Dismissed

Sindhu P. Sreedhar v. State of Kerala

Kerala HC8 Jan 2021WP(C)/31623/2019

Case brief

AI extract

What is this about?

In this writ petition, the petitioner, an HSA Hindi teacher deployed as Cluster Coordinator, sought redeployment with pay protection. The single-judge court found that pay protection under Rule 52(1) KER applies only to reappointment in the same post for retrenched teachers. Further, the court dismissed the challenge to the employer's appointment of another teacher, which was necessitated by a cou

What did the court decide?

Reliefs seeking redeployment with pay protection and challenging the appointment of the 6th respondent were dismissed; petitioner retains claim against future vacancies.

Sindhu P. Sreedhar Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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WP(C).No.31623 OF 2019(C)

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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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FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

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WP(C).No.31623 OF 2019(C)

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PETITIONER:

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SINDHU P. SREEDHAR AGED 46 YEARS HSA(HINDI),KARIYELI,KOMBANADU.P.O, KURUPPAMPADI, ERNAKULAM-682546, PRESENTLY ON DEPLOYMENT AS CLUSTER COORDINATOR BLOCK RESOURCE CENTRE,KOTHAMANGALAM.

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BY ADVS. SRI.M.A.FAYAZ SMT.C.B.ABHINAVA

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RESPONDENTS:

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1 STATE OF KERALA REP.BY SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM695001.

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2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHI,THIRUVANANTHAPURAM-695014.

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3 THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM-682011.

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4 THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM-686691.

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5 THE MANAGER, ST.MARY'S HIGH SCHOOL,KARIYELI, KOMBANADU.P.O, KURUPPAMPADI, ERNAKULAM-683546.

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WP(C).No.31623 OF 2019(C)

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6 SMITHA P.MATHEW, LOWER GRADE HINDI TEACHER, KARIYELI, KOMBANADU.P.O, KURUPPAMPADI, ERNAKULAM-683546.

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R1-4 BY GOVERNMENT PLEADER R5 BY ADV. SRI.ELVIN PETER P.J. R5 BY ADV. SRI.K.R.GANESH R5 BY ADV. SRI.P.RAMAKRISHNAN R6 BY ADV. SRI.DEEPU THANKAN R6 BY ADV. SMT.UMMUL FIDA R6 BY ADV. SMT.LAKSHMI SREEDHAR R6 BY ADV. SRI.E.JIJOBAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2020, THE COURT ON 08-01-2021 DELIVERED THE FOLLOWING:

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WP(C).No.31623 OF 2019(C)

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JUDGMENT

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Dated this the 8^th day of January 2021

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1. The reliefs in this writ petition are as follows:-

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(i) Issue a Writ of Mandamus directing the 3^rd respondent to take immediate steps to redeploy the petitioner as LG (Hindi) Teacher at St.Mary’s High School Karlyili, Kombanadu P.O, Ernakulam managed by the 5^th respondent forth with.

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(ii) To call for the records leading to the issuance of Exts. P4 order of the 1^st respondent and set aside the same, to the extent it denies the benefit of pay protection to the petitioner on redeployment as LG (Hindi) Teacher under the 5^th respondent by issuing a Writ in the nature of certiorari.

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(iii) To declare that in the light of Exhibits P5 and P6 Government orders petitioner is entitled for pay protection on getting redeployment as LG (Hindi) Teacher under the 5^th respondent, as petitioner is continuing on protection from the date she was found excess.

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(iv) To declare that the petitioner who was deployed as Cluster coordinator on protection, if redeployed back to 5^th respondent school as LG (Hindi) Teacher will not amount to reappointment, and therefore will not come under the preview of Ext.P12 Circular No.1237/J1/12/G.Edn dated 18.02.2012, and hence will be entitled for pay protection in the scale of HSA (Hindi)

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(v) To direct the 4^th respondent not to approve the appointment of the 6^th respondent as LG (Hindi) Teacher and also to declare the said appointment of 6^th respondent over looking the claim of the petitioner to get redeployment as LG (Hindi) Teacher is illegal.

