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M.P.Sudheer Babu v. State of Kerala

Kerala HC31 Oct 2016WP(C)/7125/2014

Case brief

AI extract

What is this about?

In a writ petition filed by a history teacher seeking placement in the Senior scale of pay, the Ernakulam High Court held that refusing benefits to the petitioner despite evidence of appointment by transfer was unjustified. The Court set aside the rejection order and directed the respondent to reconsider the claim, equating the petitioner's situation with a junior beneficiary granted similar relie

What did the court decide?

The order rejecting the petitioner's claim (Ext.P4) was set aside and the First Respondent was directed to place the petitioner in the scale of pay of H.S.S.T. (Senior) with effect from 05.08.2002.

M.P.Sudheer Babu 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 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938

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WP(C).No. 7125 of 2014 (M)

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PETITIONER(S):

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M.P. SUDHEER BABU, H.S.S.T. (JUNIOR) HISTORY, PANDALLOOR HIGHER SECONDARY SCHOOL, KADAMBODE P.O., MALAPPURAM- 676 521.

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BY DR.K.P.SATHEESAN, SENIOR ADVOCATE. ADVS. SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.ANOOP.V.NAIR, SRI.S.VIBHEESHANAN.

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RESPONDENT(S):

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

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2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING , SANTHI NAGAR, THIRUVANANTHAPURAM -695 001.

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3. THE MANAGER, PANDALLOOR HIGHER SECONDARY SCHOOL, KADAMBODE P.O., MALAPPURAM- 676 521.

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R1 & R2 BY GOVT. PLEADER SRI.BIJOY CHANDRAN.

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R3 BY ADVS. SRI.LAL K.JOSEPH

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SRI.A.A.ZIYAD RAHMAN

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SRI.V.S.SHIRAZ BAVA SRI.JOSEPH KURIAN VALLAMATTAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 7125 of 2014 (M)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER ON APPOINTMENT AS H.S.S.T. (JUNIOR) DATED 22/07/2006.

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EXHIBIT P2 COPY OF THE ORDER GO(RT)NO.4432/2012/G.EDN DATED 20/09/2012. EXHIBIT P3 COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA DATED 18/10/2012.

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EXHIBIT P4 COPY OF THE COMMUNICATION NO.61902/T2/12/G.EDN DATED 31/05/2013 GIVEN BY THE FIRST RESPONDENT TO THE PETITIONER.

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EXHIBIT P5 COPY OF THE STAFF FIXATION ORDER NO.ACD.A2/170160/HSE/01. DATED 22/01/2006.

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EXHIBIT P6 COPY OF THE RELEVANT PAGES OF SERVICE BOOK SHOWING THE HISTORY AND VERIFICATION OF SERVICE OF THE PETITIONER.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

ANU SIVARAMAN, J.

W.P.(C) No.7125 of 2014

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Dated this the 31^st day of October, 2016

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JUDGMENT

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The petitioner was appointed as H.S.A. in the third respondent's school on 06.06.2001. On 05.08.2002, the petitioner was appointed as H.S.S.T. (Junior). The approval to the petitioner's appointment as H.S.S.T. (Junior) was also duly granted by the authorities. However, the petitioner contends that he was not granted the scale of pay of H.S.S.T. (Senior), on the ground that petitioner's appointment order and proposal for approval as H.S.S.T. (Junior) does not show that his appointment was by transfer. It is further stated that his appointment was stated to have been made 'by promotion' and therefore he would not be entitled to be granted the scale of pay of H.S.S.T (Senior). The petitioner points out that his junior, who had been appointed as H.S.S.T. (Junior) in 2006 had been granted the benefit of placement in the scale of pay as H.S.S.T. with effect from 04.1.2006 by Ext.P2 Government

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W.P.(C) No.7125 of 2014

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Order. The petitioner had raised a claim to be treated on par with the beneficiary of Ext.P2 Government Order. However, the claim was rejected by Ext.P4 wherein it is stated that the benefit was given in Ext.P2 as a special case by granting exemption to the Rules and Government orders in force and that it was on specific condition that it would not be treated as a precedent in future directing Ext.P2 order. It is further stated that the incumbent who was granted the benefit by Ext.P2 has since retired from service and therefore recalling of the benefits granted to him was also found to be impossible.

