Allowed

Resmi G.S v. State of Kerala

Kerala HC14 Dec 2017WP(C)/5025/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition by a school teacher denied salary after rejoining duty from leave without allowance. The Court held that approved teachers shifted to the teachers bank due to post reduction are entitled to deployment and salary regardless of vacancies on return. The petition was disposed of with directions to respondents.

What did the court decide?

Set aside impugned orders and direct respondents to grant petitioner benefits of inclusion in teachers bank; salary claim from 1.1.2015 to March 2016 to be considered; other claims to be considered by

Resmi G.S Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2017)

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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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THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939

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WP(C).No. 5025 of 2016 (C)

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PETITIONER(S):

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RESMI G.S., UPSA, VELLIYUR AUP SCHOOL, P.O.NOCHAD, KOZHIKODE DISTRICT.

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BY ADVS.SRI.R.K.MURALEEDHARAN SMT.ATHIRA A.MENON

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RESPONDENTS:-:

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

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2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 001.

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3. THE ASSISTANT EDUCATIONAL OFFICER, PERAMBRA, KOZHIKODE DISTRICT - 673 525.

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BY SENIOR GOVERNMENT PLEADER SMT.NISHA BOSE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5025 of 2016 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1. A TRUE COPY OF THE APPOINTMENT ORDER DATED 06.06.2006 BY THE MANAGER, VELLIYUR AUP SCHOOL.

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EXHIBIT P2. A TRUE COPY OF THE GO(RT)NO.1208/08/G.EDN DATED 07.03.2008.

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EXHIBIT P3. A TRUE COPY OF THE APPOINTMENT ORDER OF SAJILA T.P. DATED 04.06.2008 AND THE PROCEEDINGS OF APPROVAL.

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EXHIBIT P4. A TRUE COPY OF THE GO(P)199/2011/G.EDN DATED 01.10.2011.

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EXHIBIT P5. A TRUE COPY OF THE COMMUNICATION FROM THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 12.02.2015.

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EXHIBIT P6. A TRUE COPY OF THE COMMUNICATION DATED 29.06.2015 OF THE 3RD RESPONDENT WITH COPY TO THE PETITIONER.

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EXHIBIT P7. A TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT TO 3RD RESPONDENT DATED 08.06.2015.

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EXHIBIT P8. A TRUE COPY OF THE RELEVANT PAGES OF THE REVISED STAFF FIXATION ORDER DATED 03.03.2011 OF THE SCHOOL DURING THE YEAR 2010-11.

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EXHIBIT P9. A TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION OF THE ORDER OF THE SCHOOL FOR 2013-14 DATED 14.05.2014.

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EXHIBIT P10. A TRUE COPY OF THE GO(P)NO.213/2015/G.EDN DATED 06.08.2015.

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EXHIBIT P11. A TRUE COPY OF THE GO(P)NO.29/2016/G.EDN DATED 29.01.2016.

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WP(C).No. 5025 of 2016 (C)

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EXHIBIT P12:- A TRUE COPY OF THE COMMUNICATION

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DATED 06.08.2016.

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EXHIBIT P13:- A TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER OF VELLIYUR LP SCHOOL DATED 12.4.2016.

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RESPONDENT(S)' EXHIBITS - NIL

/TRUE COPY/

PS TO JUDGE

ANU SIVARAMAN, J.

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W.P.(C).No.5025 of 2016

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Dated this the 14^th day of December, 2017

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J U D G M E N T

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

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Petitioner is a teacher working as UPSA in an Aided School. It is submitted that her appointment as UPSA was duly approved on 6.6.2006 and she was drawing salary. While so, she availed leave without allowance from 15.01.2008 to 31.12.2012. The leave was later extended till 31.12.2014. Another teacher was appointed in the leave vacancy and her appointment was also duly approved. It is stated that the petitioner rejoined in the school on 01.01.2015. As per the staff fixation order issued, post held by the petitioner is reduced and the petitioner had been shifted to the teachers bank. After rejoining duty petitioner sought the benefit of inclusion in the teachers bank and payment of salary. However, the educational authorities held that there was no sanctioned post or vacancy to accommodate the petitioner when she rejoined duty on 01.01.2015 and therefore the petitioner cannot be granted salary.

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The learned counsel for the petitioner contends that

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the petitioner who had been shifted to the teachers bank by

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W.P.(C).No.5025 of 2016 2

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Ext.P9 order dated 14.5.2014 was entitled to the benefit of

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such inclusion and on rejoining duty she ought to have been deployed and permitted to work.

