N. Vijayan v. State of Kerala & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 27TH DAY OF JANUARY 2017/7TH MAGHA, 1938 OP(KAT).No. 35 of 2017 (Z) --------------------------AGAINST THE ORDER IN O.A.NO.1611/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 5.9.2016 PETITIONER: ------------- N. VIJAYAN, HEADMASTER, GOVT. L.P.SCHOOL, THENNOOR P.O., THIRUVANANTHAPURAM, PIN-695563 BY ADV. SRI.S.MOHANDAS RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY ADDL. CHIEF SECRETARY, FINANCE DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001 2. SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL(J) DEPARTMENT, THIRUVANANTHAPURAM-695001 3. DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-695014 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL THIS O.P. KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 27-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 35 of 2017 (Z) --------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- EXHIBIT P1 : TRUE COPY OF THE ORDER DATED 5.9.2016 IN O.A.NO.1611/2015 EXHIBIT P2 : TRUE COPY OF THE O.A.NO.1611/2015 WITH ANNEXURE A1 TO A9 EXHIBIT P3 : TRUE COPY OF REPLY STATEMENT FILED BY 1ST RESPONDENT IN O.A.NO.1611/2015 ## RESPONDENTS' EXHIBITS: NIL ---------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR & DAMA SESHADRI NAIDU, JJ.** -----------------------------------O.P.(KAT)No.35 of 2017 ------------------------------------Dated 27[th] January, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This original petition is directed against the order passed by the Kerala Administrative Tribunal in O.A.No.1161 of 2015 dated 5.9.2016. The petitioner was originally appointed as an Upper Primary School Assistant in Panavoor Panchayat School on 7.6.1998. He was selected through Employment Exchange. Of late, Government passed Annexure-A1 order dated 2.1.2010 taking over of the Panchayat Schools in the State. The teaching as well as the non-teaching staff of Panchayat Schools were absorbed into Government service subject to the concurrence of the Public Service Commission (for short `PSC'). Consequent to such absorption Annexure-A2 order dated 20.1.2012 was issued prescribing the norms governing promotion, grade, seniority and transfer of the staff of such schools. This was subsequently approved by the Public Service Commission. Taking note of the fact that some of the teaching and non-teaching staff of the Panchayat schools were originally recruited by the Public Service Commission and not by the Employment Exchange, they were categorized into two O.P.(KAT)No.35/2017 2 groups namely, those recruited through PSC and those directly recruited through Employment Exchange. Thenceforth, the teaching and non-teaching staff recruited through PSC were treated as in Government service. At the same time, those who were recruited directly through Employment Exchange were included in a common pool, and they were being separately treated for the purpose of promotion, grade, seniority, transfer etc. Subsequently, the said Government Order viz., Annexure-A2 was cancelled as per G.O.(Ms) No.132/2014/GEdn dated 17.7.2014. On issuance of the Government Order dated 17.7.2014 cancelling Annexure A2 order, such persons were given a right of option to come over to the Government service subject to the conditions enjoined thereunder or to get retained in the common pool itself. Thereafter, the petitioner submitted Annexure-A9 option. Finding that it is a conditional option and therefore, it could not be treated as an option at all in terms of the said Government Order dated 17.7.2014 or in other words, not an option in conformity with the terms in the said Government Order, it was rejected. That constrained the petitioner to approach the Tribunal by filing O.A.No.1161 of 2015. In the Original Application thus filed the petitioner sought for the following reliefs:- O.P.(KAT)No.35/2017 3 - “i) call for the records leading to Annexures A.6 & A.8 and to quash the same. - ii) direct the respondents to treat all teachers of panchayat schools taken over by the Govt. on 2.1.2010 equally for all service benefits, in compliance to the direction of the Hon'ble High Court in Annexure A.3 dt. 10.12.2012. - iii) to direct the respondents to consider the House Building Advance Application submitted on 12.5.2015 as per Annexure A.7, and to grant the eligible advance as per rules, expeditiously, to the Applicant. - iv) award the cost of this proceedings to the Applicant, to be realised from respondents 1 & 2.” The Tribunal considered the rival contentions in the light of the relevant provisions and ultimately dismissed the Original Application as per order dated 5.9.2016. As already noticed, this Original Petition is filed challenging the said order of the Tribunal. 