M.J. Anandavally v. Government of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** **WP(C).No. 23659 of 2012** **-----------------------** **PETITIONER :** **----------** **M.J.ANANDAVALLY, PRIINCIPAL,RETIRED, H.S.S.THIRUVAMPADY, ALAPPUZHA,KRISHNANAD, PAHZAVEEDU P.O., ALAPPUZHA DISTRICT.** **BY ADVS.SRI.K.SURESH SMT.DEEPTHI S.MENON** **RESPONDENTS :** **----------** ## **1. GOVERNMENT OF KERALA** **REPRESENTED BY THE THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM-695 001.** ## **2. THE ACCOUNTANT GENERAL** **OFFICE OF THE ACCOUNTANT GENERAL, (A & E), THIRUVANANTHAPRAM-695 001.** ## **3. THE DIRECTOR** **HIGHER SECONDARY EDUCATION, THIRUVANANTHAPRAM-695 001.** ## **4. THE DEPUTY DIRECTOR** **HIGHER SECONDARY EDUCATION, THIRUVANANTHAPRAM-695 001** ## **5. THE MANAGER** **HIGHER SECONDARY SCHOOL, THIRUVAMPADY, ALAPPUZHA DISTRICT-688 001.** **R1 TO R4 BY GOVERNMENT PLEADER SMT. RANJITHA R5 BY ADVS. SRI.V.A.MUHAMMED** **SRI.V.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 23659 of 2012** ## **-------------------** ## **APPENDIX** |**PETITIONER'S EXHIBITS :**|**PETITIONER'S EXHIBITS :**|| |---|---|---| |**---------------------**||| |**P1:**|**COPY OF THE PROCEEDINGS OF THE R5 DATED 8/7/2005.**|| |**P2:**|**COPY OF THE PROCEEDINGS OF THE R5 DATED 31/3/2006.**|| |**P3:**|**COPY OF THE LETTER DATED 24/10/2008 ALONG WITH NO LIABILITY**|| ||**CERTIFICATE ISSUED BY**|**THE REGIONAL DEPUTY DIRECTOR OF HIGHER**| ||**SECONDARY EDUCATION**|| |**P4:**|**COPY OF THE REPRESENTATION DATED 24/6/2011 OF THE PETITIONER**|| ||**TO THE R1.**|| |**P5:**|**COPY OF THE ORDER NO.**|**ENDTT NO. 34187/TI/2011/G.EDN DATED**| ||**2/7/2011 FORWARDED BY**|**THE R1 TO THE R3.**| |**RESPONDENT'S EXHIBITS :**||**NIL.**| |||**//TRUE COPY//**| |||**P.A. TO JUDGE**| ## **bp** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = = W.P.(C).No.23659 of 2012** **= = = = = = = = = = = = = = = Dated this the 14[th] day of February, 2018** ## **JUDGMENT** The prayers in this writ petition are as follows: (i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to consider and pass appropriate order on Exthibit-P4, at an early date. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 4 to fix the pay in the scale of principal for the period from 12.7.2005 to 31.3.2006 and issue the pensionary benefits accordingly. (iii) Issue a writ of Mandamus directing the 1[st] respondent to release the amount under the Family Benefit Scheme with interest with immediate effect. ## 2. Heard learned counsel for the petitioner and the learned Government Pleader. ## 3. It is submitted by the learned counsel for the petitioner that the petitioner is entitled to be granted the scale **2** W.P.(C).No.23659 of 2012 of pay of Principal in Higher Secondary School w.e.f. 06.01.2006, till the date of her retirement and all consequential benefits, including re-fixation of pay and pension. It is further submitted that for the period from 12.07.2005 to 06.01.2006, the petitioner is entitled to allowances granted to teachers, who have been given charge of the post of Principals of Higher Secondary Schools. 4. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as Principal in the 5[th] respondent school, on 12.07.2005. The petitioner was not given the special pay, which was due to her. By G.O (MS) No.11/2006/G.Edn dated 06.01.2006, the pay scale of the post of Principal, which had already come into existence by the introduction of Chapter XXXII of the KER w.e.f. 12.11.2001 was fixed. 5. It is further stated that the petitioner, whose date of superannuation was on 30.10.2005, had retired from service on 31.03.2006. However, the scale of pay due to her in the **3** W.P.(C).No.23659 of 2012 post of Principal, was not given to her. 6. The learned counsel for the petitioner relies on the decision of the Full Bench of this Court reported in **Aided Higher Secondary School Teachers Association** v. **State of Kerala [2005(1) KLT 94]** and a decision of a Division Bench of this Court reported in **Manager, Karimpuzha Higher Secondary School** v. **State of Kerala and Others [2007(1) KHC 1027]** and an unreported judgment in **W.A No.950 of 2010** , to contend that since, the post of Principal was already in existence w.e.f. 12.11.2001, and the petitioner had been put in charge of the post w.e.f. 12.07.2005, the petitioner would be entitled to the scale of pay of Principal, which was fixed by Government Order dated 06.01.2006 w.e.f. the said date and also to all consequential benefits thereof. It is further submitted that the petitioner’s claim to charge allowances from 12.07.2005 to 06.01.2006 is also to be allowed. 7. A statement has been filed on behalf of respondents 1 to 4. It is stated in paragraph 3 as follows: **4** W.P.