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A counter affidavit has been filed on behalf of second respondent. It is contended therein that petitioner had been working in an approved post from 06.06.2006 and that she had granted leave without allowance from 02.06.2008 for joining her spouse abroad. The Government had granted extension of leave without allowance for two years from 01.01.2013 to 31.12.2014 as sought for by the petitioner. The

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petitioner rejoined duty after the period of leave on 01.01.2015. It is stated that the post against which the petitioner had been appointed and approval granted had been reduced in the academic year 2010-11 and that the petitioner had been shifted to the teachers bank. It is stated that since petitioner was on leave without allowance for the period from 2.6.2008 to 31.12.2014, when she rejoined duty on 1.1.2015 there was no post or vacancy to include the petitioner and as such the salary could not be paid to her. It is further stated that had the petitioner been in service without entering into leave without allowance she would have been entitled to get

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W.P.(C).No.5025 of 2016 3

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salary benefits like other teachers.

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It is further submitted by the learned Government Pleader that going by the Government Order dated 24.5.2013 the Government had informed the DPI that the decision had been taken that no inclusion in the package should be made after 14.03.2013.

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I have considered the contentions advanced. It is clear that the petitioner had been granted leave without allowance from 15.1.2008 to 31.12.2012. Thereafter the period of leave had been further extended from 1.1.2013 to 31.12.2014 this period was also duly sanctioned by the Government. The petitioner had rejoined duty immediately after expiry of the period of sanctioned leave on 1.1.2015.

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In the meanwhile, orders had been passed shifting the petitioner to the teachers bank on reduction of post during the academic year 2010-11. All the teachers moved to the teachers bank along with the petitioner had been drawing salary. The learned counsel for the petitioner contends that even juniors of the petitioner who were moved to the teachers bank have been deployed and are drawing salary. The petitioner therefore is a teacher who had been approved

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W.P.(C).No.5025 of 2016 4

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service from 2006 onwards. On reduction of her post during the academic year 2010-11, she was entitled to inclusion in the teachers bank. The petitioner had availed leave without

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allowance duly sanctioned by the Government from 15.01.2008 to 31.12.2014. The leave substitute who had worked in her place had been approved and granted salary as well. In above view of the matter, as rejoining service on 1.1.2015 after the expiry of the leave, petitioner was also entitled to the benefits of inclusion in the teachers bank and for deployment in terms of the Government Orders in force. The finding contained in the impugned order to the effect that the petitioner can be permitted to avail the benefit of inclusion in the teachers bank only if there is an established vacancy as on 1.1.2015 cannot be sustained in the view of the Government Orders with regard to the formation of the teachers bank. The teachers who are thrown out of service for want of vacancy are clearly entitled to inclusion in the teachers bank. It is in accordance with the said provision that the petitioner was so included. The petitioner was in service as on the date when the fall in student strength and resultant reduction of post occurred in 2010-11. The leave substitute

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W.P.(C).No.5025 of 2016 5

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who was appointed in the place of the petitioner was granted approval and salary as well. In the above view of the matter, the stand taken by the respondents that the petitioner, who

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availed leave is entitled to the benefits of inclusion in the teachers bank, only if there was an established vacancy available to accommodate her in the school as on 1.1.2015 cannot be countenanced. The petitioner who had been included in the teachers bank would be entitled to the benefit of such inclusion. The petitioner would therefore be entitled to be deployed in accordance with the Government Orders in

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force and also to the payment of salary with effect from the date of such deployment.

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In the above view of the matter, the impugned

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observations in the orders under challenge are set aside. There will be a direction to the respondents to grant the petitioner the benefits of inclusion in the teachers bank and her claim for salary for the period from 1.1.2015 to till March 2016 from which date she had been paid salary on the strength of the interim order passed by this Court will be considered by the third respondent in accordance with law. The contention of

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the petitioner that juniors who had been included in the

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W.P.(C).No.5025 of 2016 6

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teachers bank had been paid salary for the said period and that it was only due to the unsustainable stand taken by the respondents that the petitioner could not work will also be considered. The petitioner's claim for payment of pay revision benefits and the exercise of option for the grant of the same shall be immediately taken up and considered by the respondents in accordance with law, in the light of what is stated above. The orders in this regard shall be passed by the 3^rd respondent within a period of two months from the date of receipt of a copy of this judgment.

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The writ petition is disposed of accordingly.

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Sd/-

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ANU SIVARAMAN JUDGE

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rmm/18/12

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// True Copy //

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P.A. To Judge

Resmi G.S v. State of Kerala

Case brief

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Resmi G.S v. State of Kerala

Case brief

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