2. We have heard the learned counsel for the petitioner and also the learned Government Pleader. 3. Virtually, the petitioner's actual grievance was against Annexure-A5 order dated 12.12.2014 by which the House Building O.P.(KAT)No.35/2017 4 Advance Scheme was extended to the erstwhile staff of Panchayat/Municipality Schools taken over by the Government subject to the conditions laid down in G.O.(P)No.505/2009/Fin dated 12.11.2009. Later, the benefits under Annexure-A5 order were limited only to staff recruited through PSC in such panchayat schools and staff entered into Government service from the `common pool' through option, as per Annexure-A6 order dated 11.5.2015. The petitioner submitted an application for House Building Advance. The same was rejected as per Annexure-A8 order dated 27.7.2015. Obviously, the reason for rejection is that he is neither directly recruited to the Panchayat school through PSC nor a person came to Government service from the common pool by exercising the option. The petitioner while challenging Annexures A6 and A8 put up a collateral challenge against the order cancelling Annexure-A2 order dated 20.1.2012. Thus, it is as plain as a pike staff that it is the rejection of his application for House Building Advance, citing aforesaid reason, that actually constrained the petitioner to mount challenge against the order cancelling Annexure-A2 by Government Order dated 17.7.2014. 4. We have already taken note of the fact that all the Panchayat schools in the State were taken over by the Government as O.P.(KAT)No.35/2017 5 per Government Order dated 2.1.2010. Subsequent to the taking over, the then staff working at Panchayat schools were categorized into two groups viz., those recruited through PSC and those directly recruited through Employment Exchange. Only the staff recruited through PSC were treated as in Government service. Others were included in a common pool and they were being separately treated for the purpose of promotion, grade, seniority , transfer etc. True that the petitioner and similarly situated persons approached this Court earlier by filing W.P.(C) Nos.21315 & 1773 of 2011 praying for a direction to treat all the staff of Panchayat schools as Government servants with all service benefits. The prayer of the petitioners therein were virtually considered by this Court in the light of Annexures A1 and A2. In the light of the said Government Orders, it was found by this Court that there is no reason for treating them differently and consequently issued directions to grant them the benefits flowing from the aforesaid Government Orders namely Annexures-A1 and A2 as per Annexure-A3 judgment. As noticed hereinbefore, subsequently, Annexure-A2 order, which formed the very basis for the judgment of this Court in Annexure-A3, was cancelled. Those who continued in common pool were again given the right of option in the light of Government Order dated 17.7.2014. By virtue of the said order in the case of an optee coming over to the O.P.(KAT)No.35/2017 6 Government service could take seniority only with effect from the date of the order by which the Government took over the Panchayat schools viz., from 2.1.2010. In other words, they had to forgo their past service for the purpose of seniority and 2.1.2010 would only be reckoned as the date of commencement of their service, for the purpose of seniority, promotion, grade etc., on such option. In the contextual situation, it is relevant to note that prior to the issuance of Government Order dated 17.7.2014 by virtue of his continuation in the common pool, the petitioner got promoted as Headmaster in 2013. Evidently, he was so promoted based on his service in erstwhile panchayat schools. As noticed hereinbefore, subsequent to AnnexureA5 Government have issued Annexure-A6 confining the benefit of House Building Advance only to persons directly recruited through PSC and persons who have come over to Government service from common pool by exercising option strictly in accordance with conditions enjoined therewithal. Though the petitioner submitted an application for getting House Building Advance it was rejected as per Annexure-A8 finding that the petitioner did not belong to either of the groups mentioned therein. It is not inapropos to refer to another situation occurred in the meanwhile after the issuance of the Government Order dated 17.7.2014. As contemplated under the Government Order dated O.P.