Allowed

Raheema.P.v v. State of Kerala

Kerala HC1 Mar 2024WP(C)/5843/2021

Case brief

AI extract

What is this about?

A teacher appointed as HSA (Urdu) in 2009 and continued in service based on extended staff fixation orders was denied salary from 2012 to 2019 after staff fixation revision. The court held the department's failure to deploy her could not justify non-payment, allowed the writ petition, and directed grant of all service benefits.

What did the court decide?

Exts.P7 & P8 orders denying salary from 15.07.2012 to 26.11.2019 set aside; respondents directed to grant service benefits including salary and allowances within four months; interest denied.

Raheema.P.v Vs State of Kerala — Education and Admissions | Kerala HC (2024)

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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 T.R.RAVI

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FRIDAY, THE 1^ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945

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WP(C) NO. 5843 OF 2021

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PETITIONER:

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RAHEEMA.P.V AGED 39 YEARS, W/O. HABEEB, HSA (URDU), THACHINGANADAM H.S WANDOOR, MALAPPURAM, NOW ON DEPLOYMENT TO PMSA HSS, ELANKUR (RESIDING AT VELLOLIL HOUSE, MOORKANAD, URNGATTERY P.O., AREEKODE VIA, MALAPURAM-673639) BY ADVS. T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SHRI.T.R.VISHNU SHRI.NAZEER HUZAIN.H

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNEMNT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX, THIRUVANANTHAPURAM-695 001.

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2 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014.

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3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF DDE, MALAPPURAM-676 504.

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4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DEO, WANDOOR, MALAPPURAM-676 504.

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WP(C) NO. 5843 OF 2021

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5 THE MANAGER THACHINGANADAM H.S., THACHINGANADAM P.O., MALAPPURAM-676 325.

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BY ADVS. SMT.S.L.SHYLAJA, GOVERNMENT PLEADER SRI.JAYENDRAN KOCHOTH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5843 OF 2021

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T.R. RAVI, J.

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W. P. (C). No.5843 of 2021

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Dated this the 1 st day of March, 2024

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JUDGMENT

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The petitioner was appointed as HSA (Urdu) in an additional division vacancy with effect from 10.06.2009. The appointment was not approved initially citing management disputes. Later by Ext.P1, approval was granted from 10.06.2009 to 31.03.2010 on daily wages. This was extended as approval with scale of pay till 14.07.2010. Staff fixation orders for 2010-11 and 2011-12 provided for second post of HST (Urdu). By orders issued by the Government, the staff fixation order for 2010-11 was extended till 28.01.2016. On 29.01.2016, G.O.(P) No.29/2016/G.Edn. was issued revising the staff fixation. Till 2016, the Managers were also permitted to make appointments, even though there were no specific staff fixation orders available. The petitioner continued in the post till 2016 and even thereafter. Even though Government Orders were issued directing that persons found to be remaining in Schools without posts are to be deployed by 09.09.2016, in the case of the petitioner, nothing was done. By Ext.P4, the

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WP(C) NO. 5843 OF 2021

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Government considered the issue and it is stated that when the staff fixation is revised from 2012-13 to 2015-16, one full time post of HSA (Urdu) was found to be reduced. The order also says that the petitioner was entitled to protection till 2015-16. The order Ext.P4 says that no post was available in 2012-13. However, the said finding cannot be sustained in view of the fact that the Government had issued orders earlier, to the effect that staff fixation for 2010-11 will continue till 2016. The person who was allowed to continue in service based on Government Orders which were issued properly, cannot later be told that there was no post available and he is liable to be terminated. This Court has considered similar issues in WP(C) Nos.37644/2017 and 38114/2018. In both the above said cases, this Court has found that persons who were appointed in approved posts during 201022 are entitled to continue till 2015-16, on the basis of the Government Orders issued and the Government Orders issued on 29.01.2016 cannot have the effect of taking away their rights. This Court allowed the claim of the petitioners to salary for the said periods of appointments. A different view is not called for in this case also since admittedly, the petitioner was continued in

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WP(C) NO. 5843 OF 2021

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service. The only contention of the State is that there was no post available when the staff fixation was revised subsequently. The said contention has already been repelled in the aforesaid writ petitions. The judgments therein have become final since no appeals have been preferred.

