Jasmine Mary Chacko v. State of Kerala and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944`** ## **`WP(C) NO. 27464 OF 2019`** ``` PETITIONER: ``` ``` JASMINE MARY CHACKO HSST (JR) COMPUTER APPLICATION, ST. BEHANAN’S HSS, VENNIKULAM, PATHANAMTHITTA. ``` ``` BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. ``` ``` RESPONDENTS: ``` ``` 1STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM 695001. 3REGIONAL DEPUTY DIRECTOR, DIRECTORATE, HIGHER SECONDARY EDUCATION, THAMBAYATHIL BUILDING, CHENGANOOR, ALAPPUZHA 689 121. ``` W.P.(C) No. 27464/2019 2 ``` 4CORPORATE MANAGER, (CATHOLICATE AND M.D. SCHOOL) CORPORATE MANAGEMENT), DEVALOKAM, KOTTAYAM-686 038. ``` ``` SRI PREMCHAND R NAIR, SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No. 27464/2019 3 ## **J U D G M E N T** The petitioner has approached this Court seeking to quash Ext.P4 Government Order as per which the request made by the petitioner to upgrade her post from Higher Secondary School Teacher (Junior) (Computer Application) in the St.Behanan’s HSS, Vennikulam to Higher Secondary School Teacher (‘HSST’) stands rejected. The petitioner has sought for a declaration that the post is liable to be upgraded in accordance with Ext.P1 recommendation issued by the 3rd respondent and for incidental reliefs. 2. The brief facts which are required to be stated for disposal of the writ petition are as under: The petitioner contends that she is working as a Higher Secondary School Teacher (Junior) (hereinafter referred to as ‘HSST (Jr.)’, for the sake of brevity) in the St.Behanan’s HSS, Vennikulam, an aided school managed by the 4th respondent and governed by the provisions of the Kerala Education Act, 1958 and the Rules framed thereunder. She contends that the approval of her appointment was granted on 14.09.2012. According to the petitioner, as per Ext.P1 proceedings of the Regional Deputy Director (‘RDD’), Chengannur, staff W.P.(C) No. 27464/2019 4 fixation was carried out and upon finding that the workload had exceeded 15 periods per week, there was a recommendation for the upgradation of the post of HSST(Jr)(Computer Application) to HSST. In the said circumstances, the Corporate Manager submitted an application before the 3rd respondent. However, by Ext.P2 order, the request was rejected on the ground that HSST(Jr.) post was sanctioned on 25.05.2004 under extraordinary circumstances and there is no condition therein that the post has to be upgraded. Being aggrieved, the petitioner is stated to have preferred Ext.P3 revision petition before the 1st respondent. Pursuant to orders passed by this Court, the revision petition was taken up by the 1st respondent, and the same was rejected by Ext.P4 order. It is in the aforesaid circumstances, that the petitioner is before this Court seeking to quash Ext.P4 and for consequential reliefs. 3. In the counter affidavit filed by the 1st respondent, it is stated that it was in terms of Ext.R1(a) Government Order dated 26.07.2000 that higher secondary courses with two batches in Science and one batch in Commerce were sanctioned in the St.Behanan’s HSS, Vennikulam. During the academic year 2001-2002, there were two Higher Secondary School Teachers in Mathematics, and approval was granted. Later, the Manager of the School suo motu introduced Computer Application instead of Mathematics and appointed W.P.(C) No. 27464/2019 5 the petitioner to that post. By Ext.R1(b) order dated 25.05.2004, the Government accorded sanction to change the subject combination of Mathematics to Computer Application on a condition that there shall not be any additional financial commitments by the Government on account of the subject change that has been ordered. According to the 1st respondent, though the 3rd respondent had conducted an inspection and on the basis of the staff fixation order had recommended that HSST(Jr.) (Computer Application) is to be upgraded as HSST from 2009-2010, the said proposal was rejected by the 2nd respondent on the ground that the creation of the post of HSST(Jr.) was sanctioned for the limited purpose of regularising the appointment of the petitioner. The said order was passed as a special case and therefore there cannot be an upgradation of the post. 4. Sri. Jacob P Alex, the learned counsel appearing for the petitioner submitted that the request made for upgradation of post from HSST (Jr.) to HSST was rejected on frivolous grounds. It is submitted that Ext.P1 staff fixation order clearly reveals that the workload had exceeded 15 hours per week. According to the learned counsel, the only question is whether the petitioner satisfies the condition in Rules 3 and 4 of Chapter XXXII of the KER. It is further submitted that the issue raised in this writ petition is covered by the law laid down by this Court in **State of Kerala and Ors. v. K.V.Sreejith** W.P.