(KAT)No.35/2017 7 17.7.2014 the petitioner exercised his option. He submitted option as per Annexure-A9 dated 15.11.2014. However, he put forth a condition for his option and that made the authorities to consider the question whether it could be treated as an option in terms of Government Order dated 17.7.2014. The petitioner opted as hereunder:- “This option is subject to the condition that my seniority and status as Headmaster in (Panchayat School) shall be maintained in future.” (emphasis added) 5. A perusal of Annexure-A9 would thus reveal that while exercising the option, in purported exercise of the option available under Government Order dated 17.7.2014, the petitioner really wanted to become a Government servant and at the same time, wanted to protect his rights as a member of the common pool. We have already noted that those persons who opted to continue in common pool were separately treated for the purpose of seniority, promotion, grade, etc. and only those persons who accepted the condition to forgo their past service in Panchayat schools for the seniority, grade, promotion etc. alone were treated as Government school teachers. In short, the clever manner in which the petitioner submitted his option would undoubtedly reveal that he really wanted to continue in the common pool to enjoy O.P.(KAT)No.35/2017 8 the benefits available to that group and at the same time, he wanted to become a Government servant for the purpose of enjoying the benefits available to such categories of persons who opted to come out of common pool and became Government servants. We got to remember the old saying: “You can't make omelette without breaking the eggs.” The attempt on the part of the petitioner was to retain the benefits including promotion, obtained by remaining in the common pool and at the same time, to achieve the benefits available to those who come out of the common pool after forgoing the benefits available to common pool. Virtually, the petitioner wants to get rid of the quintessence of the Government Order dated 17.7.2014. It is also relevant to note that the Tribunal found that though Annexure-A2 Government Order was cancelled by Government order dated 17.7.2014 the petitioner has not mounted challenge against the said order cancelling Annexure-A2. It is the consideration of all such relevant aspects that ultimately culminated in the impugned order of dismissal of the Original Application. 6. Having gone through the relevant factual situation in the light of the relevant Government Orders referred hereinbefore, we have no hesitation to hold that a person who continues in the common pool could aspire only for getting the benefits available to common pool O.P.(KAT)No.35/2017 9 during such continuance, and such persons cannot aspire for any benefits available to persons who had come out of the said pool by exercising the option to become Government teachers by forgoing their service in the Panchayat schools for the purpose of seniority, grade, promotion etc. As noticed hereinbefore, while exercising the option to continue in the pool and getting the benefit of Panchayat schools the petitioner became a Headmaster. The option in Annexure-A9 would reveal that the petitioner wanted to retain the promotion and the status which he obtained solely based on his continuance in the common pool. The benefits extended under the Government Order dated 17.7.2014 are concessions and therefore, they would not be available as a matter of right without accepting the conditions enjoined thereunder. If the petitioner's claim is allowed he will become a `one man category' between `common pool optees' and `persons opted out of common pool in terms of Government Order dated 17.7.2014.' Certainly, Annexure-A9 option exercised by the petitioner cannot be said to be the option contemplated under the order dated 17.7.2014. The attempt on the part of the petitioner to remain in the common pool and to grab the benefits available to persons opted out to obtain the benefits available on being treated as Government servants, cannot be accepted and that exactly done by the Tribunal by rejecting the Original O.P.(KAT)No.35/2017 10 Application carrying the aforementioned prayers. The power available to this Court in matters like this, is the power to judicial review by invoking the power under Articles 226/227 of the Constitution of India going by the decision of the Hon'ble Apex Court in **L.Chandra Kumar** v. **Union of India & others** reported in **AIR 1997 SC 1125** . On a careful consideration of the entire aspects as aforesaid, we do not find any reason to hold that the impugned order is infected with any illegality or perversity warranting interference by this Court in exercise of the powers under Articles 226/227 of the Constitution of India. In the said circumstances, this original petition is devoid of merits and it is liable to be dismissed. Accordingly, it is dismissed, however, without costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **DAMA SESHADRI NAIDU Judge** TKS