and students were admitted to the school for that academic year.

¶81

Then comes the next Government Order G.O.(Ms) No.260/99/G/Edn. dated 26.10.1999. By virtue of this the permission to start the classes in Higher Secondary courses definitely would mean that all the necessary infrastructure to be furnished by the schools in question which includes establishment of laboratories and other facilities including the staff to maintain the laboratories and also to other functions as stated above. This Government Order dated

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& 607 of 2013

26.10.199 refers to the letter addressed to the Government by Director Higher Secondary Education explaining the factual situation and requesting the Government to fix the method of appointment and qualification for the post of Lab Attenders in Government aided Higher Secondary Schools. After considering the request of the Director, the Government was pleased to order that the method of appointment of 25% of the total posts are to be filled up by promotion from among qualified Class IV employees so far as Lab Attenders in the Government and aided Higher Secondary Schools. They also prescribe minimum qualification for appointment of Lab Attenders by direct recruitment.

¶86

We are not concerned with that at this stage. So far as the appointment of 25% of the total posts, they would say, it has to be strictly on the basis of seniority and we are not concerned with such issue as well. We refer to this order only to understand what exactly was the order of the

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& 607 of 2013

Government as early as 26.10.1999. We note that by virtue of this order so far as the Lab Attenders 25% was allowed to be filled up by promotion from among qualified Class IV employees in the schools. Admittedly in the school in question, the four persons noted at Ext.P5, who were Full Time Menials, were appointed as Laboratory Attenders thereby creating vacancies in the post of Full Time Menials in the High School section. The writ petitioners, according to the avermnets in the writ petition, were appointed in these vacancies of Full Time Menials after promotion by transfer of the earlier ones as Lab Attenders.

¶91

Then comes the next order issued by the Director Higher Secondary Education No.Acd.B1-2772/HSE/2000 dated 16.06.2000. This refers to earlier G.O. dated 26.10.1999 by which 25% of the total posts of the Lab Attenders by promotion was permitted and it also refers to the information received by the Director from various aided Higher Secondary Schools represented by the Principals regarding the nonpayment of

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& 607 of 2013

salary for the reason that approval was not granted from the Director’s Office for the appointment of Laboratory Attenders for want of sanction from Government for creation of posts. It further says pending fixation of staff for the year 1999-2000 and approval of appointment, as a temporary arrangement,the Principals of Higher Secondary Schools were allowed to prepare the bills claiming the pay and allowances last drawn as Class IV employees of Lab. Attenders of aided schools who were appointed under 25% category strictly on seniority basis who come under the purview of Government Order dated 26.6.1999. This would indicate that the Full Time Menials, who were promoted as Laboratory Attenders though worked in the post of Laboratory Attenders, their pay and allowances shall be paid as last drawn as Class IV employees that is on par with the Full Time Menials.

¶96

Subsequent to this, there were two Government Orders creating two posts of Laboratory Attendants and two more supernumerary posts in the place of Laboratory

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& 607 of 2013

Attendants. This came by virtue of special rules introduced in Chapter 32 indicating method of appointment and qualifications of teachers and non teaching staff in aided Higher Secondary Schools. This was published on 12.11.2001. Therefore it would come into effect from that date. So far as non-teaching staff, it is category 6 which says the appointment is by direct recruitment and by transfer from among the qualified last grade employees in the schools under the educational agency. The note further says, the ratio is of 25% by transfer and 75% by direct appointment. At this stage so far as Laboratory Attenders the staff pattern did not indicate Laboratory Attenders post but, Laboratory Assistants was indicated and the method of appointment is also as indicated for the appointment of Laboratory Assistants in the earlier orders referred to above.

¶101

Subsequently another Government Order in 2003 came to be made by virtue of the order dated 28.03.2003 in GO(MS) 79/2003 G Edn, the two posts of Lab Assistants came to be sanctioned in the scale of pay of ₹2650-4150 in each

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& 607 of 2013

Government/Aided Higher Secondary Schools which have science batches and where no posts of Laboratory Assistants were created previously.

¶106

This is followed by another Government Order; GO No.MS 299/2004/G.Edn dated 24.09.2004. This is to accord sanction of supernumerary posts of Laboratory Assistants in the Higher Secondary Schools in the aided sector having Science batches subject to a maximum of 4 Laboratory Assistants in each school. It further says, this was to regularise the appointment made till 28.02.2003.