(C) No. 27464/2019 6 **and Ors.** [2019 (2) KLT 253] and in **Fr. Somy Mathew and Another v. State of Kerala and Ors.** [2021 (5) KHC 551]. 5. The learned Government Pleader has opposed the submissions. It is submitted that approval of the appointment of the petitioner was granted as a special case and one of the conditions was that there shall not be any financial commitments. 6. I have considered the submissions advanced and have perused the records. 7. To appreciate the contentions advanced, the relevant provisions of the law have to be averted to. 8. Rule 1 of Chapter XXXII of the KER defines an HSST and HSST (Jr.) as follows: “(d) ‘Higher Secondary School Teacher’ means a Higher Secondary School Teacher of an aided school whose workload is 15 or more periods per week per subject. (e) ‘Higher Secondary School Teacher (Junior)’ means a Higher Secondary School Teacher of an aided school whose workload is less than 15 or more periods per week per subject.” 9. As defined above, Rule 1(d) of Chapter XXXII of the KER defines a Higher Secondary School Teacher to mean a Higher Secondary School Teacher W.P.(C) No. 27464/2019 7 of an aided school whose workload is 15 or more periods per week per subject. HSST(Jr.) has been defined under Rule 1(e) to mean a HSST of an aided school whose workload is less than 15 periods per week per subject. 10. Rule 3 of Chapter XXXII governs the manner in which posts are to be sanctioned to Higher Secondary Schools. The said provision reads thus: - “3. The service of every aided Higher Secondary School shall consist of all or any of the following categories of posts as the Director may sanction…” (emphasis supplied) 11. Rule 3 states that the service of every aided Higher Secondary School shall consist of all or any of the following categories of posts as the Director may sanction. 12. A Division Bench of this Court in **K.V.Sreejith** (supra) had occasion to hold that while interpreting the provisions of the Rules that upgradation cannot be a matter of policy of the Government and would depend on an increase in the workload of a teacher beyond 15 periods. The upgradation would depend on the parameters contained in Chapter XXXII K.E.R., referred to above. After examining the statutory provisions, it was held as follows in paragraphs 7 and 8 of the judgment. 7.……………………...In the above context, it is necessary to notice that Rule 3 of Chapter XXXII governs the manner in which posts are to be sanctioned to Higher Secondary Schools. Rule 3 to the W.P.(C) No. 27464/2019 8 extent relevant reads as under:- 3. The Kerala Aided Higher Secondary Education Service-- The service of every aided Higher Secondary School shall consist of all or any of the following categories of posts as the Director may sanction. 8. What is necessary to be noticed from the above provision is that, the service of every aided Higher Secondary School is directed to consist of all or any of the categories of posts mentioned therein “as the Director may sanction”. Therefore, the authority to sanction posts, going by Rule 3 above is the Director of Higher Secondary Education. In the above context, the definitions in Rule 1(d) and (e) being relevant are extracted herein below:- - (d) ‘Higher Secondary School Teacher’ means a Higher Secondary School Teacher of an aided school whose work load is 15 or more periods per week per subject. - (e) ’Higher Secondary School Teacher (Junior)’ means a Higher Secondary School Teacher of an aided school whose work load is less than 15 periods per week per subject. The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week. The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week. W.P.(C) No. 27464/2019 9 A Higher Secondary School Teacher means a Higher School Teacher whose workload is 15 or more periods per week per subject. It therefore follows that, a Higher Secondary School Teacher (Junior) has to be upgraded to the post of Higher Secondary School Teacher, once the workload exceeds 15 periods per week. The above exercise has to be done by the Director of Higher Secondary Education, going by Rule 3 of Chapter XXXII. It is only in the matter of creation of posts that the State has power. As per Exhibit P2, posts of H.S.S.T. (Junior) were sanctioned by the Government with effect from 06.08.2011 onwards. The question as to whether the said posts were to be upgraded to H.S.S.T. would depend on whether the workload had exceeded 15 hours per week. The authority to assess the said situation and to sanction such upgradation is the Director of Higher Secondary Education. In the present case, the Director of Higher Secondary Education had recommended for such sanction to the Government. The Government accepted the said recommendation and has issued Exhibit P3 