M.J. Lissy v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 16TH DAY OF SEPTEMBER 2014/25TH BHADRA, 1936 ## WP(C).No.15208 of 2008 (I) ---------------------------- PETITIONER : ----------- M.J.LISSY, SEWING TEACHER, ST.THOMAS HSS, ERUVELLIPRA THIRUMOOLAPURAM, THIRUVALLA. BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.ARUL KUMAR.P SRI.BIJIMON C.CHERIAN SRI.LOWEL CHERIAN ## RESPONDENTS : -------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF THIRUVALLA, MARYGIRI, THIRUVALLA. 4. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, CATHOLIC DIOCESE OF MUVATTUPUZHA, M.S.M., I.T.C., PIRAVOM P.O., ERNAKULAM DISTRICT. R4 BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM (SR.) R4 BY ADV. SRI.TONY GEORGE KANNANTHANAM R1 & 2 BY GOVERNMENT PLEADER SMT.M.MADHUBEN R3 BY ADV.SRI.V.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2014, THE COURT ON 16-09-2014 DELIVERED THE FOLLOWING: ## WP(C).No.15208 of 2008 (I) ## APPENDIX ## PETITIONER’S EXHIBITS:- - EXT.P1 : COPY OF MEMO OF APPOINTMENT. EXT.P2 : COPY OF THE TRANSFER ORDER No.281/94-95. EXT.P3 : COPY OF THE ATTENDANCE REGISTER OF ST.THOMAS HSS, ERUVELLIPRA. - EXT.P4 : COPY OF THE ORDER OF DPI No.K.Dis.58644/94/E1 APPROVIING THE TRANSFER OF MANAGEMENT OF SCHOOL. - EXT.P5 : COPY OF THE STAFF FIXATION ORDER OF DEO, CHAVAKKAD. - EXT.P6 : COPY OF THE PETITION SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT. - EXT.P7 : COPY OF THE PETITION SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT. - EXT.P8 : COPY OF THE PETITION SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT. - EXT.P9 : COPY OF THE PETITION SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT. - EXT.P10 : COPY OF THE PETITION SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT. - EXT.P11 : COPY OF THE JUDGMENT IN W.P.(C)No.7622/07. EXT.P12 : COPY OF THE WRITTEN SUBMISSION SUBMITTED BY 3RD RESPONDENT BEFORE 1ST RESPONDENT. - EXT.P13 : COPY OF THE ORDER G.O.(Rt.) No.1678/2008/G.Edn BY 1[st] RESPONDENT. RESPONDENTS' EXHIBITS : NIL. True copy P.A to Judge ## **ANIL K.NARENDRAN, J. --------------------------------------W.P.(C).No.15208 of 2008** ## **---------------------------------------Dated this the 16[th] day of September, 2014** ## **JUDGMENT** The petitioner entered services as a Sewing Teacher in the St.George High School, Kottangal, Chungappara, on 12/6/1990, vide Ext.P1 memo of appointment issued by the Corporate Manager, Corporate Educational Agency, Diocese of Thiruvalla, the 3[rd] respondent herein. The said appointment was approved and she worked there till 15/7/1994. With effect from 15/7/1994 FN, she was posted at St.Thomas High School, Eruvellipra, another school under the very same management, vide Ext.P2 order of the 3[rd] respondent, and allowed to work against a new post proposed to be sanctioned during 1994-95. This transfer was necessitated in order to accommodate a senior Sewing Teacher, who was relieved from St.Joseph High School, Piravom, under the very same management, due to division fall in that school. 2. According to the petitioner, as evident from Ext.P3 attendance sheet of Eruvellipra School, she had worked and W.P.(C).No.15208 of 2008 2 permitted to mark attendance in the said school from 15/7/1994 till 28/8/1995. But the said transfer was not approved for want of sanction for the anticipated post in Eruvellipra School. Later, on 29/8/1995, she was transferred to MLKAM High School, Elanad, a new school purchased by the 3[rd] respondent in February/March, 1994, and posted against the vacancy of Sewing Teacher available from 15/7/1994, which remained unfilled till 29/8/1995. Ext.P4 is the order passed by the Director of Public Instruction, the 2[nd] respondent herein, dated 12/12/1994, granting approval for the change of management of Elanad School, involving change of ownership, in favour of the 3[rd] respondent. Ext.P5 is the staff fixation order of Elanad School for the academic year 1994-95, dated 30/10/1994, which would show that an additional post of Sewing Teacher was sanctioned in Elanad School for the academic year 1994-95. However, the petitioner’s transfer to Elanad School was approved only from 29/8/1995. 3. According to the petitioner, if the 3[rd] respondent had W.P.