(C).No.23659 of 2012 With regard to the Paras 1 to 3 of the Writ petition, it is submitted that the petitioner retired from service as Principal-in-charge while working under the 5[th] respondent on 31.03.2006. Petitioner was the senior most H.S.S.T in the H.S.S, Thiruvambady, Alappuzha she got approval to her post of H.S.S.T with effect from 01.08.2000. The petitioner had to retire on superannuation on 31.10.2005 but was relieved from service on 31.03.2006 ie., the close of the academic year. She was appointed as Principal by the Manager on 12.07.2005. But the post of Principal was created in Higher Secondary Section only on 06.01.2006 as per G.O(MS) No.11/2006/G.Edn. dated 06.01.206 ie., when the petitioner was serving the H.S.S.T cadre after the date of superannuation. 8. It is further stated that going by Rule 60(c) of Part-I KSR, the petitioner would not be entitled to the benefits of increments and promotion, which fall due after the actual date of superannuation. It is stated that the petitioner has no claim for appointment as Principal or to the scale of pay, since the post of Principal in aided Higher Secondary Schools was created only on 06.01.2006, that is; after the date of **5** W.P.(C).No.23659 of 2012 petitioner's superannuation. It is further stated that directions had been issued to release the charge allowances due to the petitioner. 9. I have considered the contentions advanced on either side. It is the specific contention of the petitioner that the post of Principal was in existence in all aided schools in the State by virtue of introduction of Chapter XXXII of the KER w.e.f. 12.11.2001. Chapter XXXII of KER specifically provides that the service of every aided Higher Secondary Schools shall consist of all or any of the following categories of posts as the Director may sanction. Category-I is the post of Principal. It is the specific case of the petitioner that the Government Order, dated 06.01.2006, though styled as an order creating posts, of Principal, only provided for a scale of pay for the post of Principal in aided as well as Government Higher Secondary School, since the post was already in existence. The order dated 06.01.2006 cannot therefore be characterised as an order creating the post of Principal in aided Higher Secondary **6** W.P.(C).No.23659 of 2012 Schools. The post of Principal was in existence as on the date of appointment of the petitioner as such. 10. The Full Bench of this Court in **Aided Higher Secondary School Teachers Association** (supra) held that the post of Principal was pivotal to the functioning of Higher Secondary Schools in the State. Considering the provisions of the Rules in Chapter XXXII of KER, fixing qualifications for appointment to the post of Principal, only qualified persons can be appointed to the said posts. It was directed as follows: Therefore, Government is directed to give sanction and approval to the post of Principal expeditiously so that no Higher Secondary School shall work without a regular Principal. That post is made compulsory as per the Rules and classified as category No.I. We also direct the Managers to make appointment of Principal strictly on the basis of the rules framed as per Chapter XXXII and submit the matter for approval to the Government. It is for the Government to fix the scale of pay of Principal. It can be on a special scale of pay or special allowance to that of a Senior Higher Secondary School Teacher in category No.II. These are matters of policy and we are not making any **7** W.P.(C).No.23659 of 2012 direction regarding fixation of scale of pay. If the appointments are made as per the Rules, that should be approved, if not already approved. The services of Headmasters who are continuing without the requisite qualification as prescribed under Chapter XXXII on the date of coming into force of the Rules, should be terminated forthwith and they will go back as Headmasters. Management and Educational Authority are also directed to see that appointments are made strictly as per the Rules after enforcement of the Statutory Rules. 11. It was pursuant to these directions that the order dated 06.01.2006 has been issued, fixing the scale of pay of the Principal. Therefore, the contentions raised in the statement filed to the effect that the post of Principal was created only by the Government Order dated 06.01.2006 and the petitioner would not have any claim for appointment on any early date, cannot be countenanced. 12. In the above view of the matter, the impugned order is set aside and there will be a direction to the respondent to grant the petitioner all the benefits of scale of **8** W.P.(C).No.23659 of 2012 pay of Principal as prescribed on 06.01.2006 w.e.f. from the said date and to revise the petitioner's pay and pension accordingly. The petitioner shall also be entitled to the special pay which was being granted to similarly situated teachers from 12.07.2005 till 06.01.2006. All monetary benefits including arrears thereof shall be calculated and disbursed to the petitioner within three months from the date of receipt of a certified copy of this judgment. The arrears of Family Benefit Scheme with interest shall also be disbursed to the petitioner immediately. The writ petition is ordered accordingly. **Sd/ANU SIVARAMAN** **JUDGE** SB/15/02/2018 // true copy // P.A to Judge