Partly allowed

S.Shylaja v. State of Kerala

Kerala HC16 Feb 2017WP(C)/6225/2007

Case brief

AI extract

What is this about?

The Kerala High Court set aside an order deploying a petitioner from a protected post to a temporary regularisation post. The court held that the teacher is entitled to be retained in her original position and that the period worked in the regularisation post must be treated as duty.

What did the court decide?

Exhibit P8 and P6 were set aside; petitioner to be retained in original post; period worked in regularisation post to be treated as duty with consequential benefits.

S.Shylaja 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 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938

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WP(C).No. 6225 of 2007 (N)

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PETITIONER(S):

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S.SHYLAJA, AGED 40 YEARS, W/O.M.S.VIJAYA, HIGH SCHOOL ASSISTANT (HINDI), K.T.M.HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT.

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BY ADV. SRI.V.A.MUHAMMED

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RESPONDENT(S):

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1. STATE OF KERALA, BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. SMT.C.R.BEENAKUMARI, UNDER SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.

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3. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 4. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 5. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 6. THE MANAGER, K.T.M.HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT. 7. SMT.P.SEENA, LOWER GRADE HINDI TEACHER, K.T.M.HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT. 8. THE HEADMASTER, K.T.M.HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT. R1 TO R5 BY ADV. SR.GOVERNMENT PLEADER SRI. BIJOY CHANDRAN R6 BY ADV. SMT.R.MEERA SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH R7 BY ADV. SRI.K.JAJU BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2017, ALONG WITH WPC. 29763/2010, WPC. 24775/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 6225 of 2007 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE G.O.(P) No.328/2003/FIN. OF THE GOVERNMENT DATED 19.06.2003

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P2 TRUE COY OF THE ORDER NO.B1-8724/2005/D.DIS. OF THE DIST. EDL. OFFICER DATED 02.12.2005

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P3 TRUE COPY OF THE G.O.(P) NO.178/2002/G.EDN. OF THE GOVERNMENT DATED 28.06.2002

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P4 TRUE COPY OF THE G.O.(P) NO.187/2005/G.EDN. OF THE GOVERNMENT DATED 17.06.2005

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P5 TRUE COPY OF THE ORDER NO.B4/25419/05 OF THE DY. DIRECTOR OF EDN. DATED 13.01.2006

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P6 TRUE COPY OF THE ORDER NO.D.DIS.17768/06/RA3/DPI OF THE 2ND RESPONDENT DATED 12.05.2006

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P7 TRUE COPY OF THE LETTER OF THE MANAGER DATED 24.05.2006 P8 TRUE COPY OF THE LETTER OF THE HEADMASTER DATED 26.06.2006

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P9 TRUE COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN WPC.14660/2006-T DATED 06.06.2006

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P10 TRUE COPY OF THE LETTER NO.30862/06/G. EDN. OF THE GOVERNMENT DATED 01.07.2006

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P11 TRUE COPY OF THE G.O. (RT) NO.153/07/G.EDN. OF THE GOVERNMENT DATED 11.01.2007

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P12 TRUE COPY OF THE G.O.(RT). NO.5045/06/G.EDN OF THE GOVERNMENT DATED 21.11.2006

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P13 TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA STATE BHARAT SCOUTS AND GUIDES DATED 09.01.2006

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P14 TRUE COPY OF THE ORDER NO.D.DIS.4787/2006/B1 OF THE DIST. EDL. OFFICER DATED 23.02.2007

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RESPONDENT(S)' EXHIBITS

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R7(A) TRUE COPY OF APPOINTMENT ORDER DATED 22.06.1998 ISSUED BY THE 5TH RESPONDENT TO THE 7TH RESPONDENT

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R7(B) TRUE COPY OF DECLARATION OF PROBATION OF THE 7TH RESPONDENT ISSUED BY THE 6TH RESPONDENT

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R7(C) TRUE COPY OF STAFF FIXATION ORDER DATED 1.10.04 VIDE NO.B14669/04 ISSUED BY THE 6TH RESPONDENT

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R7(D) TRUE COPY OF STAFF FIXATION ORDER DATED 3.8.05 VIDE DIS.5024/05 ISSUED BY THE 5TH RESPONDENT

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R7(E) TRUE COPY OF WPC.33314/06 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT ON 19.11.2006

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R7(F) TRUE COPY OF JUDGEMENT DATED 10.02.06 IN WPC.4019/06 OF THIS HON'BLE COURT

TRUE COPY

P.S. TO JUDGE

ANU SIVARAMAN, J.