¶107

Thereafter, by virtue of Government Order No.G.O. (Ms)No.299/2004/G.Edn dated 24.09.2004 what we understand is by virtue of this order the regularisation of appointments of laboratory assistants made till 28.02.2003 came into effect. One pertinent factual issue has to be mentioned here. Till special rules came into effect in 2001, there was no post of Laboratory Assistant and the staff pattern indicated all along till special rules came into existence was Laboratory Attenders. Whatever

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& 607 of 2013

the method of recruitment by virtue of special rules in 2001 came to be introduced was the same method adopted when Higher Secondary Schools in science course were permitted in the aided schools even in respect of Laboratory Attenders. Subsequent to the Special Rules, by virtue of two Government Orders referred to above totally maximum of four Laboratory Assistants came to be permitted as no Laboratory Attenders finds a place in the special rules. It is clear that Laboratory Assistants refer to in the special rules is nothing but Laboratory Attenders that was in existence as per the staff pattern way back in 1991. Therefore, when Government Order dated 28.03.2003 creating supernumerary posts of Laboratory Assistants came into effect , it was made clear that none of the aided Higher Secondary Schools were permitted to have more than maximum of four Laboratory Assistants in order to regularise the appointments made till 28.03.2003. This would further clarify the position that if Laboratory Attendants were already appointed on temporary basis, by virtue of earlier notification of the

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& 607 of 2013

Government, the regularisation would be restricted to a maximum number of four Laboratory Assistants even if the school were to have more than four Laboratory Attenders. So far as Laboratory Assistants, we have no doubt that the earlier Laboratory Attenders were considered as the Laboratory Assistants by virtue of special rules and the subsequent Government Orders creating two posts and later two more supernumerary posts and also regularising four posts of Laboratory Assistants which were made prior to 28.03.2003. Subsequent to this Government Order, the Government came up with another Government Order dated 26.11.2004. This Government Order, after referring to earlier Government Orders dated 28.03.2002 and 29.04.2004, further reiterates the position that the Laboratory Assistants of Higher Secondary School of aided school having science batches can have maximum of four Lab Assistants in each school to claim regularisation of the posts made till

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& 607 of 2013

28.03.2003. Further orders were issued as to how the appointments made against the supernumerary posts would be regularised.

¶120

In the present case the question of appointing any Lab Assistant against supernumerary post did arise as four Laboratory Attenders were appointed as early as 1999 by the school in question. Then coming to the position of the present writ petitioners on promotion of the Full Time Menials as Laboratory Attenders who shall be termed as Laboratory Assistants, we have to refer to the notification which came in 2005 dated 07.05.2005 in GO(MS)145/2005. This Government Order is very relevant so far as the regularisation of Laboratory Attenders (Laboratory Assistants) with effect from the date of their appointments which reads as under:-

¶121

“As per the Government Order read as 2^nd paper above sanction was accorded for the creation of supernumerary posts of Lab Assistants in the Aided Higher Secondary Schools having Science batches for regularising the Lab Assistants appointed by the Managers till 28.03.2003 in addition to the two sanctioned posts subject to a maximum of four Lab Assistants in each school. Regarding the

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& 607 of 2013

method of appointment for the post of Lab Assistants, as provided in the Special Rules (Chapter XXXII of KER) 25% of the total posts of Lab Assistants shall be filled up by transfer from among qualified Class IV employees in the schools under the Educational Agency and the remaining 75% by direct appointment. The Director of Higher Secondary Education in the letter read as 4^th paper above has brought to the notice of Government that some of the Managers of Aided Higher Secondary Schools have filled more than 25% of the post of Lab Assistants by promotion and in some schools even the four posts were filled up from the qualified Class IV employees. The Director of Higher Secondary Education has requested clarification with regard to the approval of those Lab Assistants who were appointed by promotion in more than 25% of the total posts.

¶126

Government have examined the matter in detail. The provision made in the Special Rules to fill up 25% of posts by promotion is for providing promotional chance to the qualified last grade employees, which is a minimum requirement and is not a restriction to minimize the promotion.

