Asha Rani.K. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938** ## **WP(C).No. 23981 of 2014 (W)** **----------------------------** ## **PETITIONER :** **----------------------** **ASHA RANI.K., L.P.S.A., CENTRAL A.U.P. SCHOOL, PARIYAPURAM, MALAPPURAM-676 302.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** ## **RESPONDENT(S):** **-----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,** **GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT EDUCATIONAL OFFICER, TIRURANGADY, MALAPPURAM-676 101.** **4. THE ASSISTANT EDUCATIONAL OFFICER, TANUR, MALAPPURAM-676 302** **5. THE MANAGER, CENTRAL A.U.P. SCHOOL, PARIYAPURAM, MALAPPURAM-676 302.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.P.V.ELIYAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 23981 of 2014 (W)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **---------------------------------------** - **P1. TRUE COPY OF THE APPOINTMENT ORDER DATED 7-1-2013 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT.** - **P2. TRUE COPY OF THE ORDER NO. L.DIS. B-181/2013 DATED 26-7-2013 ISSUED BY THE 4TH RESPONDENT. (TRUE ENGLISH TRANSLATION OF EXT.P2)** - **P3. TRUE COPY OF THE ORDER DATED 31-5-2013 IN WPC NO. 13741/2013 OF THIS HON'BLE COURT.** - **P4. TRUE COPY OF THE ORDER NO. K.DIS.B4/7587/2013 DATED 26-12-13 ISSUED BY THE 3RD RESPONDENT. (TRUE ENGLISH TRANSLATION OF EXT.P4)** - **P5. TRUE COPY OF THE WPC NO. 13741/2014 FILED BY ONE JAYASREE.K. BEFORE THIS HON'BLE COURT. WITHOUT EXHIBITS** - **P6. TRUE COPY OF THE APPOINTMENT ORDER DATED 7/1/2013 OF THE PETITIONER CONTAINING THE APPROVAL OF THE 4TH RESPONDENT DATED4/4/2016.** **RESPONDENT(S)' EXHIBITS:** ## **NIL** **--------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## ALEXANDER THOMAS, J. ----------------------------- W.P(C).No.23981 Of 2014 --------------------------------- Dated this the 4th day of July, 2016. ## J U D G M E N T ## The prayers in this Writ Petition are as follows: “i) Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exts.P2 and P4 and quash the same; ii) issue a writ of Mandamus or other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as LPSA made as per Ext.P1 with effect from 7.1.2013; iii) declare that the appointment of the petitioner as LPSA is liable to be approved with effect from 7.1.2013; iv) issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” ## The amended prayers in this Writ Petition are as follows: “i(a) To issue a writ of certiorari or any other appropriate writ, order, or direction, calling for the records leading to Ext.P-5 and quash the same to the extent it approved the petitioner's appointment as LPSA from 7.1.2013 to 31.3.2013 on daily wage basis. i(b) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as L.P.S.A in the regular scale of pay with effect from 7.1.2013 and to grant all consequential benefits arising there from.” 2. Heard Sri.P.J.Elvin Peter, learned counsel appearing for the petitioner and the learned Government Pleader appearing for respondents 1 to 4. Though the 5[th] respondent-Manager has been duly ::2:: ## W.P(C).No.23981 Of 2014 served, he has not chosen to enter appearance. It is pointed out by the petitioner that the 5[th] respondent-Manager is fully supporting the claim of the petitioner. 3. Sri.P.J.Elvin Peter, learned counsel for the petitioner submits that major part of the petitioner’s grievances have been effectively redressed by the educational authorities concerned by the issuance of Ext.P-6 proceedings dated 4.4.2016 whereby the statutory educational officer concerned, viz., 4[th] respondent-AEO, Tanur, has approved the appointment of the petitioner as Lower Primary School Assistant (LPSA) in the 5[th] respondent-Aided U.P.School, on regular basis in the regular scale of pay with effect from 1.6.2013. But that he further has ordered approval of the appointment of the petitioner to the said post merely on daily wage basis for the period from 7.1.2013 to 31.3.2013. It is pointed out by the learned counsel for the petitioner that the petitioner is fully satisfied with the direction given by the 4[th] respondent-AEO in the proceedings dated 4.4.2016 referred to in Ext.P-6 to the extent her appointment has been approved in the post of LPSA in the regular scale of pay for the period from 1.6.2013 onwards and the limited subsisting grievance now faced by the petitioner is only that instead of allowing approval of her appointment for the period from 7.1.2013 also on ::3:: W.P(C).No.23981 Of 2014 regular basis, the educational authority has chosen to limit by ordering that