Dismissed

Raji Joseph v. the State of Kerala

Kerala HC20 Mar 2013WP(C)/12192/2012

Case brief

AI extract

What is this about?

Petitioner, a substitute teacher with 10 years service, challenged a government order excluding her from protection and the teachers bank. Court directed petitioner to seek inclusion in the teachers bank and permitted her to work without salary pending consideration.

What did the court decide?

Petitioner to submit representation to include herself in teachers bank within one month; permitted to work in school without salary pending Government consideration.

Raji Joseph Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934

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WP(C).No. 12192 of 2012 (Y)

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PETITIONER(S):

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RAJI JOSEPH, AGED 42 YEARS, W/O.SAJU JOSEPH, UPPER PRIMARY SCHOOL ASSISTANT, M.H.M.A.U.P. SCHOOL, P.O. CHEEKKODE, MALAPPURAM DISTRICT.

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BY ADV. SRI.A.A.ABUL HASSAN.

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RESPONDENT(S):

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

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2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.

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3. THE DEPUTY DIRECTOR OF EDUCATION, P.O. MALAPPURAM, MALAPPURAM DISTRICT, PIN-676 505.

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4. THE ASSISTANT EDUCATIONAL OFFICER, KIZHISSERY, MALAPPURAM DISTRICT, PIN-676 505.

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5. THE MANAGER

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M.H.M.A.U.P. SCHOOL, P.O.CHEEKKODE, (VIA) CHERUVAYOOR, MALAPPURAM DISTRICT, PIN-673 645.

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6. THE HEADMASTER,

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M.H.M.A.U.P. SCHOOL, P.O. CHEEKKODE, (VIA) CHERUVAYOOR, MALAPPURAM DISTRICT, PIN-673 645.

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R1 TO R4 BY GOVT. PLEADER SMT.LILLY K.T. R5 & R6 BY ADVS. SRI.K.E.HAMZA, SRI.V.RAJASEKHARAN NAIR.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 12192 of 2012 (Y)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1-	TRUE COPY OF THE APPOINTMENT ORDER DATED 04.10.1995 ISSUED BY THE 5TH RESPONDENT.
EXT.P2-	TRUE COPY OF THE APPOINTMENT ORDER DATED 29.09.2000 ISSUED BY THE 5TH RESPONDENT.
EXT.P3-	TRUE COPY OF THE ORDER NO.B3/38125/05/K. DIS. DATED 21.01.2006 ISSUED BY THE 3RD RESPONDENT.
EXT.P4-	TRUE COPY OF THE ORDER NO. D.DIS. 10549/06 RA(3)/DPI OF THE 2ND RESPONDENT DATED 03.08.2006.
EXT.P5-	TRUE COPY OF THE ORDER IN G.O.(RT.)NO.5084/07/G.EDN. DATED 06.11.2007 ISSUED BY THE IST RESPONDENT.
EXT.P6-	TRUE COPY OF THE G.O.(MS.)NO.104/69/EDN. DATED 06.03.1969 ISSUED BY THE 1ST RESPONDENT.
EXT.P7-	TRUE COPY OF THE G.O.(MS.)NO.60/96/G.EDN. DATED 15.02.1996 ISSUED BY THE IST RESPONDENT.
EXT.P8-	TRUE COPY OF THE G.O.(P)NO.112/2001/G.EDN. DATED 26.03.2001 ISSUED BY THE 1ST RESPONDENT.
EXT.P9-	TRUE COPY OF THE G.O.(MS.)NO.113/2000/G.EDN. DATED 06.04.2000 ISSUED BY THE 1ST RESPONDENT.
EXT.P10-	TRUE COPY OF THE G.O.(MS.)NO.307/2004/G.EDN. DATED 04.10.2004 ISSUED BY THE 1ST RESPONDENT.
EXT.P11-	TRUE COPY OF THE G.O.(MS.)NO.302/2002/G.EDN. DATED 10.10.2002 ISSUED BY THE 1ST RESPONDENT.
EXT.P12-	TRUE COPY OF THE G.O.(MS.)NO.379/2004/G.EDN. DATED 16.12.2004 ISSUED BY THE 1ST RESPONDENT.
EXT.P13-	TRUE COPY OF THE G.O.(RT.)NO.1701/2007/G.EDN. DATED 17.04.2007 ISSUED BY THE 1ST RESPONDENT.
EXT.P14-	TRUE COPY OF THE G.O.(MS.)NO.347/1998/G.EDN. DATED 01.09.1998 ISSUED BY THE 1ST RESPONDENT.
EXT.P15-	TRUE COPY OF THE G.O.(RT.) NO.2673/2002/G.EDN. DATED 13.08.2002 ISSUED BY THE 1ST RESPONDENT.