Government Order upgrading the posts but subject to the condition that such upgradation shall take effect only prospectively from the date of the order. Though we have tried to ascertain the basis for fixing the date of the Government Order as the date from which such upgradation has been directed to take effect, the only explanation is that since the matter involved financial commitments, it was part of the policy of the Government to do so. We find no other explanation. Since going by the Rules, the upgradation has to depend on increase in the workload of a teacher beyond 15 periods, it cannot be said that upgradation is a matter of policy of the Government. The policy of the Government would end when posts are sanctioned by it. Thereafter, upgradation would have to depend on the parameters contained in Chapter XXXII K.E.R., referred to above. In these cases, as the Higher Secondary Schools were sanctioned during the year 2010, it W.P.(C) No. 27464/2019 10 is not in dispute that the courses had continued to be conducted thereafter, without any break. Therefore, the students who were admitted in the year 2010-11, would certainly have come to the second year of the course during 2011-12. The teachers who were appointed initially as guest lecturers have been accommodated in the newly sanctioned posts of H.S.S.T.(Junior), with effect from 06.08.2011 onwards. The question as to whether they were entitled to be upgraded as H.S.S.T.would depend on the workload of each one of them, as indicated above. …………………………... 13. As held by this Court, a HSST(Jr.) has to be upgraded to the post of HSST once the workload is 15 periods or more and the said exercise has to be done by the Director of Higher Secondary Education as per the mandate under Rule 3 of Chapter XXXII. It can only be in the matter of the creation of posts that the State has power. The question as to whether the said posts are to be upgraded to HSST would depend on the solitary question as to whether the workload is at least 15 hours per week. Upgradation cannot be regarded as a matter of policy of the Government as the policy of the Government would end when posts are sanctioned by it. 14. In the case on hand, Ext.P1 proceedings issued by the 3rd respondent would reveal that there were more than 15 periods for Computer Applications and the RDD in the light of relevant rules had recommended for upgradation of HSST (Jr.) post to HSST from the academic year 2009-2010 W.P.(C) No. 27464/2019 11 onwards. As held by this Court in **K.V. Sreejith** (supra), the question as to whether the posts were to be upgraded to HSST would depend on whether the workload is at least 15 hours per week. The authority to assess the said situation and to sanction such upgradation is the Director. The RDD had no jurisdiction to reject the application for upgradation for the reasons stated in the order. No rider can be imposed by the Government as upgradation is in accordance with the Rules which will have precedence over executive orders. In that view of the matter, the rejection of the request for the upgradation of the post to HSST cannot be said to be proper. 15. In view of the discussion above, the petitioner is entitled to succeed. The following orders are issued a) Ext.P4 will stand quashed. - b) It is held that HSST (Jr.) (Computer application) Post in the St. Behanan’s HSS, Pathanamthitta is liable to be upgraded as HSST post in accordance with Ext. P1 recommendation. Consequently, there will be a direction to the respondents 1-3 to upgrade HSST (Jr.) (Computer Application) post in the St. Behanan’s HSS, Pathanamthitta as HSST. - c) Consequent to the upgradation of the post as ordered above, the petitioner shall be entitled to the higher scale of pay with effect W.P.(C) No. 27464/2019 12 from 04.02.2017, the date on which the post was recommended for upgradation as per the staff fixation order. Sd/- ## **RAJA VIJAYARAGHAVAN V,** **JUDGE** PS/13/6/2021 W.P.(C) No. 27464/2019 13 ## **`APPENDIX OF WP(C) 27464/2019`** ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE STAFF FIXATION SANCTION ORDER BEARING NO.C7/9706/RDD/HSE/CNGR DATED 4.2.2017 ISSUED BY 3RD RESPONDENT. ``` ``` EXHIBIT P2 ``` ``` TRUE COPY OF THE ORDER BEARING NO. 9706/C7/2017/RDD/CNGR DATED 9.2.2018 ISSUED BY THE 3RD RESPONDENT. ``` ``` EXHIBIT P3TRUE COPY OF THE REVISION PETITION DATED 15.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ``` ``` EXHIBIT P4 ``` ``` TRUE COPY OF ORDER BEARING NO. GO (RT) NO.3577/2019/GEDN DATED 4.9.2019 ISSUED BY 1ST RESPONDENT. ``` ``` RESPONDENTS’ EXHIBITS: ``` ``` EXHIBIT R1(a)TRUE COPY OF G.O.(MS)NO.243/2000/GEDN DATED 26.07.2000 ``` ``` EXHIBIT R1(b)TRUE COPY OF G.O(MS)NO.139/2004/GEDN DATED 25.05.2004 ``` ``` EXHIBIT R1(c)TRUE COPY OF G.O.(MS) NO.285/2012/G.EDN DATED 14.09.2012 ```