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WP(C).No.31623 OF 2019(C)

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(vi) To declare that petitioner is entitled to get redeployment as LG (Hindi) Teacher in 5^th respondent's school in the light of Exts. P8, P9 and P10 Judgments and also Ext.P11 order issued by the 3^rd respondent in an identical circumstance.

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Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for respondents 5 and 6.

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The petitioner was appointed as HSA (Hindi) in the St.Mary's High School managed by the 5^th respondent w.e.f 02.06.2004. Pursuant to staff fixation order dated 06.04.2016, one post of HSA (Hindi) became excess and the petitioner was deployed as Cluster Coordinator protecting her pay. The 5^th respondent requested the retention of the petitioner as LG (Hindi) teacher in the same school. But the said request was turned down by Ext.P3. The matter was taken in revision and by Ext.P4 order dated 16.11.2017, the request for retention of Hindi teacher was allowed, but the request of the petitioner for pay protection was declined.

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The petitioner filed W.P.(C) No.40907/2017 seeking the following reliefs:-

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i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P6 and quash the same to the extent the petitioner is denied pay protection as

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WP(C).No.31623 OF 2019(C)

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per Ext.P3 on retention as LG (Hindi) teacher under the 4^th respondent.

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ii) Declare that Ext.P7 order is not applicable in granting the request of the petitioner as per Ext.P4 and P5 for retention as LG (Hindi) teacher under the 4^th respondent from the academic year 2015-16.

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iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to implement Ext.P6 with pay protection as HSA (Hindi) now enjoyed by the petitioner.

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An interim relief was also sought for as follows:-

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For the reasons stated in the writ petition, as well as in the affidavit accompanying thereto, it is humbly prayed that this Hon'ble Court may be pleased to stay the operation and further proceedings pursuant to Ext.P6 enabling the petitioner to continue in the present post, pending disposal of the writ petition.

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An interim order was rendered by this Court on 19.12.2017 staying Ext.P6 pending disposal of the writ petition. On 26.11.2019, the said writ petition was dismissed as withdrawn. The petitioner now challenges Ext.P4 order on the ground that the petitioner was eligible for protection of pay on being retained in the parent school in the lower post of LG (Hindi) teacher. Exts. P5 and P6 Government Orders are relied on in support of this contention. It is submitted that, in the meanwhile, the 6^th respondent was appointed as LG (Hindi) teacher in the school, but the appointment has not been approved. It is submitted that the petitioner is entitled and

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WP(C).No.31623 OF 2019(C)

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eligible for appointment as LG (Hindi) teacher in the parent school in preference to the 6^th respondent and is also eligible for protection of pay. It is submitted that Ext.P12 circular dated 18.02.2012, which is relied on in Ext.P4 has no application in the petitioner's case since the petitioner was not retrenched and was only deployed under orders of protection.

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The 1^st respondent has filed a counter affidavit. It is stated that Rule 52(1) of Chapter XIVA KER, which provides that teachers, who are relieved on account of any reduction in the numbers of posts, shall, on re-appointment, start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not is intended for granting protection of pay on reappointment in the same post and the same scale of pay. It is stated that since the petitioner is a teacher, who had lost her post due to staff fixation, she would also be a retrenched teacher and on appointment to lower post in the same school would only be eligible for the scale of pay of the said post. It is submitted that this is the purport of the circular dated 18.02.2012 and the contentions of the petitioner to the contrary are completely untenable.

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WP(C).No.31623 OF 2019(C)

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A reply affidavit has been placed on record by the petitioner stating that the petitioner was granted pay protection when she was deployed as Cluster Coordinator and that the same benefit is to be extended when she is reappointed as LG(Hindi) teacher as well. It is submitted that the circular dated 18.02.2012 only applies to retrenched teachers and the petitioner, who was under orders of protection is not a retrenched teacher. A judgment of this Court in W.A. No.2508/2019 is also relied on to contend that a protected teacher, who was working as HSA, would also be eligible for being recalled to the school when a vacancy arises in the lower post.

