High Court of KeralaSingle Judge2018-02-01The writ petition is ordered accordingly.

Indu P.V. v. State of Kerala and others

Case / Petition Number:WP(C).No. 20269 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2018-02-01
Court Decision / Holding: The court directs the second respondent (DPI) to re-examine the petitioner’s claim for appointment on a regular scale of pay, taking into account the Government Orders and circulars in force and the staff-fixation orders from 2008-09 onwards, with notice to the petitioner. Orders are to be passed within three months from the date of receipt of a copy of this judgment, after hearing the petitioner.
Final Disposition: The writ petition is ordered accordingly.

Parties to the Case

Appellants / Petitioners

Indu P.V., W/o.Bigesh, aged 29 years, LPSA Attadappa No. II L.P.School, Attadappa (P.O.), Kannur-670006

Respondents

State of Kerala, Represented by Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-695001
Director of Public Instructions, Jagathy, Thiruvananthapuram-695001
Additional Director (Academic), General Education Department, Secretariat, Thiruvananthapuram-695001
District Educational Officer, Kannur-670612
Assistant Educational Officer, Kannur South(P.O), Chakkarakkal, Kannur District-670612
Manager, Attadappa No. II L.P.School, Attadappa(P.O.), Kannur-670006

Legal Representation & Advocates

Counsels for Petitioners

• Adv. C. Ajith Kumar

Counsels for Respondents

• Smt. Renjitha
• Sri Nikhil John

Case Synopsis & Summary

Indu P.V., a Lower Primary School Assistant at Attadappa II L.P. School, Kannur, filed this writ petition seeking a direction to grant approval for her appointment as LPSA on a regular scale of pay from 01.12.2008. She contends she was appointed against a promotion vacancy in a regular vacancy; however, DPI rejected approval on two grounds: there was no approved Manager for the school, and the school was uneconomic. The petitioner claims that after the Manager’s appointment, there were subsequent orders on file restoring eligibility, and that the petition should be considered on a regular scale, especially in light of government orders and staff-fixation measures. The respondents counter that, in uneconomic schools, fresh appointments must be made only on a daily-wage basis via protected teachers and that the appointment of the petitioner's post must be regulated accordingly. They also cite Circular No. 4545/J2/2007 and recall that even when a post is available, it must satisfy the minimum strength criteria. The Division Bench decision in State v. Nadeera is cited by the petitioner but the court notes that DPI’s failure to apply the minimum average class strength constraints has not been properly examined. The court ultimately directs the DPI to re-examine the petitioner’s eligibility for regular scale of pay, taking into account minimum average student strength and staff-fixation orders from 2008-09 onwards, with notice to the petitioner, and to pass appropriate orders within three months of receipt of this judgment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends she was appointed on 01.12.2008 against a regular vacancy. Approval was denied on grounds of no approved Manager and uneconomic status of the school. She argues that with the Manager’s approval and subsequent orders, the petition should be considered for regular scale, relying on Government Orders and staff-fixation measures; Ext.P18 shows favorable treatment in similar cases; the DPI failed to examine eligibility under minimum strength rules and to apply Circular 6.11.2012 in the present case. She seeks directions for regularization from 01.12.2008 upon fulfilling minimum strength and staff norms.