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----------------------------------------------W.P(C).No. 6225 of 2007, W.P(C).No. 29763 of 2010 & W.P(C).No.24775 of 2014

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----------------------------------------------Dated this the 16^th February, 2017

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JUDGMENT

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Heard learned counsel for the petitioners in the respective cases and the learned Senior Government Pleader.

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It is submitted that if W.P(C).No.24775 of 2014 is considered, it would be unnecessary to consider the prayers raised in W.P(C).No.6225 of 2007. The petitioners in both these writ petitions are the same. The petitioner was appointed as HSA (Hindi) on 12.7.1993. By Exhibit P6 it is stated that she was liable to be retained in a sanctioned post of HSA (Hindi). Thereafter, it is stated that in the academic year 2014-2015, there was a further division fall and the petitioner was again rendered excess. By Exhibit P8 order, the petitioner was deployed to a Government school on the assumption that she was a protected teacher, who was liable to be so deployed. The petitioner contends that she having been appointed as HSA on 12.7.1993, was entitled to protection in terms of Government orders, GO(P).No.175/99/G.Edn. dated 26.7.1999 and G.O(P).240/99/G.Edn. dated 29.9.1999. These orders would clearly provide that teachers appointed before 14.7.1996 are entitled to protection by retaining them in respective schools. They are not

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WP(C).29763/10

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liable to be deployed, since their protection is on the basis of their having been entered service before 14.7.1996.

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In the above view of the matter, Exhibit P8 order deploying the petitioner to Government school cannot be sustained. Exhibit P8 is, therefore, liable to be set aside. The petitioner is entitled to be retained as HSA in the K.T.M.High Schiool, Mannarkkad. It is submitted by the learned counsel appearing for the petitioners that in case Ext.P8 is set aside, nothing survives for consideration in W.P.(C) No.6225 of 2007.

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In W.P(C).No.29763 of 2010, the only claim raised is with regard to break in service due to the operation of G.O(P). No.262/07/Fin. dated 19.6.2007. It is submitted that the petitioner had continued against a wrongly sanctioned post from 15.7.2004 to 4.6.2006. The Government order did not provide for recovery of salary from her. However, it is submitted that though the petitioner had preferred representations seeking counting the period as duty, Exhibit P6 order has now been passed stating that the request is rejected. This would lead to a break in service of the petitioner who had been appointed on 26.2.1998.

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I have considered the contentions advanced. The petitioner had worked as L.G Hindi Teacher from 15.7.2004 to 4.6.2006 in a sanctioned post. The sanction granted to the post of L.G.Hindi Teacher has subsequently been found to be erroneous. The petitioner had actually worked and was allowed to draw salary. In

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WP(C).29763/10

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the above circumstances, it is clear that the teacher cannot be held responsible for the irregular sanctioning of the post.

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In the above view of the matter, I am of the opinion that Exhibit P6 cannot be sustained. The petitioner, who had worked against the sanctioned post, which was later found to have been irregularly sanctioned is entitled to all the consequential benefits of having worked against such post. It is seen that the sanction granted was recalled only by order dated 15.7.2007.

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In the result,

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a) Exhibit P6 in W.P(C).No. 29763 of 2010 is set aside. It is directed that the petitioner will be entitled to treat the period from 15.7.2004 to 4.6.2006 as duty for all purposes. Consequential benefits shall be calculated and disbursed to the petitioner within three months from the date of receipt of a copy of this judgment.

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b) Ext.P8 in W.P.(C) No.24775/2014 is set aside. The petitioner in the writ petition shall be retained as HSA in the K.T.M.High Schiool, Mannarkkad.

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c) W.P.(C) No.6225/2007 is closed as infructuous.

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ANU SIVARAMAN

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JUDGE

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vgs9/2

S.Shylaja v. State of Kerala

Case brief

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S.Shylaja v. State of Kerala

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