Asha.S v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.V.RAMAKRISHNA PILLAI** ## **TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936** ## **WP(C).No.37140 of 2009 (J) -------------------------------------** **PETITIONER:** - **--------------------** ## **ASHA.S,VIRUTHIPARAMBIL,KOTTAKKAKOM, MAVELIKARA P.O.,HSA (HINDU), PART-TIME IN DVNSSHS, OTHERA (RETRENCHED).** ## **BY ADV. SRI.S.SUBHASH CHAND** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA,THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM.** **2. DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKARA.** **4. THE GENERAL MANAGER AND INSPECTOR, N.S.S.SCHOOLS,PERUNNA P.O.,CHANGANACHERRY-686 102.** **5. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.** **6. THE DY. DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA.** - **R1 TO R3,R4 AND R5 BY SENIOR GOVT. PLEADER SRI.P.FAZIL R4 BY SRI.P.G.PARAMESWARA PANICKER (SENIOR ADVOCATE.) ADV.SRI.P.GOPAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2014 THE COURT ON 28-10-2014,DELIVERED THE FOLLOWING:** **pk** ## **WP(C)NO.37140/2009** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1:TRUE COPY OF THE APPOINTMENT ORDER NO.A1/9676/2001 DATED 20.9.2001.** **EXT.P2:TRUE COPY OF THE APPOINTMENT ORDER NO.A1/5528/2002 DATED 4.6.2002 ISSUED BY THE 4TH RESPONDENT.** **EXT.P3:TRUE COPY OF THE ORDER NO.A1/4346/2004 DATED 26.5.2004.** **EXT.P3(a):TRUE COPY OF THE ORDER NO.B6-6880/L DIS.DATED 18.8.2004.** **EXT.P4:TRUE COPY OF THE PROCEEDINGS OF THE DEO,MAVELIKARA,ORDER NO.B6/5307/D DIS/2007 DATED 23.7.2007.** **EXT.P5:TRUE COPYU OF PROCEEDINGS NO.A1 4782/2007 OF THE CORPORATE MANAGER DATED 11.7.2007.** **EXT.P6:TRUE COPY OF GOVERNMENT ORDER NO.GO(MS)62/73/S.EDN DATED 2.5.73.** **EXT.P7:TRUE COPY OF PETITIONER'S REPRESENTATION DATED 18.8.07.** **EXT.P8:TRUE COPY OF LETTER DATEDE 8.4.08.** **EXT.P9:TRUE COPY OF REPRESENTATION FILED IN JUNE 2008.** **EXT.P10:TRUE COPY OF ORDER DATED 16.8.08 PASSED BY THE 6TH RESPONDENT.** **EXT.P11:TRUE COPY OF ORDER DATED 14.7.08.** **EXT.P12:TRUE COPY OF ORDER DATED 17.9.08.** **EXT.P13:TRUE COPY OF ORDER DATED 15.10.09.** **EXT.P14:TRUE COPY OF THE GOVERNMENT ORDER BEARING GO (P) NO.187/2005/G.EDN.DATED 17.6.2005.** **EXT.P15:TRUE COPY OF THE ORDER BEARING NO.ET5/42893/DPI/K.DIS. DATED 18.9.2008 ISSUED BY RESPONDENT NO.2.** **EXT.P16:TRUE COPY OF THE APPOINTMENT ORDER DATED 15.7.2008 ISSUED TO SRI.SYAMKUMAR P. BY RESPONDENT NO.4.** **RESPONDENTS EXHIBITS:** **NIL** **//TRUE COPY//** **P.S. TO JUDGE** **pk** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.37140 of 2009 --------------------------------------------Dated this the 28[th] day of October, 2014 ## **JUDGMENT** Exts.P5, P8, P10, P11 and P13 orders are under challenge in this writ petition. 2. The petitioner alleges that she worked continuously from 6.6.2002 till 12.7.2007 as a Full Time HSA (Hindi) in the schools under the management of the 4[th] respondent, and though she worked in a regular vacancy of Full Time HSA (Hindi) entitling her for the benefits under Rule 51A Chapter XIV A of KER and Ext.P6 Government order (G.O.(MS) No.62/73/S.Edn.dated 2.5.1973), the 4[th] respondent reverted and transferred her from Full Time HSA (Hindi), NSS High School, Kurathikad to NSS High School Othara vide Ext.P5 order as Part-time HSA (Hindi). Her further grievance is that subsequently, the WPC No.37140 of 2009 2 4[th] respondent retrenched her from service by Ex.P11 order stating that the second and fifth respondents have not approved the post of PT HSA (Hindi) in NSS High School, Othera on the ground that the said school is an uneconomic one and the benefit of protection could not be extended to the appointment in that school. The petitioner alleges that now she is without any job and is in financial difficulties as well as in great mental agony. The petitioner alleges that she was transferred to an uneconomic school and more over, she is entitled for protection under Rule 51A and Ext.P6 order and is eligible to be retained as Full Time HSA with full salary till she is accommodated in a regular vacancy. She is entitled for full salary from 13.7.2007 onwards as a protected teacher. It is with this background, the petitioner has come up before this Court. 