Contentions of Respondents

The respondents submit that uneconomic schools require fresh appointments to be on daily wages via protected teachers and that an approved Manager is essential. They rely on Circular 4545/J2/2007 G.Edn and 58604/J2/12/GEdn to support daily-wage appointments in absence of protected teachers and to restrict regular appointments by minimum strength criteria. They contend that the petition should be decided after proper verification of availability of protected teachers and compliance with staff-fixation orders.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Nadeera	2013(2) KLT 88 (DB)	Mentioned Only	Cited by the petitioner in support of the contention; the court does not expressly adopt or overrule it.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939** **WP(C).No. 20269 of 2017** ## **PETITIONERS:** **INDU P.V., W/O.BIGESH, AGED 29 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, ATTADAPPA NO.II.L.P.SCHOOL, ATTADAPPA(P.O.), KANNUR-670006.** **BY ADV.SRI.C.AJITH KUMAR** ## **RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY,THIRUVANANTHAPURAM-695001.** **3. ADDITIONAL DIRECTOR(ACADEMIC), GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.** **4. THE DISTRICT EDUCATIONAL OFFICER, KANNUR-670612.** **5. THE ASSISTANT EDUCATIONAL OFFICER, KANNUR SOUTH(P.O), CHAKKARAKKAL, KANNUR DISTRICT-670612.** **6. THE MANAGER, ATTADAPPA NO.II L.P.SCHOOL, ATTADAPPA(P.O.), KANNUR-670006.** **R1-R5 BY GOVERNMENT PLEADER SMT.RENJITHA R6 BY ADV. SRI.NIKHIL JOHN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 20269 of 2017 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.12.2008 ISSUED BY THE PETITIONER BY THE 6TH RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE ORDER NO.B/7363/08.K.DIS DATED 22/12/2008 OF THE 5TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE ORDER NO.B6/332/09 DATED 27/02/2009 OF THE 4TH RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.B3/6315/09 DATED 31.03.2009 OF THE 3RD RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.G4/77951/DPI/K.DIS DATED 09/03/2010 OF THE 3RD RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE LIST OF EXCESS TEACHERS WORKING WITHOUT SALARY, WHICH INCLUDES THE NAME OF THE PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.B/5401/2011/K.DIS DATED 08/12/2011 OF THE 5TH RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.B6/11262/11/K.DIS DATED 28/03/2012 OF THE 4TH RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.G4/62541/2006/DPI/K.DIS DATED 25/10/2012 OF THE 2ND RESPONDENT APPROVING THE TRANSFER OF MANAGEMENT OF 6TH RESPONDENT SCHOOL.** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO.B/192/2012/K.DIS DATED 24/11/2012 OF THE 5TH RESPONDENT** - **EXHIBIT P11 TRUE COPY OF THE APPEAL DATED 06/12/2012 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT** - **EXHIBIT P12 TRUE COPY OF ORDER NO.G4/3464/2013/DPI/K.DIS DATED 08/02/2013 OF THE 3RD RESPONDENT** - **EXHIBIT P13 TRUE COPY OF ORDER NO.G4/18509/2013/DPI/K.DIS DATED 15/04/2013 OF THE 3RD RESPONDENT** - **EXHIBIT P14 TRUE COPY OF THE APPEAL DATED 08/05/2013 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** - **EXHIBIT P15 TRUE COPY OF G.O(RT)NO.4470/2014/G.EDN. DATED 24/10/2014 OF THE 1ST RESPONDENT** **WP(C).No. 20269 of 2017 (G)** **EXHIBIT P16 TRUE COPY OF PETITION DATED 27/10/2014 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF EDUCATION,KERALA EXHIBIT P17 TRUE COPY OF PETITION DATED 03/08/2016 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF EDUCATION,KERALA EXHIBIT P18 TRUE COPY OF THE G.O.NO.G4/33833/12/DPI/K.DIS DATED 09.07.2012.** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R4(A) A TRUE COPY OF THE CIRCULAR DATED 18.5.2007** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANU SIVARAMAN, J. -------------------------------W.P.(C)No. 20269 of 2017 --------------------------------Dated this the 1[st] day of February, 2018** ## **J U D G M E N T** ## **------------------** This writ petition is filed seeking directions to the respondents to grant approval for the appointment of the petitioner as LPSA from 01.12.2008 on a regular scale of pay basis. It is submitted that the petitioner was appointed on 01.12.2008 in a promotion vacancy. Approval was rejected on the ground that there was no approved Manager and that the school was an uneconomic school. Though the Manager had preferred an appeal, the appeal was also rejected stating that all vacancies in uneconomic schools should have been filled up by appointing protected teachers. The petitioner's name was included in the teachers package. Thereafter, the transfer of Management was approved and the approved Manager again sent up a request for grant of all benefits to the petitioner. By Ext.P12 order dated 8.2.2013, the DPI directed the consideration of the claim of the petitioner for approval with effect from 01.12.2008 on a regular scale of pay taking W.P.(C).No. 20269 of 2017 2 note of a minimum required student strength in the school. However, this was not done. By Ext.P13 proceedings, the Director passed orders recalling the earlier orders and stating that the petitioner's appointment could have been approved only from 01.06.2011 and that too, only on daily wage basis. The reason stated was the school which the petitioner was working was an uneconomic school. Though the petitioner had preferred revision against the said order, the revision was ordered by Ext.P15. The findings in Ext.P15 order were as follows:- _4. As per the general orders of Government now prevailing in the matter of uneconomic schools vide Circular 58604/J2/12/GEdn, regular appointments in an uneconomic school can be provided only on daily wages and such appointments can be reviewed by DPI for approving it on scale of pay basis only if it comes within the purview of minimum strength specified in the said circular. Hence even if there is a post available, it can be filled on scale of pay basis only if the condition of minimum strength is satisfied. Hence Smt.Indu P.V. is liable for approval w.e.f.1.10.2011 if the school satisfied the conditions of minimum strength._ _5. In the circumstances, Government are pleased to uphold the decision of the Director of Public Instructions to approve the appointment of Smt.Indu.P.V., as LPSA in Attadappa LPS on daily_ W.P.