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The learned Government Pleader relying on the contentions advanced in the counter affidavit would submit that by Government Order dated 20.11.2004, Government had ordered grant of full time scale of pay of H.S.S.T. to those teachers appointed by transfer from High School section irrespective of the number of period they taught. This benefit was available only to H.S.S.T.s appointed before 12.11.2001.

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W.P.(C) No.7125 of 2014 -3-

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It is stated that since the petitioner was appointed on 05.08.2002, he would not be entitled to the benefit of the said Government Order. It is further submitted that the benefit given by Ext.P2 to a teacher who was due to retire would not be available to the petitioner, since it is a special order passed in exercise of powers of exemption on the specific condition and it would not be a precedent.

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A counter affidavit has been filed by the third respondent contending that the petitioner was working as H.S.A. and an additional batch of Humanities was sanctioned in the Higher Secondary Section of the School by Government Order dated 23.02.2001 to a consequent vacancy of H.S.S.T. (Junior) in History, the petitioner was appointed by transfer since he was the only eligible candidate for such appointment. In the above circumstances, the contention raised by the official respondents that the petitioner's appointment was not under the 25% quota, will not survive.

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W.P.(C) No.7125 of 2014

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In that view of the matter, all that survives for consideration is the eligibility of the petitioner for placement in the scale of pay of H.S.S.T.(Senior). It is contended in the Government Order dated 20.11.2004, that the petitioner would not be entitled as of right to pay a scale of pay of H.S.S.T, since he was a teacher appointed after 12.11.2001. It is clearly provided in Government Order dated 20.11.2004 that the benefit of scale of pay of H.S.S.T. would be available only to those H.S.S.T.(Junior) appointed before 12.11.2001, by transfer. The reliefs sought for in this writ petition are to quash Ext.P4 and to appoint the petitioner as H.S.S.T.(Senior) with effect from the date on which his Junior was appointed as H.S.S.T.(Senior) with all consequential benefits. It is seen from Ext.P2 that Sri.Antony Joseph, the incumbent in whose favour Ext.P2 order has passed has been given the benefits of scale of pay of H.S.S.T.(Senior) with effect from the date of his appointment as H.S.S.T.(Junior). This has been done as a

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W.P.(C) No.7125 of 2014

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special case. In the above circumstances, the claim of the petitioner for placement of the scale of H.S.S.T. with effect from the date of his appointment as H.S.S.T. (Junior) i.e., 05.08.2002 is what remains to be considered. By Government Order dated 20.11.2004, benefits have been granted to all H.S.S.T. (Junior) appointed by transfer before 12.11.2001. By Ext.P2 Order a junior of the petitioner has also been granted in the same benefit. In the above circumstances, I am of the considered view that the refusal to grant the benefits to the petitioner by Ext.P4 order is not justified in the facts and circumstances of the case.

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In the above circumstances, Ext.P4 is set aside. The first respondent is directed to take up the claim of the petitioner for placement in the scale of pay of H.S.S.T. (Senior), taking into consideration Ext.P2 order also with effect from his date of appointment of date H.S.S.T. (Junior). The claim of the petitioner shall be considered in view of Ext.P2 order also.

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W.P.(C) No.7125 of 2014

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Orders as directed above shall be passed by the first respondent within a period of two months from the date of receipt of a copy of this judgment.

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Writ petition is closed accordingly.

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Sd/ANU SIVARAMAN, JUDGE

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M.P.Sudheer Babu v. State of Kerala

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M.P.Sudheer Babu v. State of Kerala

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