3. The 4[th] respondent has filed a counter affidavit contending as follows:- WPC No.37140 of 2009 3 The petitioner was appointed as HSA (Hindi) in the NSS School, Palkulangara by Ext.P1 order dated 20.9.2001. She has got service as HSA (Hindi) under the 4[th] respondent from 6.6.2002 onwards. During the academic year 2002-2003, she was transferred and posted as HSA (Hindi), NSS High School, Perumpulikal by Ext.P2 order dated 4.6.2002. The petitioner joined duty on 6.6.2002. In the academic year 2004-2005, the petitioner was transferred from NSS High School, Perumpulikal to NSS High School, Kurathikad by Ext.P3 order dated 26.5.2004. The 4[th] respondent also averred that the post of HSA (Hindi) in NSS High School, Chingavanam has been abolished as per the staff fixation order for the year 2007-2008. The management transferred Smt.Jayalakshmi.K., senior to the petitioner working in NSS High School, Chingavanam to the post of HSA (Hindi) at NSS High School, Kurathikad reverting the petitioner who was WPC No.37140 of 2009 4 junior most teacher to the post of Part Time HSA (Hindi) at NSS High School, Othera by Ext.P5 order dated 11.7.2007. Vacancy of HSA (Hindi) did not arise in any of the schools under the management for the academic year 2007-2008. During the academic year 2008-2009, the post of HSA (Hindi) in the NSS Girls High School, Pandalam and in the NSS High School, Kudasanad became excess and has been abolished. Seniors to the petitioner, Smt.Sindhu B.Nair working as HSA (Hindi) at NSS Girls High School, Pandalam and Smt.Indulekha.S. working as HSA (Hindi) at NSS High School, Kudasanad were transferred and posted at NSS High School, Thattayil and at NSS High School, Kurathikadu respectively. Smt.T.N.Umadevi working as HSA (Hindi) at NSS High School, Thattayil has been reverted as Part time HSA (Hindi) and posted at NSS High School, Othera. The petitioner working as Part time HSA (Hindi) in the NSS High School, Othera has been WPC No.37140 of 2009 5 retrenched from service for want of vacancy from 14.7.2008 onwards as she has no lien as Lower Grade/Part Time Lower Grade Hindi Teacher. Smt.Jayalakshmi, HSA (Hindi) working at NSS High School, Kurithikad has been reverted as Part Time HSA (Hindi) and posted at NSS High School, Kesavadasapuram after reverting and posting C.V.Veerendranath at NSS High School, Vaipur by Ext.P11 order dated 14.7.2008; it is contended. The qualification prescribed for the post of HSA (Hindi) is Degree in Hindi with B.Ed or Diploma in Hindi Teachers Training etc. The qualification prescribed for the post of Upper Primary School Assistant (for short (Hindi) is a Degree in Hindi conferred or recognized by the Universities in Kerala or title of oriental learning in Hindi awarded or recognized by the Universities in Kerala etc. It is contended by the 4[th] respondent that the petitioner is the only retrenched HSA (Hindi) under NSS Corporate Management and she has claimed WPC No.37140 of 2009 6 for appointment as HSA (Hindi) in the vacancies arising as HSA (Hindi) in future under NSS Corporate Management of Schools. It is contended that since the petitioner has no lien over the post of Lower Grade/Part Time Lower Grade Hindi Teacher she is not entitled for appointment to the vacancies arising in the said posts in the Upper Primary/Lower Primary Schools under the management. It was further contended that the petitioner is not entitled for protection in the post of Full Time HSA (Hindi) as per the orders issued by the Government regarding protection in force at the relevant time. The teachers appointed from 15.7.1997 have no right for protection as per G.O. (P)240/99/G.Edn.dated 29.9.1999. Hence, Ext.P6 Government order dated 2.5.1973 has no relevance; it is contended. 4. The 5[th] respondent filed a counter affidavit contending as follows: The petitioner was reverted due to abolition of WPC No.37140 of 2009 7 posts in NSS HS, Kurathicad consequent on the fixation of staff during 2007-2008. She was appointed as Part Time HSA (Hindi) from 13.7.2007 onwards at DVNSS H.S, Othera by the 4[th] respondent, Manager. The school belongs to NSS Corporate management and under the jurisdiction of the 5[th] respondent. The appointment of the petitioner as Part Time HSA (Hindi) was rejected by the 5[th] respondent, since the school is an uneconomic school. It is contended that while working as HSA at NSSHS, Kurathicad, the petitioner was appointed as Part Time HSA (Hindi) for the period from 13.7.2007 under the school having jurisdiction of the 5[th] respondent. The said appointment was made by the management against the vacancy of one Sri.Syamkumar P. who was reverted as L.G.