(C).No.15208 of 2008 3 transferred her to Elanad School on 15/7/1994, instead of transferring her to Eruvellipra School, her transfer with effect from 15/7/1994 would have been approved. Since the petitioner had actually worked in Eruvellipra School from 15/7/1994 till 28/8/1995 and since nobody else had worked in the additional post of Sewing Teacher sanctioned in the Elanad School till 28/8/1995, the petitioner is entitled for regularisation of her service from 15/7/1994 till 28/8/1995 and also for payment of salary for the said period. On the closing day for the academic year 1995-96, i.e., on 29/3/1996, the petitioner was relieved for want of 8 months' service and she was allowed to re-join duty only on 3/6/1996, i.e., on the reopening day. 4. The petitioner came to know about the availability of vacancy of Sewing Teacher in Elanad School from 15/7/1994, only in September, 1995, on joining duty there. The petitioner submitted Ext.P6 representation before the 2[nd] respondent, in order to regularise her service for the period from 15/7/1994 till 28/8/1995, which was followed by Exts.P7 and P8 W.P.(C).No.15208 of 2008 4 representations. Later, the petitioner filed Ext.P10 representation before the Government, the 1[st] respondent herein, under Rule 92 of Chapter XIVA of the Kerala Education Rules (hereinafter referred to as ‘the KER’) seeking regularisation of her broken period of service so as to enable her to get 16 years grade with all consequential benefits. By Ext.P11 judgment, this Court disposed of W.P.(C)No.7622 of 2007 filed by the petitioner, directing the 1[st] respondent to consider and take a decision on Ext.P10 representation in accordance with law, with an opportunity of hearing to the petitioner and any other affected party, within a period of 2 months from the date of receipt of a copy of the judgment. 5. Pursuant to the direction contained in Ext.P11 judgment, the 1[st] respondent conducted a personal hearing on 28/9/2007. The 3[rd] respondent submitted Ext.P12 written submission stating that, Elanad School is under the Corporate Educational Agency of the Catholic Diocese of Muvattupuzha from 1/9/2003 due to bifurcation and the records relating to Elanad School have been transferred to the Corporate W.P.(C).No.15208 of 2008 5 Manager of the Corporate Educational Agency of the Catholic Diocese of Muvattupuzha, the 4[th] respondent herein. Since records relating to Elanad School are with the new management, the vacancy position has to be verified with the 4[th] respondent. 6. Thereafter, the 1[st] respondent issued Ext.P13 order regularising the service of the petitioner for the period from 15/7/1994 to 28/8/1994 as Leave Without Allowance, under Rule 88, Part-I of the Kerala Service Rules (hereinafter referred to as ‘the KSR’), on condition that the said period will not be counted for pension, increment, higher grade or earned leave. The second spell of break, i.e., the vacation period from 30/3/1996 to 2/6/1996, was regularised since the appointment of the petitioner in Elanad School was in a permanent vacancy. Hence Rule 49 to Chapter XIVA of KER does not apply and the petitioner is eligible for retention in service during vacation as she is continuing regularly from 2/6/1996 onwards. It is aggrieved by Ext.P13 order to the extent of denying regularisation of the period of service of the petitioner for the W.P.(C).No.15208 of 2008 6 period from 15/7/1994 to 28/8/1995 as ‘duty’ with all consequential benefits, the petitioner is before this Court in this Writ Petition. 7. A counter affidavit has been filed on behalf of the 1[st] respondent contending that, the transfer of the petitioner to Eruvellipra School was in an anticipated post for the academic year 1995-96. But the said post was not sanctioned in the staff fixation order for the academic year 1995-96, for the reason that the effective strength of girl pupils is less than 200. So the petitioner was working in the non-sanctioned post from 15/7/1994 to 28/8/1995 and her transfer was not approved. Later, she was transferred to Elanad School with effect from 28/8/1995 in a newly sanctioned post in the staff fixation order for the academic year 1995-96. Pursuant to the direction contained in Ext.P11 judgment of this Court, the 1[st] respondent considered Ext.P10 representation submitted by the petitioner and disposed of the same by Ext.P13 order. There is no statutory rule or order for the regularisation of the break in service occurred to the petitioner. Therefore, the Government W.P.