approval of appointment of the petitioner in the said post for the period from 7.1.2013 to 31.3.2013 shall be treated only for the purpose of drawing daily wages. It is contended by the petitioner that it is not in dispute that the educational authorities have appointed the petitioner in the regular vacancy on 7.1.2013 by Ext.P-1 in a regular vacancy caused by the retirement of Smt.K.Prabha, with effect from 31.12.2012 and therefore her appointment with effect from 7.1.2013 as per Ext.P-1 is in respect of a regular vacancy which would have been continuing even after the academic year 2012-13 as the said vacancy existed even beyond 31.3.2013. It is urged that the fact that the appointment of the petitioner was on a regular vacancy as discernible from Ext.P-6 and that the petitioner has been appointed to the said post with effect from 7.1.2013 and further that even the 4[th] respondent-AEO has considered that the petitioner is entitled for approval on that appointment in regular scale of pay from 1.6.2013 onwards itself clearly shows that the vacancy to which the petitioner was appointed on 7.1.2013 is one which was continuing from 7.1.2013 onwards, to extend even beyond that academic year, etc. It is urged by the learned counsel for the petitioner that the matter in issue is no longer res integra and it is ::4:: W.P(C).No.23981 Of 2014 covered by the ruling of the Apex Court in the case State of Kerala v. Sneha Cheriyan reported in 2013 (1) 755 KLT (SC), etc. The learned counsel would also urge his contention in the light of various Government Orders referred to in the said judgment of the Apex Court as well as other Government Orders. As the decision in the matter of approval of the petitioner as LPSA has been rendered only by the first level educational authority concerned viz., 4[th] respondent-AEO, this Court is of the considered opinion that this Court may desist from the adjudication on merits of the matter and may remit the matter to the educational authorities for consideration of these crucial aspects of the matter based on the decision of the apex Court in Sneha Cheriyan’s case (supra) as the same has not been taken into account by that officer. In that view of the matter, the impugned order dated 4.4.2016 of the 4[th] respondent-AEO referred to in Ext.P-6 to the limited extent it restricts the approval granted to the petitioner as LPSA for the period from 7.1.2013 to 31.3.2013 as one only for drawing daily wages is set aside and remitted. It is made clear that the decision taken by the 4[th] respondent in the proceedings dated 4.4.2016 referred to in Ext.P-6 to the extent it approves the appointment of the petitioner from 1.6.2013 on regular scale of pay basis is upheld and is not interfered by this ::5:: W.P(C).No.23981 Of 2014 Court. Based on the said quashment of the restrictive condition imposed by the 4[th] respondent-AEO in the proceedings dated 4.4.2016 referred to in Ext.P-6, the matter in that limited regard is remitted to the 4[th] respondent-AEO afresh. The petitioner’s claim that he was indeed appointed in the said regular vacancy from 7.1.2013 which had subsisted even beyond the end of the academic year 2012-13 and it was a regular vacancy on account of the retirement should be considered by the educational authority in the light of the ruling of the Apex Court in Sneha Cheriyan’s case (supra) as well as the Government Orders that may be urged by the petitioner. Consequently, the claim of the petitioner that he is entitled not only for approval on regular basis for the period from 7.1.2013 onwards but also eligible for vacation salary for the period from 1.4.2013 to 31.5.2013 should also be pointedly considered by the 4[th] respondent-AEO. The petitioner is at liberty to submit a detailed representation in that regard and produce a copy of the decision of the Apex Court in Sneha Cheriyan’s case (supra) as well as the Government Orders concerned on which she proposes to place reliance. This the petitioner may do within a period of two weeks from the date of receipt of a certified copy of this judgment. The 4[th] respondent-AEO will give a reasonable opportunity of being heard to ::6:: W.P(C).No.23981 Of 2014 the petitioner as well as the 5[th] respondent-Manager and take a considered decision thereon on these aspects of the matter, at any rate, within a period of two months from the date of receipt of a copy of this judgment along with a representation as directed above. With these observations and directions, this Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-