Allowed

Soumya.M.K v. Assistant Educational Officer

Kerala HC5 Dec 2019WP(C)/1590/2017

Case brief

AI extract

What is this about?

The Kerala High Court quashed a government order denying a school assistant's regular scale pay benefits. The court held that since the underlying leave vacancy exceeded one academic year, the appointment must be approved on the regular pay scale in accordance with State of Kerala V. Sneha Cherian.

What did the court decide?

Quashed the impugned government order and directed the Assistant Educational Officer to approve the petitioner's appointment on regular scale of pay from 16.07.2007.

Soumya.M.K Vs Assistant Educational Officer — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941

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WP(C).No.1590 OF 2017(W)

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PETITIONER/S:

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SOUMYA.M.K, LOWER PRIMARY SCHOOL ASSISTANT (LPSA) EDAYUR NORTH AMLP SCHOOL, EDAYUR P.O., VALACHERY, MALAPPURAM DISTRICT.

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BY ADVS. DR.GEORGE ABRAHAM SRI.DOMINIC JOSE

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RESPONDENT/S:

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1 ASSISTANT EDUCATIONAL OFFICER, KUTTIPPURAM, MALAPPURAM DISTRICT 679 571

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2 DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM 676 101

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3 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANATHAPURAM 695 001.

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4 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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5 MANAGER

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EDAYUR NORTH AMLP SCHOOL EDAYUR P.O., VALANCERY MALAPPURAM DISTRICT 676 552.

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R1-R4 BY SRI. JUSTIN MATHEW, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-122019, THE COURT ON 05-12-2019 DELIVERED THE FOLLOWING:

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WP(C).No.1590 OF 2017 2

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JUDGMENT

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This writ petition is filed by the petitioner

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seeking the following reliefs:-

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“a) to issue a Writ of Certiorari, or any other appropriate writ, order or direction, to quash Exhibit P6 order to the extent it declines approval for the period from 16.07.2007 to 15.07.2008.

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b) to issue a writ of certiorari; or any other appropriate writ, order or direction, to quash Exhibits P2 and P3 orders passed by the respondents 2 and 3 respectively.

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c) to issue a Writ of mandamus; or any other appropriate writ, order or direction, directing the respondents 1 to 4 to approve the appointment of the petitioner as LPSA from 16.07.2007 onwards on regular scale of pay basis.

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d) to grant such other and further reliefs as this Hon'ble Court may consider just and proper in the facts and circumstances of the case.”

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Basic material facts for the disposal of

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the writ petition are as follows:-

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Petitioner was appointed as LPSA on

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WP(C).No.1590 OF 2017 3

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16.07.2007 in a Leave Without Allowance (LWA) vacancy availed by one Syriac Peter. According to the petitioner, the said vacancy was for a period of 16.07.2007 to 04.01.2011, evident from Ext.P1 appointment order issued by the Manager of A.M.L.P. School, Edayur North, Malappuram district.

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Anyhow, the educational authorities

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considered her appointment only on daily wage basis instead of on regular scale of pay basis for her initial service from 16.07.2007 to 31.05.2009.

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Case projected by the petitioner is that, petitioner is entitled to get her appointment approved on regular scale of pay from her initial appointment onwards, i.e., 16.07.2007, as she was appointed as an LPSA against a long term leave vacancy specified above. It is also pointed out that, petitioner is entitled to get the benefits flowing from the decision of the Apex Court in State of Kerala V. Sneha Cherian 2013 (1) KHC 660 . These are the basic background facts projected by the petitioner to interfere with Ext.P6 G.O. to the extent of providing the daily wage basis for a

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WP(C).No.1590 OF 2017 4

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short spell.

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A detailed counter affidavit is filed by the 2^nd respondent refuting the allegations and claims and demands raised by the petitioner, and also justifying the stand adopted in the impugned Ext.P6 G.O.

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I have heard learned counsel for the petitioner and learned Government Pleader and perused the pleadings and the documents on record.

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The sole question arises for consideration

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is, whether any manner of interference is warranted to Ext.P6 order passed by the Government. After assimilating the factual situation as is projected by the petitioner, the Government have considered the issue, taking into account, Rule 7A(III) of Chapter 14A KER, which stipulates that, vacancies duration of which is less than one academic year shall not be filled up. Therefore, according to the Government, a Manager cannot fill up a vacancy having a duration of less than one academic year on regular scale of pay basis.

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WP(C).No.1590 OF 2017 5

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It is also stated that, the vacancy in

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which the petitioner was appointed with effect from 16.07.2007 has duration of more than one academic year, but her appointment in the vacancy was limited to period below one academic year as

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is stipulated under Rule 2A of Chapter 7 KER.

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Therefore, action of the educational officer in approving her appointment with effect from

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16.07.2007 to 30.04.2008, and with effect from

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02.06.2008 to 14.07.2008 seems to be in order.