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The 5^th respondent has placed a counter affidavit on record. It is submitted that though the petitioner had been redeployed to the same school by Ext.P4 order as L.G.(Hindi) teacher, the petitioner had approached this Court and obtained a stay, which is the reason why post of LG (Hindi) teacher available in the school had to be filled up by appointing the 6^th respondent.

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The 6^th respondent has also placed a detailed counter affidavit on record. Reply affidavits are placed by the petitioner to the counter affidavit filed by the 5^th respondent as well.

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WP(C).No.31623 OF 2019(C)

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The issue to be considered in this writ petition is with regard to the eligibility of the petitioner for protection of pay on being appointed as L.G Hindi Teacher. Rule 52(1) of Chapter XIVA KER reads as follows:

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(1) Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not.

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It is trite law, that a protected teacher is also a teacher, who had approved service, but whose services have been terminated for want of vacancy or want of post in a staff fixation. When such termination of vacancy occurs, the Junior most teacher is rendered surplus and is liable to lose her employment. It is as a measure of protection to such teachers that the Government thought it fit to issue orders providing for protection to teachers and non-teaching staff. The first Government Order on the subject dated 06.03.1969 had ordered that qualified teachers appointed in regular division vacancies and who have two or more years of continued service as on the date of retrenchment are to be retained on affording them protection. It is, therefore, clear that protection is the benefit made available for teachers, who face retrenchment due to division fall or loss of their post. Rule 52(1) specifically provides for pay protection

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WP(C).No.31623 OF 2019(C)

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when a teacher is retained or call back to the same school apparently in the same post. The petitioner seeks to rely on Exts.P5 and P6 Government orders dated 14.02.2003 and 28.06.2002. The said Government orders from a reading of the same are apparently time bound orders. Ext.P13 produced by the petitioner is the Circular dated 18.02.2012. Referring to Rule 52(1) of Chapter XIV A, KER it is specifically clarified that the Rule is intended for granting pay protection to retrenched teachers on re-appointment in the same cadre and the same scale of pay. It appears that the necessity for a clarification arose due to the amendment made to Rule 51A of Chapter XIVA, KER. Retrenched teachers had a right for appointment only against the same category of posts till the amendment in the year 2005. Therefore the prescription in Rule 52 (1) with regard to pay protection would also be applicable only in respect of same post and the same scale of pay. However, after the amendment to Rule 51A, it became possible for a teacher to aspire for appointments in the same or higher or lower category of teaching posts, provided the teacher is qualified for the same.

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10.In the above circumstances, the Government Order issued before the amendment to Rule 51A would not be relevant in as much as the issue of appointment of retrenched teachers in lower or higher

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WP(C).No.31623 OF 2019(C)

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post would arise only after the said amendment. It is in the above factual situation that the Circular dated 08.02.2012 must be viewed. Viewed at from that perspective, it is clear that the purport of Rule 52 (1) has now been explained and limited as granting pay protection only to retrenched teachers being re-called to the same school in the same post. The petitioner, who was a retrenched HSA, could therefore have no claim for protection of pay in the post of HSA, if she chose to accept the appointment as L.G.Hindi teacher. In the above view of the matter, the reasoning in Ext.P4 Government order cannot be faulted.

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11.The petitioner did not join duty as Lower Grade Hindi Teacher on the basis of Ext.P4. Instead, a writ petition was filed claiming pay protection and an interim order of stay of the impugned Government Order was specifically sought for and obtained. The said interim order was rendered on 19.12.2017. It is thereafter that the 6^th respondent was appointed as LG (Hindi) Teacher in the school. In the above factual situation, I am of the opinion that the challenge made by the petitioner against the appointment of the 6^th respondent as LG Hindi Teacher is also not sustainable.