(Hindi) at NSS HS, Palode with effect from 13.7.2007. The 5[th] respondent rejected the appointment by order dated 8.4.2008 for the reason that the school is an WPC No.37140 of 2009 8 uneconomic one and only a protected teacher can be appointed against the existing vacancies in uneconomic schools. As per Circular No.4545/J2/07 dtd.18.5.2007 the appointments of Rule 43, 51A and 51B claimants also cannot be considered for approval in the school after 12.10.2006. The petitioner submitted a representation on 11.8.2007 for getting the protection benefits as Full Time w.e.f. 13.7.2007. The appointment of the petitioner is rejected as per order dated 8.4.2008 after examining her representation. It is submitted that as per G.O.(P) No.259/06/G.Edn.dated 12.10.2006, the vacancy in uneconomic school should be filled up of a protected teacher. In the case of the petitioner she was reverted with effect from 13.7.2007 due to the abolition post consequent to fixation of staff strength under the educational agency during 20072008. By G.O.(MS) No.62/73/G.Edn. Full time benefit is eligible for the Part Time Language WPC No.37140 of 2009 9 Teachers those who have put in more than 5 years of service and 8 periods in a week. The aforesaid Syamkumar P. Part Time (Hindi) teacher was allowed the benefit up to 2006-2007 i.e. till his reversion. But the petitioner was not given the benefits of the Government Order on her appointment at DVNSS H.S, Othera. The petitioner was working as HSA (Hindi) from 6.6.2002 to 12.7.2007 and thereafter she was reverted from 13.7.2007. The appeals and revisions filed against the order of rejection passed by this respondent have also been rejected upholding the decision of the 5[th] respondent. The petitioner was retrenched with effect from 14.7.2008 for want of vacancy and as she has no lien as Lower Grade/Part Time Lower Grade Hindi teacher by order dated 14.7.2008. Thereafter the petitioner was again appointed as HSA (Hindi) at NSSHS, Kaviyoor on daily wages from 18.9.2008 to 30.11.2008 by the Manager. The said school is also WPC No.37140 of 2009 10 situated within the limits of the 5[th] respondent. The said appointment was made against the Leave Without Allowance vacancy of one Sreelatha for 77 days from 15.9.2008 to 30.11.2008. The said appointment has already been approved. The petitioner is having regular continuance service as HSA (Hindi) from 6.6.2002 to 12.2.2007 under the NSS Management. As per existing Government orders the vacancies in uneconomic schools should be filled up of a protected hand. Since the petitioner was reverted to an uneconomic school, her appointment was rejected by this respondent. The date of continuance service of the petitioner is with effect from 6.6.2002 and she is not eligible for protection. When the reduction of post occurred under the educational agency, the junior teachers according to the seniority can be reverted and as such there is no illegality in reverting the petitioner as Part Time (Hindi)Teacher. The reversion was also necessitated due to fall in WPC No.37140 of 2009 11 division and abolition of posts. ## 5. Arguments have been heard. 6. The learned counsel for the petitioner would submit that Ext.P11 order passed by the 5[th] respondent retrenching the petitioner is opposed to law. He would argue that the petitioner had continuous service of more than 5 years as a Full Time HSA (Hindi) and therefore, she is entitled for the benefits as per Ext.P6. It is further argued that the petitioner is entitled for preference for appointment as Full Time HSA (Hindi). It was further argued that Ext.P5 order reverting the petitioner as part time and posting her at NSS HS, Othera is illegal and against the provisions of the Kerala Education Act and Rules thereunder. The main allegation is that Ext.P6 Government order which is binding on the respondent was totally ignored while considering the petitioner's case. It was further pointed out that the right conferred on the petitioner under Rule 51A could not be denied WPC No.37140 of 2009 12 for the reason that she was posted to an uneconomic school as PTHSA. It was also argued that the petitioner was transferred from NSS.H.S., Kurathikad to NSS H.S., Othera as per Ext.P5 when there were two posts of Full Time HSA (Hindi) at NSS HS, Kurathikad and therefore, the 4[th] respondent ought to have retained the petitioner at NSS HS, Kurathikad. It was pointed out that this crucial aspect has not been considered by the respondents. 