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But the vacancy in which the petitioner was

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appointed with effect from 15.07.2008 was a regular vacancy which extends over the academic year, and the duration may be up to the existence of posts. In that circumstances, appointment of the petitioner with effect from 15.07.2008 was approved on regular scale of pay basis in the light of the direction of the Apex Court in State of Kerala V. Sneha Cherian specified above,

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subject to Rule 49 of Chapter 14A KER, and thereupon, the Assistant Educational Officer, Kuttipuram, was directed to pursue further action in the matter.

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WP(C).No.1590 OF 2017 6

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I have evaluated the rival submissions made

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across the Bar. In the impugned G.O, there is no reason assigned with respect to the split up approval directed to be made on account of the Leave Without Allowance, by segregating a portion on daily wages and the rest on scale of pay. Going by Ext.P1 appointment order issued by the Manager of the School, invoking the powers conferred under Rule 7 of Chapter 14A, it is apparent that the appointment was from the period 16.07.2007 to 04.01.2011, i.e., a continuous period. Nowhere it is spelt out in Ext.P6 G.O, how the Government or the educational authorities have arrived at a conclusion with respect to split up period less than eight months in order to deny the benefits to the petitioner on account of the judgment in State of Kerala V. Sneha Cherian.

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Learned counsel has invited my attention

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to the judgment of the Apex Court in State of Kerala V. Sneha Cherian. After assimilating the fact situations, almost akin to what is contended in this writ petition, directions are given in paragraph 26 of the judgment, which are as

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WP(C).No.1590 OF 2017 7

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follows:

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“26. We are, therefore, inclined to allow these appeals and set aside the judgment of the Division Bench with the following directions:

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i) A teacher, who was relieved from service under R.49 and R.53 of Chapter XIVA of the KER, is entitled to get preference for appointment under R.51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief.

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ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc. provided they are established vacancies and the approval can be granted subject to the conditions under R.49 of Chap.14A of the KER.

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iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31^st March due to sanctioning of additional divisions.

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iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wages basis and if the

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WP(C).No.1590 OF 2017 8

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duration of vacancy exceeds one academic year that can be filled up on the scale of pay basis.

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v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the KER.

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vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.”

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Therefore, according to learned counsel, taking into account direction No. 4 above, it is clear that, the Manager can make appointments in school even if the duration of which is less than one academic year, but on daily wages basis and if the duration of vacancy exceeds one academic year, that can be filled up on scale of pay basis.

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As I have pointed out above, the

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appointment order makes it specific that the appointment of the petitioner was made by the Manager from 16.07.2007 to 04.01.2011, apparently

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WP(C).No.1590 OF 2017 9

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in a Leave Without Allowance vacancy. Going by

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the proposition of law laid down in Sneha Cherian (supra) what is relevant is the duration of the leave vacancy and not the appointment made.

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In that view of the matter, I am of the

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considered opinion that, the conclusions arrived at by the Government in Ext.P6 order cannot be sustained under law. Therefore, I quash the same and there will be a direction to the Assistant Educational Officer, Kuttipuram to take appropriate action in order to approve the appointment of the petitioner on scale of pay basis on and with effect from the date of appointment, i.e., 16.07.2007 onwards.

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Needless to say, all benefits available to

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the petitioner on account of the scale of pay basis shall be provided to the petitioner, at the earliest and at any rate, within two months from the date of receipt of a copy of this judgment, if required, after providing notice of hearing to the petitioner as well as the Manager.

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WP(C).No.1590 OF 2017 10

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The writ petition is disposed of accordingly.

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Sd/SHAJI P.CHALY JUDGE

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uu 05.12.2019

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WP(C).No.1590 OF 2017 11

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXT.P1	TRUE COPY OF THE DATED 16/7/2007 I PETITIONER	APPOINTMENT ORDER SSUED TO THE
EXT.P2	TRUE COPY OF THE DISTRICT EDUCATIO 3/4/2008	ORDER ISSUED BY THE NAL OFFICER, DATED
EXT.P3	TRUE COPY OF THE 23/6/2011 ISSUED PUBLIC INSTRUCTIO	ORDER DATED BY THE DIRECTOR OF N
EXT.P4	TRUE COPY OF THE 1/8/2011 SUBMITTE BEFORE THE GOVERN	REVISION DATED D BY THE MANAGER MENT
EXT.P5	TRUE COPY OF THE THE PETITIONER ON	REVISION FILED BY 16/3/2016
EXT.P6	TRUE COPY OF THE NO.3147/2016/GEN. 30/9/2016	GO(RT) EDN. DATED

Soumya.M.K v. Assistant Educational Officer

Case brief

What is this about?

What did the court decide?

Soumya.M.K v. Assistant Educational Officer

Case brief

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