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WP(C).No.31623 OF 2019(C)

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The writ petition, therefore, fails and the same is accordingly dismissed. However, it is made clear that the petitioner will have a claim for appointment against any further vacancy in the school to which she is qualified .

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Sd/-

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Anu Sivaraman, Judge

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sj/svp

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WP(C).No.31623 OF 2019(C)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT W.E.F.02.06.2004,CONTAINING THE ENDORESMENT OF THE APPROVAL BY THE 4TH RESPONDENT.
EXHIBIT P2	PHOTOCOPY OF THE STAFF FIXATION ORDER ISSUED IN RESPECT OF SMHS KARIYELI DATED 06.04.2016.
EXHIBIT P3	PHOTOCOPY OF ORDER NO.B4/8913/2016/DD(E)/K.DIS DATED 20.07.2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4	PHOTOCOPY OF THE GOVERNMENT ORDER NO.G.O(RT)NO.4401/2017/G.EDN DATED 16.11.2017.
EXHIBIT P5	TRUE COPY OF THE G.O(P)NO.41/2003/G.EDN DATED 14.02.2003.
EXHIBIT P6	PHOTOCOPY OF THE G.O(P)NO.178/2002/G.EDN DATED 28.06.2002.
EXHIBIT P7	PHOTOCOPY OF THE INTERIM ORDER IN W.P(C)NO.40907/2017 DATED 19.12.2017.
EXHIBIT P8	PHOTOCOPY OF THE JUDGMENT IN W.P(c)NO.40907/2017 DATED 19.12.2017.
EXHIBIT P9	PHOTOCOPY OF THE JUDGMENT W.A.NO.2165/2019 & W.A.NO.2183 DATED 29.10.2019.
EXHIBIT P10	PHOTOCOPY OF THE JUDGMENT IN W.A.NO.2229/2019 DATED 31.10.2019.
EXHIBIT P11	PHOTOCOPY OF ORDER NO.B5/16132/2019 DATED 09.10.2019 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P12	PHOTOCOPY OF CIRCULAR NO.1237/J1/12/G.EDN DATED 18.02.2012.
EXHIBIT P13	PHOTOCOPY OF THE CIRCULAR
	NO.1237/J1/12/G.EDN DATED 18/2/2012

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WP(C).No.31623 OF 2019(C)

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EXHIBIT P14	PHOTOCOPY OF THE JUDGMENT IN WA NO.2508/2019 DATED 18/12/2019
EXHIBIT P15	PHOTOCOPY OF ADVERTISEMENT ISSUED TO THE 5TH RESPONDENT APPEARING IN MALAYALA MANORAMA NEWS PAPER DATED 29.8.2016
EXHIBIT P16	PHOTOCOPY OF OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 12.9.2016
EXHIBIT P17	PHOTOCOPY OF ORDER NO A1-218/16/SSA(6) DATED 1.9.2016 IS ISSUED BY THE DISTRICT PROJECT OFFICER SSA ERNAKULAM

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RESPONDENT'S EXHIBITS:

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EXHIBIT R5 A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER NO-D.DIS./B4/1023/2016 DATED 6.4.2016 PERTAINING TO THE ACADEMIC YEAR 2012-2013 OF THE 5TH RESPONDENT SCHOOL. EXHIBIT R6 A TRUE COPY OF THE ORDER OF THE DEO, KOTHAMANGALAM ON 28.10.2017 EXHIBIT R6 B TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE OFFICE OF THE 3RD RESPONDENT DATED 14.2.2019 EXHIBIT R6 C TRUE COPY OF THE REVISION MEMORANDUM BY THE MANAGER DATED 14.11.2019 BEFORE THE GOVT.

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True copy

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PS to Judge

Sindhu P. Sreedhar v. State of Kerala

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Sindhu P. Sreedhar v. State of Kerala

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