7. The 4[th] respondent as per Ext.P2 order dated 4.6.2002 appointed the petitioner as HSA (Hindi) at NSS High School, Perumpulikal in the pay scale of Rs.4600-7125 in an existing regular vacancy. While working as HSA (Hindi) where the 4th respondent on 26.5.2004 transferred her from NSS High School, Perumpulikal and posted as HSA (Hindi) in NSS High School, Kurathikad with effect from 2.6.2004 as per Ext.P3 order dated 26.5.2004. She joined duty as HSA (Hindi) on 2.6.2004 in the WPC No.37140 of 2009 13 said school and worked there till 12.7.2007 in the regular vacancy. It can be seen from Ext.P3(a) that the third respondent District Educational Officer, Mavelikkara has approved the transfer of the petitioner from NSS High School, Perumpulickal to NSS HS, Kurathikad. 8. Inviting my attention to Ext.P4 order dated 23.7.2007 issued by the District Educational Officer, it was pointed out by the learned counsel for the petitioner that as per the staff fixation proceedings of the NSS High School, Kurathikad for year 20072008, there were two posts of HSA (Hindi) at NSS High School, Kurathikad for the year 2007-2008. 9. The learned counsel for the petitioner points out that however, the 4[th] respondent reverted and transferred the petitioner who was working as a full time HSA (Hindi) in a regular vacancy from NSS High School, Kurathikad to NSS High School, Othera as part time HSA (Hindi) with effect from 13.7.2007 as per Ext.P5. It was pointed WPC No.37140 of 2009 14 out that the petitioner had no option, but she joined duty as PT (HSA) Hindi in the NSS High School, Othera with effect from 13.7.2007 as per Ext.P5 order. The petitioner points out that since she was entitled to be accommodated in a full time post HSA (Hindi), she filed a detailed representation before the DEO, Thiruvalla pointing out that she had completed 5 years continuous service and 9 periods of work and therefore, she is entitled for the benefit as full time teacher as per Ext.P6 G.O.(P) No.62/73/S.Edn. dated 2.5.1973. Ext.P7 is the copy of the representation. Though the 4[th] respondent requested for approval of Ext.P5 order, the same was rejected by the 5[th] respondent as per Ext.P8 stating the following: “The school is uneconomic. As per circular No.4545/J2/07 dated 18.5.2007 Para (4), the appointments of Rule 43, 51A and 51B claimants in the school cannot be considered. Hence rejected”. 10. On receiving Ext.P8, the petitioner again WPC No.37140 of 2009 15 sent a representation to the 5[th] respondent requesting for approval of her transfer and posting at Othera as she was not a fresh appointee and worked there till 12.7.2007 in a regular post and the transfer was necessitated due to the abolition of the post. Ext.P9 is the copy of the said representation where she was specifically pointed out that she was entitled for the benefit of Ext.P6 order. Though the 4[th] respondent has preferred an appeal against Ext.P8 order before the 6[th] respondent who is the Deputy Director of Education, Pathanamthitta rejected the same by Ext.P10. Consequent to the reduction of post of HSA (Hindi) under the NSS Management, the 4[th] respondent retrenched the petitioner from service with effect from 14.7.2008 as per Ext.P11 denying the benefit of Ext.P6 Government order. Later, the petitioner received another Ext.P13 order dated 15.10.2009 from the second respondent rejecting the revision petition filed by the 4[th] respondent for approval of the WPC No.37140 of 2009 16 appointment of the petitioner as HSA (Hindi) Parttime in the DVNSS High School, Othera. 11. It is evident from the records now produced before this Court that the petitioner had continuous service of more than five years as full time HSA (Hindi) under the same management, i.e. the 4th respondent's management. She satisfies 8 period criteria stipulated in Ext.P6 order for making part-time posts as full time. It is evident from Ext.P4 that there were two sanctioned posts of HSA (Hindi) at NSS HS, Kurathikad during the academic year 2007-2008. Therefore, her transfer as per Ext.P5 from Kurathikode to Othera is opposed to general principles of transfer provided in the KER. 12. The stand taken by the 4[th] respondent is that the said transfer was on account of the division fall in NSS High School, Kurathikkad. The petitioner was reverted and posted as part time HSA (Hindi) at NSS High School, Othera by Ext.P5 order in the reversion post of one Syamkumar P. as LG Hindi WPC No.37140 of 2009 17 Teacher at NSS High School, Palode. The said reversion has come into effect from 13.7.2007 onwards, since then the petitioner was denied salary and allowances. 