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Beena Varghese v. the State of Kerala

Kerala HC17 Dec 2016WP(C)/32888/2015

Case brief

AI extract

What is this about?

The court accepted a writ petition where a teacher's salary was withheld following a government order. After reviewing a Manager's incidental order regarding a vacancy adjustment, the judge held that withholding salary was unsustainable. The court directed immediate pass of orders on adjustment and consideration of salary claims within one month.

What did the court decide?

Directing the authorities to consider the adjustment orders issued by the Manager immediately and pass final orders on the salary claim within one month of the judgment.

Beena Varghese Vs the State of Kerala — Income Tax | 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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SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938

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WP(C).No. 32888 of 2015 (I)

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PETITIONER(S) :-

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BEENA VARGHESE, AGED 52 YEARS, HIGH SCHOOL ASSISTANT, MAR ATHANASIOUS HIGH SCHOOL, NEDUMBASSERY, ATHANI P.O., ALWAYE.

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BY ADV. SRI.BABU PAUL

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RESPONDENT(S) :-

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1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, MINISTRY OF EDUCATION, TRIVANDRUM - 695 001.

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2. DEPUTY DIRECTOR DIRECTORATE OF DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM - 682 030.

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3. THE DISTRICT EDUCATIONAL OFFICER, ALWAYE - 682 106.

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4. THE HEAD MASTER MAR ATHANATIOUS HIGH SCHOOL, NEDUMBASSERY, ATHANI P.O., ALWAYE - 682 106.

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5. THE MANAGER MAR ATHANASIOUS HIGH SCHOOL, NEDUMBASSERY, ATHANI P.O., ALWAYE - 682 106.

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R5 BY ADV. SRI.K.PAUL KURIAKOSE R4 BY ADV. SRI.RAJIT R1 - R3 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 32888 of 2015 (I)

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APPENDIX

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PETITIONER(S)' EXHIBITS :-

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EXT.P1 : THE TRUE COPY OF THE JUDGMENT IN W.A.512/95 DT. 31/10/2002.

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EXT.P2 : THE TRUE COPY OF THE ORDER DATED 14/3/2003. EXT.P3 : THE TURE COPY OF THE LETTER DT. 30/9/2015. EXT.P4 : THE TRUE COPY OF THE LETTER DT. 6/8/2015 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.

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EXT.P5 : THE TRUE COPY OF THE LETTER DT. 26/8/2015 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

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RESPONDENT(S)' EXHIBITS :-

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EXT.R5(a) : COPY OF THE GOVERNMENT ORDER BEARING No.G.O.(Rt)No. 997/03/GL.Edn. DATED 14.3.2003.

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EXT.R5(b) : COPY OF JUDGMENT DATED 17.12.2004 IN W.P.(C)No.36787 OF 2003(D) OF THE HON'BLE HIGH COURT OF KERALA.

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EXT.R5(c) : COPY OF LETTER BEARING No.B5/6027/12 DATED 19.2.2015 FROM THE 3RD RESPONDENT TO THE 5TH RESPONDENT.

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EXT.R5(d) : COPY OF LETTER DATED 05.05.2015 FROM THE 5TH RESPONDENT TO THE 4TH RESPONDENT.

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//TRUE COPY//

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P.A. TO JUDGE

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ANU SIVARAMAN, J.

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

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W.P.(C) No.32888 of 2015

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------------------------------------------------------Dated this the 17^th day of December 2016

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J U D G M E N T

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The petitioner has filed this writ petition seeking the following relief :-

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“Issue a writ of certiorari or such other writ or order calling for entire records leading to Ext.P3 to Ext.P5 and quash the same in so far as it is against the petitioner.”

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The petitioner had been appointed as HSA (Maths) in the 5^th respondent School with effect from 1.7.1986. The said appointment was challenged by rule 43 claimants in the post of UPSA, in which, they got stay of approval of the said appointment and subsequently, the said writ petition was disposed of directing the 3^rd respondent therein to consider the claims of all concerned. The 3^rd respondent, after considering the claims, held that they were not eligible for appointment as HSA. Thereafter, they approached various authorities including the Government as well as this Court. A learned Single Judge of this Court held that the appointment of the petitioner was illegal and directed to appoint one of the rule 43 claimants in her place. Against the judgment of the learned Single Judge, appeal was filed by the petitioner, which came to be disposed of by Ext.P1 common judgment, wherein the

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W.P.(C) No.32888 of 2015

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-: 2 :-

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Division Bench of this Court directed the Government to consider the claim raised by the said rule 43 claimants. The Government issued Ext.P2 order dated 14.3.2003 after hearing all the concerned, wherein, it was stated that Fr.Varghese and Sona Cherian were entitled to be promoted against vacancies, which arose in 1986-'87 in view of their claim under Rule 43, Chapter XIVA of the Kerala Education Rules. It was thereafter directed that they would be notionally adjusted against the vacancies of HSA in 1986-'87. Since the appointment of the petitioner and another newly appointed teacher as HSA were approved in 1986, they would be notionally reverted as UPSAs from 1986-'87 and regularly from 2003 onwards.

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The petitioner continued to work as HSA (Maths) even after Ext.P2 order and drew her salary till October, 2015. However, on 30.9.2015, the petitioner received a letter, Ext.P3, from the 4^th respondent stating that in view of the letters cited therein, which were produced as Exts.P4 and P5, her salary was withheld. Aggrieved by Exts.P3 to P5, the petitioner has approached this Court seeking the aforesaid relief.

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Heard the learned counsel for the petitioner, learned Government Pleader appearing for the official respondents as well as the learned counsel for the Manager.

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W.P.(C) No.32888 of 2015

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-: 3 :-

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It is submitted by the learned counsel for the petitioner that the Manager has, after filing of this writ petition, issued a proceedings dated 29.2.2016, wherein, it was specifically pointed out that against a vacancy of HSA (Maths) which arose on 1.1.1990, Smt.Sona Cherian had been appointed. It is submitted that Smt.Sona Cherian now stood notionally promoted against the vacancy which arose on 1.7.1986. Hence, the vacancy which thereafter arose on 1.1.1990 could have been filled up by adjusting the petitioner and there is no need to revert the petitioner.

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I have perused the order issued by the Manager. In view of the said order, the petitioner is entitled to be promoted and posted as HSA against the vacancy arose when Sona Cherian, one of the rule 43 claimants, was promoted and posted by the Manager. In the said circumstances, since there was a vacancy of HSA which arose on 1.1.1990, to which, rule 43 claimant had already been appointed, the Manager specifically stated in the counter affidavit filed by him that the petitioner could be adjusted against the said vacancy. In the above view of the matter, no reversion is necessary.

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In the above view of the matter, I am of the opinion that the refusal on the part of the respondent to pay salary to the

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W.P.(C) No.32888 of 2015

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-: 4 :-

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petitioner cannot be sustained. Since the Manager has already issued orders adjusting the leave of the teacher concerned by his proceedings dated 29.2.2016, such adjustments, which have been forwarded to the DEO have to be considered and orders to be passed immediately. Similarly the claim of the petitioner for salary based on the orders passed by the Manager shall also be considered and final orders passed within one month from the date of receipt of a copy of this judgment.

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This writ petition is ordered accordingly.

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Sd/ANU SIVARAMAN JUDGE

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Jvt/21.12.16

Beena Varghese v. the State of Kerala

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Beena Varghese v. the State of Kerala

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