(C).No.15208 of 2008 7 regularised the period of service of the petitioner from 15/7/1994 to 28/8/1995 by granting eligible leave, including Leave Without Allowance, under Rule 88 of Part-I of the KSR, on condition that the period of Leave Without Allowance will not count for pension, increment, higher grade or earned leave. The second spell of break was the vacation period from 30/3/1996 to 2/6/1996. Since the appointment of the petitioner in Elanad School was in a permanent vacancy, Rule 49 of Chapter XIVA of the KER will not apply and she is eligible for retention in service during vacation. Subsequent to Ext.P13 Government order, the petitioner submitted an application for Leave Without Allowance for 410 days from 15/7/1994 to 28/8/1995 and the Government has issued orders regularising the break in service, vide G.O.(Rt.)No.4791/08/G.Edn. dated 30/10/2008. Therefore, according to the 1[st] respondent, Ext.P13 order is perfectly legal and no interference of this Court is called for. 8. The 3[rd] respondent has filed a counter affidavit contending that, the management of Elanad School has been W.P.(C).No.15208 of 2008 8 transferred to 4[th] respondent, with effect from 1/9/2003, and the records relating to the case are no longer in the custody of the 3[rd] respondent. According to the 3[rd] respondent, the petitioner was transferred to Eruvellipra School in order to accommodate a senior Sewing Teacher who was relieved from Piravom School. A new post of Sewing Teacher was created in Eruvellipra School for the academic year 1994-95 anticipating approval by the Educational Authorities. But the post was not sanctioned and the same situation continued for the academic year 1995-96 also. In such circumstances, the petitioner was finally transferred to Elanad School, with effect from 29/8/1995. According to the 3[rd] respondent, the retention of the petitioner at Eruvellipra School was at her instance, as she complained of domestic inconveniences as she had to take care of her small children. The petitioner was permitted to mark attendance, since the management bonafide believed that the additional post of Sewing Teacher would be sanctioned by the Educational Authorities for the academic year 1994-95. According to the 3[rd] respondent, if the petitioner gets any relief W.P.(C).No.15208 of 2008 9 from the Government he has no objection to the same. 9. Heard the arguments of the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 2, the learned counsel for the 3[rd] respondent and also the learned counsel for the 4[th] respondent. 10. The learned counsel for the petitioner contended that Ext.P13 order to the extent the petitioner is denied with regularisation of her service for the period from 15/7/1994 to 28/8/1995 as ‘duty’ with all consequential monetary benefits is legally unsustainable. Per contra, the learned Government Pleader appearing for respondents 1 and 2 contended that Ext.P13 order passed by the Government is perfectly legal and no interference of this Court is called for. I have considered the rival submissions made at the Bar. 11. The only issue which arises for consideration in this Writ Petition is whether the petitioner is entitled for regularisation of her service from 15/7/1994 to 28/8/1995 as ‘duty’ with all consequential monetary benefits. 12. While the petitioner was continuing as Sewing W.P.(C).No.15208 of 2008 10 Teacher in Chungappara School she was transferred and posted to Eruvellipra School with effect from 15/7/1994, against a new post proposed to be sanctioned during 1994-95. This has necessitated for accommodating a senior Sewing Teacher, who was relieved from Piravom School under the very same management due to division fall. Though, as evident from Ext.P3 the petitioner marked attendance in Eruvellipra School for the period from 15/7/1994 to 31/3/1995, the fact remains that, no post of Sewing Teacher was sanctioned in Eruvellipra School during the academic year 1994-95, which situation continued for the academic year 1995-96 as well. Going by the counter affidavit filed by the 1[st] respondent, the nonsanctioning of the post of Sewing Teacher in Eruvellipra School was for the reason that, the effective strength of girl pupils was less than 200. Going by Rule 6B to Chapter XXIII of the KER a post of Sewing Teacher shall be sanctioned only subject to the condition that there are not less than 200 girl pupils in the complete Upper Primary Section. 13. In Ext.P7 representation submitted before the 2[nd] W.P.(C).No.15208 of 2008 11 respondent, the petitioner has stated that, as there was a division fall in Piravom School due to shortage of girl pupils, she was transferred to Eruvellipra School, in order to protect a senior Sewing Teacher of Piravom School. She has stated further that, though she was posted against an anticipated post of Sewing Teacher in Eruvellipra School, the said post was not sanctioned as there were only less than 200 girl students. According to her, she marked attendance during the period from 15/7/1994 to 31/3/1995 in a paper (produced as Ext.P3). From June, 1995 onwards she marked attendance in the attendance register, till she was posted to Elanad School on 29/8/1995. 