(C).No. 20269 of 2017 3 _wages and the DPI to review the appointment on scale of pay w.e.f. 1/10/11 only if the conditions of minimum student strength as specified in Circular 58604/J2/12 dated 6.11.2012 is satisfied._ 2. The petitioner contends that though detailed request had been made by the petitioner before the authorities, no orders have been passed on the petitioner's request. It is stated that in the case of similarly situated teachers, the benefit of approval of appointment with effect from the date of initial appointment on a regular scale of pay has been granted taking note of the average class strength required going by the Circular dated 6.11.2012. Ext.P18 is an order issued by the Government in this regard. 3. A counter affidavit has been filed on behalf of the 4[th] respondent. It is stated that though the petitioner was appointed as LPSA on 01.12.2008 in a promotion vacancy, since the school was an uneconomic school, all vacancies ought to have been filled up by appointing protected teachers. It is stated that the petitioner was included in the teachers bank, but her name was removed from the teachers bank as per Ext.P7 order, for the reason that the school does not have W.P.(C).No. 20269 of 2017 4 an approved Manager. It is stated that the approval has since been accorded for the appointment of a Manager but the petitioner's school is an uneconomic school. It is stated that the list of protected teachers was published by the Deputy Director of Education and was available in his office at Kannur. It is stated that by Circular No.4545/J2/2007 G.Edn dated 18.05.2007, the Government has clarified that even in case of non availability of protected teachers, fresh appointment is permissible only on a daily wage basis. 4. I have considered the contentions advanced. The petitioner had been appointed in a regular vacancy as on 01.12.2008. The two reasons stated for rejecting the approval was that there was no approved Manager and that the school was uneconomic. The issue of approval of the Manager has been resolved by Ext.P10 order. The approved Manager has also requested for approval of appointment of the petitioner. The issue of appointments in uneconomic schools has also been specifically noticed in Ext.P15 order, wherein it has been stated that the DPI has to review the appointment on scale of pay if the conditions of minimum student strength as specified W.P.(C).No. 20269 of 2017 5 in circular dated 6.11.2012 is satisfied. This exercise apparently has not been done by the DPI. The petitioner's specific case is that there was no protected teacher available in the District as on the date of the petitioner's appointment as on 01.12.2008. It is therefore contended that in the absence of any specific case that protected teachers were available for appointment to the vacancy and the list of such teachers had been made available to the Manager, the Manager was under no obligation to fill up the post by appointing the petitioner. The learned counsel for the petitioner relies on the decision of the Division Bench of this Court in _**State of Kerala v. Nadeera** [2013(2) KLT 88 (DB)]_ in support of his contention. With regard to the approval on a scale of pay on minimum average class strength of 15 being satisfied, it seems that no effort has been taken by the respondents to see whether the petitioner's appointment could have been approved in a regular scale of pay in accordance with the availability of the minimum student strength. I am of the opinion that the eligibility of the petitioner for appointment against the post of LPSA on a regular scale of pay has to be re-examined by the W.P.(C).No. 20269 of 2017 6 DPI, taking note of the availability of minimum average student strength as also the eligibility of the petitioner for regular appointment against the minimum required staff strength even in an uneconomic school. These aspects have to be considered by the DPI with notice to the petitioner and taking note of the staff fixation orders for the years from 2008-09 onwards. 5. In the above view of the matter, there will be a direction to the second respondent to take up and consider the claim of the petitioner for appointment in a regular scale of pay taking note of the Government Orders and circular dated 6.11.2012 as also the staff fixation orders for the years 200809 onwards. Orders in this regard shall be passed after hearing the petitioner also, within a period of three months from the date of receipt of a copy of this judgment The writ petition is ordered accordingly. ## **ANU SIVARAMAN JUDGE** // True copy // P.A. To Judge rmm/6/2/18 W.P.(C).No. 20269 of 2017 7 The following corrections are carried out in the judgment dated 01.02.2018 in W.P.(C) No.20269/2017: The words “the Manager was under no obligation to fill up the post by appointing the petitioner” occurring in the 4[th] paragraph of the judgment are corrected and substituted as “the Manager was under no obligation to fill up the post by appointing a protected teacher.” The words “and circular dated 06.11.2012” occurring in the 5[th] paragraph of the judgment are deleted. Vide order dated 28.02.2017 in W.P.(C) No.20269/2017. Sd/Registrar(Judicial)