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2/-.........

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WP(C).No. 12192 of 2012 (Y)

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EXT.P16-	TRUE COPY OF THE JUDGMENT IN W.P(C)NO.678/2008 DATED 07.09.2009 PASSED BY THIS HON'BLE COURT.
EXT.P17-	TRUE COPY OF THE WRITTEN ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT AT THE TIME OF HEARING SCHEDULED ON 17.11.2009.
EXT.P18-	TRUE COPY OF THE GOVERNMENT ORDER IN G.O.(RT.) NO.426/2010/G.EDN. DATED 27.01.2010 ISSUED BY THE 1ST RESPONDENT.
EXT.P19-	TRUE COPY OF THE ORDER DATED NIL ISSUED BY 5TH RESPONDENT MANAGER.
EXT.P20-	TRUE COPY OF THE INTERIM ORDER IN W.P(C)NO.5720 OF 2010 DATED 22.02.2010 PASSED BY THIS HONOURABLE COURT.
EXT.P21-	TRUE COPY OF THE G.O.(P)NO.199/2011/G.EDN. DATED 01.10.2011 ISSUED BY THE GOVERNMENT OF KERALA.
EXT.P22-	TRUE COPY OF THE SAID REPRESENTATION DATED 11.10.2011 SUBMITTED BY THE BEFORE THE 4TH RESPONDENT.
EXT.P23-	TRUE COPY OF THE LETTER NO.60930/J2/11/G.EDN. DATED 25.10.2011 ISSUED BY THE GOVERNMENT OF KERALA.
EXT.P24-	TRUE COPY OF THE JUDGMENT IN W.P(C)NO.5720 OF 2010 DATED 17.11.2011 PASSED BY THIS HONOURABLE COURT.
EXT.P25-	TRUE COPY OF THE ORDER IN G.O.(RT.)NO.2195/2012/G.EDN. DATED 14.05.2012 ISSUED BY THE GOVERNMENT OF KERALA.
EXT.P26-	TRUE COPY OF THE ORDER IN G.O.(RT) NO.2958/2012/G.EDN. DATED 25/06/2012 ISSUED BY THE 1ST RESPONDENT.
EXT.P27-	COPY OF THE ORDER IN G.O.(RT) NO.5100/2012/G.EDN. DATED 25/10/2012 ISSUED BY THE 1ST RESPONDENT.
EXT.P28-	COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER OF EDUCATION, KERALA.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

A.M.SHAFFIQUE, J.

---------------------------------------------------W.P.(C) No. 12192 of 2012 - Y

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--------------------------------------------------Dated this the 20^th March, 2013

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J U D G M E N T

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The Petitioner has a long 10 years of service as a substitute UPSA teacher in the school managed by the 5^th respondent. Her appointment in the leave vacancy was approved by the Asst.Educational Officer (A.E.O) as per Exts.P1 and P2, that is upto 28.9.2005. Thereafter there was a division fall as a result of which the petitioner lost her employment. But it seems that she was continuing in service based on interim orders passed by this Court in various writ petitions. The petitioner claimed protection since she was working in the school in a leave vacancy for more than 10 years. Her request was turned down by the authorities concerned as per Exts.P3 and P4 and finally by the Government as per Ext.P5 order. The petitioner had a complaint that several

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W.P.(C) No. 12192 of 2012 - Y

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orders had been passed by the Government giving protection to similarly placed persons and Exts.P6 to P15 evidences such orders. Ultimately, the petitioner made a claim by filing W.P.(C) No. 678/2008 before this Court which resulted in Ext.P16 judgment. This Court directed the Government to consider the claim of the petitioner based on the document relied upon by the petitioner including G.O.(P) No. 175/99/Gl.Edn. dated 26.07.1999 and G.O.(P) No. 240/99/Gl/Edn. 29.9.1999. The contention of the petitioner was that persons who were having lesser period of service were granted protection by the Government by the said orders. Petitioner also relied upon the specific case of one Moideen kutty, who was granted benefits as per Ext.P15 order of the Government as a special case. However, this Court therefore directed the Government to re-consider the matter. The Government thereafter

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W.P.(C) No. 12192 of 2012 - Y

