Partly allowed

Sreekala S. v. State of Kerala

Kerala HC19 Dec 2016WP(C)/17477/2012

Case brief

AI extract

What is this about?

The court held that a Government Order re-examining teacher post adjustments from 1998 was unwarranted. The court directed the Director of Public Instruction to hear petitioners and other affected parties regarding appointments and promotions from 1998-1999, specifically considering claims for notional promotion and relative seniority, and ordered the disputed Government Order set aside.

What did the court decide?

Exhibit P20 order and consequential orders set aside; DPI directed to hear affected parties and pass orders within one month regarding 1998-1999 appointments and seniority.

Sreekala S. Vs State of Kerala — 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 MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938

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WP(C).No. 17477 of 2012 (H)

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PETITIONER(S):

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SREEKALA S.,

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H.S.A SIVAGIRI HIGHER SECONDARY SCHOOL, SREENIVASAPURAM, VARKALA.

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BY ADVS.SRI.M.BALAGOVINDAN

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SRI.T.K.ANANDA PADMANABHAN

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RESPONDENT(S):

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

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2. DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTITUTION, PUBLIC OFFICE, TRIVANDRUM-695 001.

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3. CORPORATE MANAGER,

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S.N.D.S TRUST SCHOOL, SIVAGIRI MUTT, VARKALA-695 141.

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4. SATHIMOL K.M., H.S.A SOCIAL STUDIES, A.V.H.S. KURICHI, KOTTAYAM-686 549.

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R1 & R2 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R3 BY ADVS. SRI.LIJU M.P.

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SRI.SAJAN VARGHEESE K.

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R4 BY ADV. SRI.V.PHILIP MATHEW

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2016, ALONG WITH WPC. 16357/2013 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 17477 of 2012 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1	TRUE COPY OF THE SENIORITY LIST AS ON 1-1-2011
EXT.P2	TRUE COPY OF THE JUDGMENT IN O.P 18693/99 DATED 19-03-2004
EXT.P3	TRUE COPY OF THE ORDER G.O(RT) 4948/2004 GL.ED. DATED 19-11-2004
EXT.P4	TRUE COPY OF THE JUDGMENT IN WPC 33617/2008
EXT.P5	TRUE COPY OF THE CIRCULAR DATED 10-02-1995
EXT.P6	THE COMMUNICATION ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION IN THIS REGARD DATED 16-3-2012
EXT.P7	TRUE COPY OF THE COMMUNICATION DTD.4.1.2012.
EXT.P8	TRUE COPY OF THE COMMUNICATION DATED 17-03-2012 RECEIVED BY THE PETITIONER.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).Nos.17477 of 2012, 16357, 18259,19061, 23715 of 2013, 5887 of 2015 & 8343 of 2016 = = = = = = = = = = = = = = = Dated this the 19^th day of December, 2016

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JUDGMENT

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1.Heard the learned counsel for the petitioners, learned counsel appearing for the Manager, learned Government Pleader as well as learned counsel for the contesting respondents.

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Since W.P.(C).No.16357 of 2013 contains more substantive pleadings, the documents and parties are being referred to as arrayed in the said writ petition. W.P.(C).No.16357 of 2013 is filed challenging Exhibit P20 order passed by the Government allegedly in implementation of the directions contained in an earlier Government Order, Exhibit P11.

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The petitioner and the contesting respondents are teachers appointed under the 5^th respondent Manager in two schools, i.e., A.V.H.S.S., Kurichy and Sivagiri High School, Varkala.

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W.P.(C).No.17477/12 & con.cases

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The petitioner contends that she had approved service as UPSA w.e.f. 27.09.1994 and was appointed in a regular vacancy from 04.06.1996 onwards. She was promoted as HSA (Social Studies) in leave vacancy in 1996-1997 and in regular vacancy on 02.06.1997. On the ground of reduction of post, she was reverted as UPSA on 14.07.1998. Her claim is that there was a post of HSA (Mathematics) in A.V.H.S.S., Kurichy w.e.f. 14.07.1998 which was filled up by appointing S.Sreekala, HSA (Mathematics) and that the petitioner should have been adjusted against the said post. By Exhibit P9 order, the Manager had attempted to resolve the issue by retaining S.Sreekala as HSA (Mathematics) in A.V.H.S.S, Kurichy and notionally promoting the petitioner as HSA (Social Studies) w.e.f. 15.07.1998 without arrears of pay. Her appointment as HSA (S.S.) was regularly made w.e.f. 15.10.2003. This arrangement was approved by Exhibit P10. However in a review filed by S.Sreekala, Exhibit P11 Government Order was issued on 27.09.2010 cancelling the approval already granted by Exhibit P10, but directing the District Educational Officer to re-examine the issue with regard to the retention of the

