Allowed

C.K.Krishnakumari v. the Principal Secretary to Government

Kerala HC1 Jun 2016WP(C)/10992/2011

Case brief

AI extract

What is this about?

Petitioner, a former headmistress deployed as LPSA after school closing due to land acquisition, challenged the Government order denying protection of pay. The court found the order lacked application of mind and quashed it, directing reconsideration for pay protection within three months. Judge P.V. Asha. Kerala High Court.

What did the court decide?

Quashed the Ext.P7 order; directed Government to reconsider and grant benefit of protection of pay within three months after hearing.

C.K.Krishnakumari Vs the Principal Secretary… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938

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WP(C).No. 10992 of 2011 (Y)

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PETITIONER(S):

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C.K.KRISHNAKUMARI, PROTECTED HEADMISTRESS,

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KUNNAMTHARA UPPER PRIMARY SCHOOL, KOLLAM,

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NOW ON DEPLOYMENT IN VADAKKEVILA PANCHAYAT, LOWER PRIMARY SCHOOL, VADAKKEVILA P.O., KOLLAM, (RESIDING AT POURNAMI, CHAVARA SOUTH P.O.,KOLLAM)

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BY ADVS.SMT.K.G.BINDU

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SMT.T.S.MAYA (THIYADIL)

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RESPONDENT(S):

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1. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION (L) DEPARTMENT, THIRUVANANTHAPURAM-695 001.

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2. DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM-691 001.

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3. THE SECRETARY TO GOVERNMENT,

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GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY GOVERNMENT PLEADER SRI.P.S.SAJEEV

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 10992 of 2011 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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------------------------

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EXT.P1: TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK.

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EXT.P2: TRUE COPY OF THE CERTIFICATE DTD.25.7.1996.

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EXT.P3: TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK. EXT.P4: TRUE COPY OF THE ORDER G.O. (MS) NO.47/10/G.EDN DTD.29.3.2010 OF THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF THE APPEAL DTD.6.12.2010. EXT.P6: TRUE COPY OF THE LETTER NO.B1-20506/2001 DTD.7.2.2011. EXT.P7: TRUE COPY OF THE LETTER NO.5803/L2/2011/G.EDN DTD.17.3.2011.

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RESPONDENT(S)' EXHIBITS:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

P.V.ASHA J.

-------------------------------------------W.P.(C) No.10992 of 2011

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--------------------------------------------- Dated this the 1^st day of June, 2016

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J U D G M E N T

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The petitioner's grievance is that she is not given protection of pay consequent to closing down of the School and the orders of deploying her as LPSA while she was working as Headmistress of a UP School.

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Petitioner was working as Headmistress in the Kunnamthara Upper Primary School (hereinafter referred to as 'the School'). The land in which the School was situated was acquired by the Government for the purpose of sand mining for KMML Chavara. As a result of this, pupils started leaving from the School and the School was finally closed down. By Ext.P4 order dated 29.03.2010, Government ordered deployment of all the teachers who were working in the School to Government Schools granting the benefit of protection. Even those who commenced service on 13.07.2005, were deployed. On deployment, petitioner was posted as LPSA. Consequent

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W.P.(C) No.10992 of 2011

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to the deployment and posting in Government School, the petitioner was paid only the lower scale of pay admissible to LPSA except for the month of June, 2010.

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On the basis of representation from the petitioner, the Deputy Director of Education, sought clarification from Government as per Ext.P6 in respect of protection of pay if any, admissible to the petitioner who was drawing the pay of Headmistress of U.P. School with effect from 01.04.1995. By Ext.P7 order, the Government rejected the request saying that the petitioner was retrenched from an aided School as per Rule 22 A of Chapter V of the Kerala Education Rules and therefore, her claim for re-appointment is governed by the said provision and there is no provision which compels the Government to give appointment to a retrenched aided School teacher in a Government School. The Government also stated that the deployment of the petitioner to Government School was not out of any statutory compulsion, but only as a matter of compassion. The petitioner filed this writ

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W.P.(C) No.10992 of 2011

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petition aggrieved by the action of the Government as revealed from Ext.P7.