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2 . The next question is whether the petitioner is entitled to protection of the salary from 2016 till 25.11.2019 till which period the petitioner has not been paid salary but was continuing in employment. The Government had issued G.O.(P)

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No.148/2016/G.Edn. on 31.08.2016, which deals with deployment of protected teachers. As can be seen from Ext.P4, the petitioner was entitled to protection even otherwise. Going by the judgments referred to above, the petitioner was entitled to remain till 2016 on the basis of the extension of the staff fixation order from 2010-11. The question then is whether for the failure of the Department to deploy the petitioner, the petitioner should be denied of the salary for the period during which she was worked. G.O.(P) No.148/2016/G.Edn. dated 31.08.2016 specifically says that re-deployment should be done by 09.09.2016. It can be seen that the order has been endorsed by the DPI and necessary

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WP(C) NO. 5843 OF 2021

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instructions have also been issued to the Educational Officers. On

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08.02.2016, orders have been issued to all the Deputy Directors directing that deployment should be taken up on a war-footing and

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completed by 23.08.2016. In spite of the said orders, if the petitioner was not deployed, the fault cannot be that of the petitioner. A Teacher should be paid for the period during which she was worked. After getting the service, it is unfair to say that she cannot be given salary, on a reason that she ought to have been deployed. A failure in duty of the respondents cannot be held against the petitioner. In the above circumstances, I hold that the petitioner is entitled to the salary till 25.11.2019.

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In the result, the writ petition is allowed. Exts.P7 & P8 orders

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to the extent they denied salary and allowance to the petitioner from 15.07.2012 to 26.11.2019 are set aside. There will be a direction to the respondents to grant all the service benefits including salary and allowances to the petitioner in the post of HSA (Urdu) from 15.07.2012 to 26.11.2019. Even though there is a prayer for grant of 16% interest for the delayed payment of salary, I do not think it is proper for this Court to grant interest. The monetary benefits shall be granted to the petitioner within a period

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of four months from the date of receipt of a certified copy of this

judgment.

Sd/-

T.R. RAVI

JUDGE

WP(C) NO. 5843 OF 2021

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APPENDIX OF WP(C) 5843/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT ON 10.6.2009.

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EXHIBIT P2 TRUE COPY OF CIRCULAR NO.31904/J2/12/G.EDN DATED 6.6.2012. EXHIBIT P3 TRUE COPY OF CIRCULAR NO.45285/J2/13/G.EDN DATED 30.7.2013.

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EXHIBIT P4 TRUE COPY OF GOVERNEMNT LETTER NO.S2/156/2017/G.EDN DATED 9.4.2018. EXHIBIT P5 TRUE COPY OF REVIEW PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNEMNT ON 28.5.2019. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 13.6.2019 IN WPC NO.16073/2019. EXHIBIT P7 TRUE COPY OF GO(RT)NO.5119/2019/G.EDN DATED 26.11.2019. EXHIBIT P8 TRUE COPY OF ORDER NO.B3/43268/2019/K.DIS DATED 13.1.2020 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P9 TRUE COPY OF GO(P) NO.119/2018/G.EDN DATED 23.8.2018.

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EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 13.1.2021 IN WPC 28336/2020 PASSED BY THIS HON'BLE COURT.

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WP(C) NO. 5843 OF 2021

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RESPONDENTS' EXHIBITS

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EXHIBIT R4(a) TRUE COPY OF ORDER NO. A3/1314/2016 DATED 17.03.2016 EXHIBIT R4(b) TRUE COPY OF ORDER NO. D.DIS/A3/3699/2013 DATED 15.05.2014 EXHIBIT R4(c) TRUE COPY OF ORDER NO.D.DIS/A3/3620/2014 DATED 26.07.2014 EXHIBIT R4(d) TRUE COPY OF ORDER NO.D.DIS A3/4251/2015 DATED 23.02.2016

Raheema.P.v v. State of Kerala

Case brief

What is this about?

What did the court decide?

Raheema.P.v v. State of Kerala

Case brief

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