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W.P.(C).No.17477/12 & con.cases

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petitioner as HSA (Social Science) in the additional division sanctioned during 1998-1999 in Sivagiri H.S.S., Varkala on the basis of staff fixation, applying the subject ratio specified in Circular dated 10.05.1995. It is submitted that thereafter, the DEO had not passed orders on the plea that A.V.H.S.S, Kurichy and Sivagiri H.S., Varkala were under separate DEOs and the DEO was incompetent to pass such orders. In the above circumstances, the DPI had been requested to pass orders. However, without any direction from this Court, it is contended that the Government had issued Exhibit P20, without jurisdiction. It is contended that the claim of the petitioner for retention on the basis of Exhibit P9 order, which could be done without disturbing any other teacher, should have been examined by the DEO or the Director as provided in Exhibit P9 and the refusal on the part of the DEO or the DPI to consider such request was illegal. In the alternative, it is contended that the DPI ought to have considered the claim of the petitioner for retention as provided in Exhibit P11 and the Government should not have the usurped jurisdiction and issued Exhibit P20 order.

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W.P.(C).No.17477/12 & con.cases

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4.It is contended by the learned counsel for the petitioner in W.P.(C).No.16357 of 2013 that Exhibit P11 order of the Government, which was passed in a review filed against Exhibit P10, much later than the time prescribed for filing a review, is incompetent and the approval granted to Exhibit P9 arrangement by Exhibit.P10 order should be allowed to continue. It is further contended that W.P.(C).No.5887 of 2015 is filed by a teacher appointed as UPSA in the vacancy caused by the notional promotion of the petitioner and that her appointment was not approved only because of the pendency of the dispute with regard to the notional appointment of the petitioner from 15.07.1998.

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5.The learned counsel for the 7^th respondent argued that Exhibit P17 judgment of this Court whereby the DEO had been directed to pass consequential orders pursuant to Exhibit P11, proceeds on the basis that Exhibit P11 herein is an order passed by the Government in a revision filed by Sreekala. It is further stated that the judgment records that the learned

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W.P.(C).No.17477/12 & con.cases

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counsel for the petitioner submits that the DEO should be directed to pass further orders pursuant to Exhibit P11 and therefore, the challenge to Exhibit P11 at the instance of the petitioner is not maintainable in this writ petition.

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6.The learned counsel for the 8^th respondent submits that the 8^th respondent is senior to the petitioner in the cadre of UPSA and was appointed as HSA (Mathematics) on 25.08.1998 on acquiring B.Ed qualification. She claims that she was reverted due to want of vacancy in 2008-2009 and is continuing as UPSA. The contention of the petitioner in W.P.(C).No.18259 of 2013 is that she was promoted on 01.06.2009 in a short-term vacancy of HSST (English) and on termination of vacancy she ought to have been accommodated from 19.07.2012 as HSA (English), which has been denied and she has been reverted as UPSA from 19.07.2012, retaining a junior in the post of HSA (Mathematics) against the post of HSA (English). The petitioner therefore seeks a disposal of Exhibit P8 representation preferred by her before the DPI.

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W.P.(C).No.17477/12 & con.cases

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7.W.P.(C).No.19061 of 2013 was filed by S.Rema claiming salary and allowances from 15.07.2008 to 14.07.2009 in the promoted post of HSA (Social Science) pursuant to an interim order dated 31.03.2015. The claim of the petitioner has been considered and orders were passed releasing salary to the petitioner. Therefore W.P.(C).No.19061 of 2013 has virtually become infructuous.

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8.The 8^th respondent in W.P.(C).No.16357 of 2013 has filed W.P. (C).No.23715 of 2013 as well as W.P.(C).No.8343 of 2016. Her claim is for retention as HSA (Mathematics) in 2008-2009 on the basis of her seniority. She also claims that she was also entitled to be promoted as HSA (Mathematics) in 2012.