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The petitioner has since retired from service.

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The respondents have filed counter affidavit justifying the action of Government in Ext.P7, according to which, the petitioner cannot be granted any protection.

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Heard the learned counsel for the petitioner and the learned Government Pleader.

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From Ext.P4 order passed by the Government, it can be seen that pupils started leaving from the School consequent to the acquisition of land in which the School was situated, for the purpose of mining of sand for KMML, Chavara. Government themselves have found that the School became uneconomic on account of this acquisition. It was duly taking note of the situation, that Government found it necessary to deploy all the staff i.e., Headmistress, four U.P. School Assistants, one Part-time Hindi Teacher and one Peon who were working in the School in Government Schools. It was also observed that

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W.P.(C) No.10992 of 2011

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Headmistress who was eligible for protection benefit “is still being paid”. At the same time, it was stated that the Part-time Hindi Teacher and the Peon who entered service on 13.07.2005 and 22.08.1997, respectively were not eligible for protection benefit and they were retrenched from service. However, on the basis of her representation, Government allowed her request for protection and deployed her in the Government School by the very same order. In paragraph 4 of the order the Government stated as follows:

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“The absence of students in the Kunnumthara UP School is due to a public issue and the management and the staff of the School cannot be faulted for this”.

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It was under the above circumstances that Government issued orders closing down the School from the academic year 2010-11 onwards, with a direction that the Headmistress will be re-deployed to Government School. It was further ordered that the Part-time Hindi

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W.P.(C) No.10992 of 2011

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Teacher and the Peon of this School were granted the benefit of protection and they would also be deployed in Government School with effect from 01.06.2010. By that time, the four U.P.S.A's who were eligible for protection benefit, were already deployed in Government Schools. But contrary to all these, the Government rejected the claim of the petitioner as per Ext.P7 order, refusing to consider even the circumstances under which the School was closed down and passed Ext.P4 order merely relying on Rule 22 A of Chapter V KER, describing the deployment as their magnanimity. The Government should have found that deployment of petitioner was not account of any of her defaults. After rendering 15 years of service as a Headmistress of a UP School, she had to work as LPSA and she was compelled to draw pay in lower scale of pay. All these happened due to the closing of the School. Though these aspects were taken note of by the Government in Ext.P4, in paragraph 4, Ext.P7 order is passed in scant disregard of their own findings. Ext.P7

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W.P.(C) No.10992 of 2011

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order is evidently passed without considering factors which are relevant and reflects total non-application of mind. Petitioner who happened to be deployed to Government School not on account of her fault was liable to be given at least protection of pay when she was denied a posting at least as UPSA. The Government, which thought it fit to deploy even those with a very few years of service, is more eloquent in the compassion shown by them, when petitioner was not in fact dealt with any such consideration. Petitioner is entitled to a fair treatment from the respondents. The petitioner was drawing a pay of Rs.11,910/- in the scale of pay Rs.9590-16650. She had been drawing the scale of pay attached to the post of Headmaster of UP School since her promotion with effect from 01.04.1995. She had commenced her service in 27.11.1987 and was continuing as Headmistress of the UP School from 01.04.1995 onwards.

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In the above circumstances, Ext.P7 order is quashed. The Government will re-consider the matter,

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W.P.(C) No.10992 of 2011

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taking note of the contents of Ext.P4 and in the light of the aforesaid observations and issue appropriate orders for granting the benefit of protection of pay to the petitioner in all respects within a period 'three months' from the date of receipt of a copy of the judgment, after affording an opportunity of hearing to the petitioner.

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This writ petition is disposed of accordingly.

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Sd/- P.V.ASHA, JUDGE.

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AS/02/06/16

C.K.Krishnakumari v. the Principal Secretary to Government

Case brief

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C.K.Krishnakumari v. the Principal Secretary to Government

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