13. It was argued by the learned counsel for the petitioner that the said Syam Kumar P. is junior to the petitioner in service. At NSS High School, Palode his appointment as LG Hindi Teacher is initially not approved by the District Educational Officer, Attingal on the ground that he was a High School Assistant (Hindi) and he did not have any lien on the post of LG Hindi Teacher. However, the Director of Public Instruction, Thiruvananthapuram in a statutory revision petition held that being a Rule 51A claimant, he was entitled to the benefit of the amended provisions contained in Rule 51A Chapter XIVA KER introduced by the Government order bearing G.O.(P) No.187/2004/G.Edn.dated 17.6.2005 and accordingly, his appointment was directed to be approved with effect from 13.7.2007 WPC No.37140 of 2009 18 onwards. True copy of the said Government order is produced as Ext.P14 and true copy of the order of approval is produced and marked as Ext.P15. 14. The above facts would indicate that the petitioner was denied salary and allowances from 13.7.2007 onwards while her junior was given salary and allowances. Again by Ext.P11 order, she was retrenched from service with effect from 14.7.2008 onwards for want of vacancy as she was having allegedly no lien as LG (PT) Hindi Teacher. 15. In the light of Exts.P14 and P15 referred to above, this Court is of the view that retrenchment of the petitioner was absolutely illegal and the petitioner ought to have been accommodated as LG (Hindi) teacher in view of the categoric amendment brought in the body of Rule 51A Chapter XIVA KER. When the petitioner's junior was provided with the benefits as per Ext.P15 order it is discriminatory that the same benefit was not extended to the petitioner. Further, the petitioner's junior was WPC No.37140 of 2009 19 accommodated from 15.7.2008 onwards by the Manager in NSS High School, Kunnamthanam as per Ext.P16 order dated 15.7.2008 contrary to Ext.P11 order. It was submitted by the learned counsel for the petitioner that the said appointment was approved by the District Educational Officer with effect from 15.7.2007 and he was disbursed salary and allowances and he is still continuing in service. 16. It is disturbing to note that the benefits extended to the petitioner's junior in the matter of accommodation in service have not been extended to her. Refusal to approve the petitioner's service on the ground that NSS High School, Othera was an uneconomic school is hit by a decision of a learned single judge of this Court in _**Ciji P.Jose**_ v _**State of Kerala and others**_ (2012 KHC 181). While the petitioner was thrown out of service holding that she did not hold any lien on the post of LG Teacher by Ext.P11 order, his junior has been accommodated by Ext.P15 order granting the WPC No.37140 of 2009 20 benefit of Rule 51A chapter XIV KER. Therefore, this Court has no hesitation to hold that the impugned orders has resulted in gross injustice to the petitioner. 17. On a consideration of the entire materials now placed on record, this Court is of the view that this writ petition can be allowed. Hence, this writ petition is allowed. Exts.P5, P8, P10, P11 and P13 are quashed. It is hereby declared that the petitioner is entitled for the benefits of the amended provisions in Rule 51A Chapter XIV KER introduced by G.O.(P) No.187/2004/G.Edn.dtd.17.6.2005 and the petitioner is entitled to be accommodated as L.G.(Hindi Teacher) with effect from 13.7.2007 and her appointment as L.G.Hindi Teacher with effect from 13.7.2007 is directed to be approved by the 5[th] respondent. The 4[th] respondent is directed to reappoint the petitioner in any of the schools under his management and to retain her as a protected WPC No.37140 of 2009 21 teacher till she is accommodated in a regular full time vacancy. Needless to say that the respondents shall draw and disburse to the petitioner her eligible salary consequent to the above direction. Formal orders to this effect shall be issued within a period of three months from the date of receipt of a copy of this judgment. **sd/-A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy ## P.S.TO JUDGE The words “L.G.(Hindi Teacher)” occurring in the 5[th] , 6[th] and 7[th] lines of operative portion of the judgment are corrected and substituted as “Part Time HSA (Hindi), with Full Time benefit”,vide order dated 1.12.2014 in I.A.No.16210/2014 in WPC No.37140/2009. Sd/- Registrar (Judicial)