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9.The principal contention raised by the learned counsel for the petitioner in W.P.(C).No.16357 of 2013 is to the effect that the arrangement made by the Manager by Exhibit P9 had settled the entire issue and that the reconsideration of the matter by Exhibit P11 was incompetent since the review filed by Sreekala

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W.P.(C).No.17477/12 & con.cases

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was one filed after the time prescribed for such review. It is further stated that the said review was not from the original order and therefore going by the binding decisions of this Court, such a review could not have been entertained by the Government and that a copy of the review petition on which Exhibit P11 order was passed was not served on the petitioner. It is further contended that this Court (in Exhibit P17 as well as the in the order in the Contempt of Court Case had only passed orders directing the DEO to issue orders based on Exhibit P11 and the assumption of the power by the Government and the issuance of Exhibit P20 was vitiated.

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10.I have considered the contentions advanced on all sides in detail. After hearing the arguments advanced by the learned counsel appearing for the parties, I find that the adjustment of the teachers against the vacancies which existed in the academic year 1998-1999 has to be resolved first to give a quietus to the disputes raised. Exhibit P9 arrangement had attempted such a resolution to the entire issue. The only person aggrieved by Exhibit P9 arrangement was N.D.Bindu

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W.P.(C).No.17477/12 & con.cases

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who had acquired qualification for appointment as HSA in August, 1998 and was appointed as HSA (Maths) w.e.f. 25.08.1998.

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11.It is contended by the learned Government Pleader as well as the party respondents that the petitioner had appeared before the Government and had submitted to its jurisdiction before Exhibit P20 order is passed. However, this acquiescence by the petitioner cannot clothes the Government to decide the issue afresh or to pass an order in the nature of Exhibit P20, I am of the opinion that in view of the the directions issued in Exhibit P17 as well as the orders passed in the Contempt, it was for the DPI to have considered the claims raised by the petitioner, in view of the fact that the schools were in the jurisdiction of different District Educational Officers.

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12.In the above view of the matter, Exhibit P20 order by which the entire dispute has been re-examined and the issuance of directions detrimental to the interest of the petitioner was clearly unwarranted. The said order amounts to the

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W.P.(C).No.17477/12 & con.cases

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examination of the same question repeatedly by the Government. It is the specific case of the petitioner that the arrangement contained in Exhibit P9 would have given a quietus to the issue. In view of the fact that the appointment as HSA which is the subject matter of this dispute was in the month of July, 1998, I am of the opinion that the question with regard to the notional appointment of the petitioner from a date immediately after the approved dates of appointments of S.Sreekala and N.D.Bindu is a matter which should gain the serious attention of the DPI as a means to resolve the disputes now raised before this Court. If such a means is adopted by the DPI, I am of the view that the only remaining question would be as to the relative seniority of the teachers in the cadre of HSA. In such a view of the matter, all the three of them would be then entitled to continue in service from 199889 onwards and would therefore be entitled to protection in terms of the Government Orders.

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13.The DPI is therefore directed to take up the claim of the petitioners and the party respondents as well as the other

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W.P.(C).No.17477/12 & con.cases

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affected parties and to pass orders specifically considering their claims for appointment to the posts which arose in 19981999 as well as the claim of the petitioner for notional promotion as HSA in the said year. Orders in this regard shall be passed after hearing the affected parties as well as the Manager or their authorised representative. Exhibit P20 and all orders passed consequential thereto are set aside to enable a proper consideration of the issue by the DPI. It is agreed by the parties that they will appear before the DPI on 09.01.2017 without any further notice. The DPI shall hear them on that day or on any other day consequent thereto and pass orders, after hearing all the parties, within a period of one month thereafter. In view of the fact that the appointment and approval of the petitioner in W.P.(C).No.5887 of 2015 is dependent on the orders to be passed by the DPI, the DPI shall consider the question of approval to the appointment of Sheeja R.S. as UPSA also. The question of eligibility of the petitioner in W.P.(C).No.18259 of 2013 for conversion to the post of HSA (English) shall also be considered by the DPI.

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W.P.(C).No.17477/12 & con.cases

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These writ petitions are ordered accordingly.

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Anu Sivaraman, Judge

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The date of appearance “09.01.2017” occurring at page 10 of the common judgment dated 19/12/2016 in W.P(C).No. 17477/2012 and connected cases is suo motu corrected and substituted as “ 28/01/2017” as per order dated 11/01/2017 in W.P(C).No. 17477/2012 and connected cases.

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Sd/Registrar (Judicial)

Sreekala S. v. State of Kerala

Case brief

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Sreekala S. v. State of Kerala

Case brief

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