14. Therefore, while continuing at Eruvellipra School, the petitioner was well aware of the fact that the anticipated post of Sewing Teacher is not likely to be sanctioned as there were only less than 200 girl pupils. In the absence of a sanctioned post in Eruvellipra School during the academic years 1994-95 and 1995-96, the petitioner cannot contend that she had discharged the duties of Sewing Teacher in that school W.P.(C).No.15208 of 2008 12 during the period from 15/7/1994 to 28/8/1995 and that she is entitled for regularisation of her service during the aforesaid period as ‘duty’ with all consequential monetary benefits. 15. Ext.P5 staff fixation order dated 30/10/1994 of Elanad School, for the academic year 1994-95, would show that an additional post of Sewing Teacher was sanctioned in the said school for the academic year 1994-95. Later, by Ext.P4 order dated 12/12/1994, the 2[nd] respondent granted approval for change of management of Elanad School, involving change of ownership, in favour of the 3[rd] respondent. Exts.P4 and P5 orders came much after the petitioner was transferred to Eruvellipra School, in order to accommodate a senior Sewing Teacher, who was relieved from Piravom School due to division fall. Therefore, the petitioner cannot contend that her transfer to Eruvellipra School when the actual vacancy was in Elanad School was only a mistake committed by the 3[rd] respondent. 16. It was only on 29/8/1995, the petitioner was transferred to Elanad School and accommodated in the additional post of Sewing Teacher originally sanctioned in W.P.(C).No.15208 of 2008 13 Ext.P4 staff fixation order. Merely for the reason that, the additional post of Sewing Teacher sanctioned in Elanad School vide Ext.P5 staff fixation order, and continued in the staff fixation order for the subsequent academic year, remained unfilled till 29/8/1995, the date on which the petitioner was accommodated in that sanctioned post, she will not be entitled for regularisation of her service for the period from 15/7/1994 to 28/8/1995 as ‘duty’, as she was not working as Sewing Teacher during the said period against any sanctioned post. As rightly pointed out in Ext.P13 Government order, no one can discharge the duties of a post unless there is a sanctioned post and shifting of lien is also not possible. 17. As there is no statutory rules/orders for regularisation of the break in service occurred to the petitioner, the Government, as a special case, regularised the period from 15/7/1994 to 28/8/1995 by granting her eligible leave, including Leave Without Allowance, under Rule 88 of Part-I of the KSR, on condition that the period of Leave Without Allowance will not count for pension, increment, W.P.(C).No.15208 of 2008 14 higher grade or earned leave. The reasoning made in Ext.P13 order is neither perverse nor patently illegal. Ext.P13 order passed by the 1[st] respondent is perfectly legal and the petitioner has also failed to make out a case warranting interference of this Court under Article 226 of the Constitution of India. 18. Lastly, the learned counsel for the petitioner contended that since the petitioner sustained monetary loss due to denial of posting against the additional post sanctioned in Elanad School, she is legally entitled to get the salary for the period from 15.7.1994 to 28.8.1995 by proceeding against the 3[rd] respondent-Manager under Rule 7(4) of Chapter III KER. The learned counsel also relied on the judgments of this Court in **Babykutty v. State of Kerala [2000 (2) KLT 779]** and **Beepathukutty v. State of Kerala [2013 (2) KLT SN 101 (C.No.129)].** Without going into the merits of the above contention raised by the learned counsel for the petitioner, it is made clear that, the dismissal of this Writ Petition will not stand in the way of the petitioner taking recourse to Rule 7(4) W.P.(C).No.15208 of 2008 15 of Chapter III of the KER by making an appropriate application before the competent authority and the said authority shall consider and pass appropriate orders on such application in accordance with law, with notice to the petitioner and the 3[rd] respondent. In the result, the Writ Petition fails and the same is dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** skj