Remanded

Sumi T.V. v. State of Kerala

Kerala HC25 Jan 2021WP(C)/14132/2020

Case brief

AI extract

What is this about?

A teacher challenged orders treating leave without allowances as non-duty and ordering salary refunds. The Judge set aside the relevant order, directing the District Educational Officer to reconsider the claim applying maternity leave rules before the Kerala Service Rules and confirm interim payment.

What did the court decide?

Petitioner's order set aside; matter remanded to 2nd Respondent to reconsider claim applying Rules 88, 100, 102 of KSR within two months; interim salary payment confirmed.

Sumi T.V. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

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WP(C).No.14132 OF 2020(N)

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PETITIONER:

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SUMI T.V. AGED 41 YEARS W/O.SALIM, OTHAYOTH HOUSE, THACHAMPOYIL P O, THAMARASSERY (VIA), KOZHIKODE DISTRICT, PIN-673573, (PRESENTLY WORKING AS H.S.T (ARABIC), C.M.M. HIGHER SECONDARY SCHOOL, THALAKULATHUR, KOZHIKODE DISTRICT673317)

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BY ADV. SHRI.V.N.RAMESAN NAMBISAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN695001.

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2 THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE DISTRICT, PIN-673001.

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3 THE HEADMASTER, C.M.M. HIGHER SECONDARY SCHOOL, THALAKULATHUR, KOZHIKODE DISTRICT, PIN-673317.

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R1-2 BY GOVERNMENT PLEADER

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SRI. SUNIL KUMAR KURIAKOSE (GP)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.14132 OF 2020

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JUDGMENT

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Dated this the 25th day of January 2021

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The petitioner says that she is working as an Arabic Teacher in C.M.M. Higher Secondary School, Thalakulathur, Kozhikode and that she is constrained to approach this Court impugning Exts. P1,P2,P3 and P7, as per which, a period of 85 days – during which she had availed Leave Without Allowances - has been directed to be treated as “non duty” and she has been ordered to refund the salary and emoluments for the said period.

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The petitioner asserts that the impugned orders are wholly untenable because, even assuming that Ext. P7 Government Order dated 7-8-2012 is applicable to her – as has been asserted by the Educational Authorities in this case - she would be still entitled to maternity leave for 180 days, as per the provisions of Rule 100 of Chapter IX Part I of the Kerala Service Rules (KSR); and therefore, that merely because Government has issued Ext. P7 order clarifying that Part Time Teachers are not eligible for Leave Without Allowances, the benefit of leave during the 85 days, when she was recuperating after delivery could not

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WP(C).No.14132 OF 2020

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have been denied to her because she has taken the said leave continuously along with the maternity benefit of 90 days, granted validity to her.

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The petitioner, therefore, prays that Exts. P1,P2,P3 and P7 be set aside and the Authorities be directed to regularize her services and to pay the eligible salary at the earliest.

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In addition to the above, Shri. Rameshan

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Nambisan, learned counsel for the petitioner, submitted that, on 17-12 2020, when this matter was considered by this Court, a direction had been issued to the 2^nd respondent to ensure that salary of the petitioner is paid without any delay. He alleged that, in spite of this, no action has been taken by the 2^nd respondent as of now.

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In response, the learned Government Pleader,

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Sri. Sunil Kumar Kuriakose, submitted that the Educational Authorities are bound by Ext.P7 Government Order, which makes it clear that no Leave Without Allowances can be granted to Part Time Teachers and therefore, that the petitioner cannot now impell the contention that the period of 85 days, spent by her on such leave, will have to be construed as duty or that the salary and emoluments for that period cannot be recovered. He, therefore,

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WP(C).No.14132 OF 2020

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prayed that this writ petition be dismissed; adding that the 2^nd respondent has complied with the interim order of this Court dated 17-12-2020 and that her salary bills have already been sent for payment.

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When I consider the afore submissions and examine Ext. P7 order closely, it is doubtless that Government has made it clear that Part Time Teachers are incapacitated from availing Leave Without Allowances, since, such provisions are not available in the KSR. However, while issuing Exts. P1,P2,P3 and P7 orders, the competent Authorities appear to have omitted to take into account the impact of Rules 100 and 102 of Chapter IX Part I of the KSR, which allows every woman employee maternity leave for 180 days.

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In the case at hand, the petitioner, admittedly, was granted maternity leave for 90 days only and she was, therefore, forced to take another 85 days as Leave Without Allowances. Had the petitioner been granted the statutory leave of 180 days, then it would not have been necessary for her to apply for Leave Without Allowances and it is clear that it is only because she was denied such, that she was constrained to avail another form of leave.

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I am, therefore, of the firm opinion that the

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WP(C).No.14132 OF 2020

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Educational Authorities are in error in not having even considered this crucial aspect.

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That said, since this Court has already directed payment of salary to the petitioner through interim order dated 17-12-2020 and since the learned Government Pleader says that same is being complied with, I have no doubt that salary of the petitioner will be disbursed without any further delay.

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In the result, I order this writ petition and set aside Ext. P6 order; consequently directing the District Educational Officer, Calicut to reconsider the claim of the petitioner, taking into account the sweep of Rules 88, 100 and 102 of Chapter IX Part I of the KSR and after affording her an opportunity of being heard - either physically or through virtual conference – thus culminating in an appropriate order, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.

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Needless to say, the interim order of this Court dated 17-12-2020 is confirmed and the 2^nd respondent will ensure that salary is paid to the petitioner without break, subject to the afore decision to be taken by the DEO.

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At this time, Sri. Rameshan Nambisan sought permission

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to cite precedents covering the field before the DEO and I,

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WP(C).No.14132 OF 2020

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therefore, leave liberty to the petitioner to do so when she is heard by the said Authority, who shall then advert to the same also while completing the afore exercise.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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SMF/25.01

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WP(C).No.14132 OF 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE S1/7/2017/G.EDN D 2ND RESPONDENT.	ORDER NO. ATED 8.11.2017 OF THE
EXHIBIT P2	TRUE COPY OF THE DATED 8.2.2018 OF	ORDER NO. B4/8916/15 THE 2ND RESPONDENT.
EXHIBIT P3	TRUE COPY OF THE DATED 20.11.2019	ORDER NO. B4/8916/15 OF THE 2ND RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE OF THE 3RD RESPON	LETTER DATED 17.02.2020 DENT.
EXHIBIT P5	TRUE COPY OF THE 09.03.2020 SUBMIT BEFORE THE 3RD RE	REPRESENTATION DATED TED BY THE PETITIONER SPONDENT.
EXHIBIT P6	TRUE COPY OF THE DATED 12.06.2020	ORDER NO.B4/8916/15 OF THE 3RD RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE NO.253/2012 DATED	ORDER. G.O(MS) 07.08.2012.

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//TRUE COPY// PA TO JUDGE

Sumi T.V. v. State of Kerala

Case brief

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Sumi T.V. v. State of Kerala

Case brief

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