¶127

In the circumstances Government order that the appointments already made by the Managers of Aided Higher Secondary Schools in the posts of Lab Assistants by promotion in more than 25% of the total posts so far will be approved subject to all other conditions specified in the Government Orders read above. In future the proportion for categories specified in references second cited will be scrupulously followed.”

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& 607 of 2013

So far as 3^rd paragraph it is very clear that in the post of Lab Assistants by promotion only if more than 25% of the total posts so far, will be approved subject to all other conditions specified in Government Order read above.

¶132

At the time of commencement of Higher Secondary School Science courses the staff pattern indicated was only Laboratory Attenders. By virtue of Government Orders, if at all the Manager of the School was entitled to appoint any Full Time Menial by transfer to the post of Laboratory Attender if 25% was permissible, it would come to only one post. Apparently 4 persons who were Full Time Menials were appointed as Laboratory Attenders by transfer. The maximum number of four permitted were all filled up by transfer method and no person was appointed by direct recruitment. There is no dispute so far as this and there is no claim with regard to any of the benefits extended to Lab Assistants. We are concerned with the vacancies that resulted on account of

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& 607 of 2013

transfer of Full Time Menials to the post of Laboratory Assistants. By virtue of appointment by transfer of Full Time Menials as Laboratory Attenders, four Full Time Menial posts became vacant in the school concerned against which these four persons were appointed.

¶137

It is not in dispute that these four persons did work in the school as Full Time Menials right from 02.08.1999 till date. By virtue of Ext.P5 order and the order of revision at Ext.P9 the respondent authorities were under the impression that the four Full Time Menials who were taken as Laboratory Attenders by transfer as well as these four writ petitioners who were appointed as Full Time Menials were paid for the same post of Full Time Menials resulting in double payment, so far as the post of Full Time Menials. The earlier orders of the Government clearly indicated that though Full Time Menials were promoted by transfer as Laboratory Attenders/Assistants they shall be paid as the Last Drawn

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& 607 of 2013

Salary, that is, what they are drawing prior to their transfer as Laboratory Attenders. In other words they were discharging duties as Laboratory Assistants and their salary was restricted to that of Full Time Menials in Class IV status. Therefore, they cannot be treated as Class IV employees continued to discharge the duties of Full Time Menials. They were only drawn salary of a Full Time Menial but discharged their duties as Laboratory Assistances. By virtue of their transfer, four more persons were appointed as Full Time Menials and they had to be paid salary payable to Full Time Menial as well. However, as noticed by the respondentauthorities though these four writ petitioners were paid salary and allowances of Full Time Menial from 02.8.1999 to 28.02.2002 for the reasons known the Manager he did not seek salaries from 01.03.2002 to 27.03.2003, therefore, they were not paid the salaries from 1.03.2002 to 27.03.2003. Ext.P5 refers to the impression of the Manager why he did not

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& 607 of 2013

make the bill for salary of these writ petitioners between 01.03.2002 and 27.03.2003. But the authorities were under the impression that it would amount to double payment for the same post.

¶146

According to the learned Single Judge, as they have discharged their work in the respondent-school they should be paid from 01.03.2002 to 27.03.2003 but no other benefits. We are of the opinion, this may not be a correct position as these writ petitioners were appointed against clear vacancy of Full Time Menial as by transfer Full Time Menials already in service were taken as Laboratory Attenders in the Higher Secondary School from High School and they are known as Laboratory Assistants now. For no fault of these writ petitioners who are appointed in the High School as Full Time Menials why they should be denied the other benefits that is available to them in respect of the service rendered as Full Time Menials from 02.08.2003 to 27.03.2003 apart from the

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payment of salary is not understandable.

¶151

In that view of the matter, we are of the opinion, the appeal filed by the State in W.A.No.299/2013 fails and the appeal in W.A.No.607 of 2013 is allowed, resulting setting aside the orders at Exts.P5 and P9 and modifying the orders of the learned Single Judge in tune with the judgment in the appeals.

¶152

MANJULA CHELLUR, CHIEF JUSTICE

¶153

K.VINOD CHANDRAN, JUDGE

¶154

sj11/7

State of Kerala v. B.Lalitha

Case brief

What is this about?

What did the court decide?

State of Kerala v. B.Lalitha

Case brief

What is this about?

What did the court decide?

What the court decided

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