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passed Ext.P18 order reiterating the contentions urged and holding that the Government orders referred above were not applicable to the petitioner as those were applicable only to teachers who were working against the regular division vacancy and as per the pupil strength in the school, there is no vacancy to provide the petitioner regular appointment with effect from 15.7.2005 even after applying 1:40 ratio. Therefore, the Government came to the conclusion that the petitioner being a leave substitute is not eligible for any protection and she is not eligible to be retained with effect from 15.7.2005. Aggrieved by Ext.P18 order of the Government, the petitioner preferred writ petition W.P.(C) No. 5720/2010 and the petitioner was permitted to continue in service without salary by an interim order of this Court. Ext.P24 is the judgment in W.P.(C) No. 5720/2010. After referring to the earlier judgment at

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W.P.(C) No. 12192 of 2012 - Y

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Ext.P16, this Court directed the Government to reconsider the matter as it was an instance where the Government by G.O. (P) No. 119/2009/G.Edn. dated 01.10.2011 had taken a decision to grant protection to all the teachers irrespective of whether they were appointed against regular vacancies or against leave vacancies. This matter was directed to be considered

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by this Court in Ext.P24 judgment which finally resulted in Ext.P25 which is also impugned by the petitioner. In Ext.P25, Government had come to the conclusion that the petitioner is not entitled to seek protection as envisaged under the Government Order No. G.O.(P) No. 175/99/GE dated 29.9.1999, but as a special case, it was observed that the Manager of the school shall appoint the petitioner in the next arising vacancy.

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The complaint of the petitioner is with reference

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W.P.(C) No. 12192 of 2012 - Y

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to Ext.P25. Since she was having regular service in the leave vacancy from 12.9.1995, it was approved for a period of 10 years by the educational authorities, she should be given protection of service and despite the fact that there was no approval for being in service after 2005, by virtue of interim orders passed by this Court, she was continuing in service and therefore at least in the teachers bank prepared by the Government in terms of subsequent notification, her name also should have been included so that she will be entitled to get service benefits, if at all, she is appointed on a regular vacancy.

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Reference is also made to Exts.P26 and P27, certain orders passed by the Government in relation to persons, according to the petitioner, similarly placed who were given protection by including them in the teachers bank prepared by the Government.

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W.P.(C) No. 12192 of 2012 - Y

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Though the petitioner challenges various

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orders passed by the educational authorities rejecting her request for appointment on a regular basis, in so far as the Government had already taken a decision after directions issued by this Court on several occasions, I

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do not think that it would be possible for the petitioner to seek any relief in the matter. However, the learned counsel for the petitioner submits that if Government includes the petitioner in the teachers bank prepared by it, definitely, the petitioner being a person who had served the school for such a long period will be entitled to the service benefits based on such extended service. The learned Government Pleader appearing on behalf of the Government submits that Ext.P26 and P27 had been passed with reference to persons who are not similarly placed like that of the petitioner and therefore the benefit, if any, given in

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W.P.(C) No. 12192 of 2012 - Y

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Exts.P26 and P27 cannot be extended to the petitioner. That apart, it is contended that the petitioner is not entitled to get any benefit as per the Government Orders, in view of the fact that the petitioner was only a substitute teacher and her appointment was not approved after 28.9.2005 and that she was continuing in service only on the basis of various interim orders passed by this Court. Therefore, according to the learned Government Pleader, the petitioner is not entitled to be included in the teachers bank.

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The facts being so, it is relevant to note that in Ext.P15, the Government had given certain consideration to certain persons as a special case, though they did not have 10 years service in the leave vacancy. But in Ext.P23 order which is impugned, it is seen that the Government had extended certain benefits to the petitioner by directing her to be

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W.P.(C) No. 12192 of 2012 - Y

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appointed in the next arising vacancy. This is the best order the petitioner could have asked for under these circumstances.

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But the petitioner has a genuine complaint. By such an order her service for the preceding years will not be taken into consideration unless she is included in the teachers bank prepared by the Government. That being the situation, apparently in Ext.P25 order the Government had not considered the claim of the petitioner to be included in the teachers bank. In such circumstances, it is all the more necessary that the Government has to consider the matter regarding the petitioner's name to be included in the teachers bank in addition to the benefits that she had obtained as per Ext.P25.

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In the result, the writ petition is disposed of as

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follows:

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W.P.(C) No. 12192 of 2012 - Y

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(i) The petitioner shall submit a representation to include herself in the teachers bank based on the relevant Government orders within a period of one month from today and the Government shall consider and pass appropriate orders as early as possible.

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(ii) Until consideration of the matter by the Government, the petitioner should be permitted to work in the school without drawing any salary.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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rka

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/true copy/

Raji Joseph v. the State of Kerala

Case brief

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Raji Joseph v. the State of Kerala

Case brief

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