N.K. Viswanathan Nair v. State of Kerala and P. Satheesh Kumar v. State of Kerala (WP(C).Nos. 3931/2014 and 8729/2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** ## **WP(C).No.3931 OF 2014(N)** ## **PETITIONER:** **N.K.VISWANATHAN NAIR MANAGER, PALORE HIGHER SECONDARY SCHOOL, ULLIYERI P.O. CALICUT DISTRICT. BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2 THE DISTRICT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT. 3 THE DEPUTY DIRECTOR OF EDUCATION KOZHIKODE. 4 P.SATHEESH KUMAR, DRAWING TEACHER PALORA HIGHER SECONDARY SCHOOL,ULLIYERI P.O., CALICUT DISTRICT.** **BY ADV. SRI.R.K.MURALEEDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.02.2021, ALONG WITH WP(C).8729/2014(M), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 3931/14 & 8729/14 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** ## **WP(C).No.8729 OF 2014** ## **PETITIONER:** **P.SATHEESHKUMAR, DRAWING TEACHER, PALORA HIGHER SECONDARY SCHOOL, ULLIYERI, KOZHIKODE DISTRICT BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA, REPRESENTED BY SECRETARY TO**| |---|---| ||**GOVERNMENT, GENERAL EDUCATION DEPARTMENT,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTION**| ||**THIRUVANANTHAPURAM 695 001.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**KOZHIKODE 673 001.**| |**4**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**THAMARASSERY, KOZHIKODE DISTRICT**| |**5**|**THE MANAGER, PALORA HIGHER SECONDARY SCHOOL,**| ||**ULLIYERI, KOZHIKODE DISTRICT, 673 323**| **BY ADVS. DR.GEORGE ABRAHAM SRI.K.P.SUDHEER SR.G.P P.M. MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.02.2021, ALONG WITH WP(C).3931/2014(N), THE COURT ON THE SAME** WPC 3931/14 & 8729/14 3 **DAY DELIVERED THE FOLLOWING:** WPC 3931/14 & 8729/14 4 ## **JUDGMENT** Among these two Writ Petitions, W.P. (C)No.3931/2014 has been filed by the erstwhile Manager of 'Palora Higher Secondary School', Calicut; while W.P.(C)No.8729/2014 has been filed by Sri.P.Satheesh Kumar, who was a Drawing Teacher appointed by the Manager in the said School. It is conceded that subsequent to the filing of W.P. (C)No.3931/2014, the petitioner therein has seized to be the Manager, but that he was functioning as such at the time when it was filed. 2. Both these Writ Petitions have been filed by the respective petitioners challenging the order of the Government, bearing number G.O.(Rt)18/14/G.Edn., dated 01.01.2014, (hereinafter referred to as 'the impugned Government Order' for short), a copy of which has been placed on record as Ext.P8 WPC 3931/14 & 8729/14 5 in W.P.(C)No.3931/2014 and as Ext.P15 in W.P. (C)No.8729/2014. 3. As per the impugned Government Order, the Manger of the School has been found liable to pay certain amounts, alleged to be the excess salary drawn by Sri.P.Satheesh Kumar for the period he was directed to be included as a fresh entrant in the 'Teachers Package' and approved only with effect from 01.06.2011. The Manager contends that the impugned Government Order is illegal, since he was only acting under the orders of this Court; while Sri.P.Satheesh Kumar contends that he ought to have been considered for continuity from the initial date of appointment on 'clubbing arrangement' but that this has never been considered by the Government while issuing the impugned order. 4. To get a hang of the controversy, I must certainly glance through the facts WPC 3931/14 & 8729/14 6 involved compendiously. 5. Sri.P.Satheesh Kumar was appointed by the Manager on 05.06.2000, but the post of Drawing Teacher was abolished in the academic year 2000-2001, due to insufficiency of periods. Even though Appeals and Revisions were filed against this order, they were all rejected, holding that number of periods in the School were less than 25 at the relevant time. This persuaded Sri.P.Satheesh Kumar to file O.P.No.7228/2003 before this Court, asserting that the amendment to Rule 6(4) of Chapter XXIII of the Kerala Education Rules (KER for short) would not apply to him, since he had been appointed prior to that date. This Original Petition was allowed, directing the competent Authority to reconsider the matter and that it was confirmed by this Court in W.A.No.1575/2003. 6. Sri.P.Satheesh Kumar submits that, WPC 3931/14 & 8729/14 7 however, the Assistant Educational Officer (AEO) again rejected his plea, leading to the same being rejected by other Officers in hierarchy, finally culminating in Ext.P11 order of the Government, which has been produced as Ext.P11 in W.P.(C)No.8729/2014; and that he, therefore, preferred W.P. (C)No.2353/2008, challenging this order which was allowed through the judgment reported as **Satheesh Kumar v. State of Kerala [2009(3)KLT** **439]** and that he was thus granted approval with effect from 31.05.2000. He submits that, subsequently, W.A.No.2679/2009 was filed by the State against this judgment, which finally ended in a judgment, reversing the findings of the learned Judge, reported as **State of Kerala** **v. Satheesh Kumar [2011(2) KLT 219]** . He says that it was consequent to the directions in the judgment of the learned Division Bench that the impugned Government Order has now WPC 3931/14 & 8729/14 8 been issued. 7. As far as the Manager is concerned, he also challenges this order because, through it, he has been made liable to pay the salary drawn by Sri.P.Satheesh Kumar during the period when he was allowed to function, namely when the Writ Petition was pending before this Court and he asserts that the directions therein are illegal and unlawful. 8. I have heard Dr.George Abraham, learned counsel for the petitioner in W.P. (C)No.3931/2014; Sri.R.K.Muraleedharan, learned counsel for the petitioner in W.P. (C)No.8729/2014 and Sri.P.M.Manoj, learned Senior Government Pleader, appearing on behalf of the official respondents in both these cases. 9. From the narrative of the facts recorded above, it is clear that the controversy involved in these cases is in a WPC 3931/14 & 8729/14 9 very narrow compass. 10. Even though Sri.P.Satheesh Kumar was originally appointed on 05.06.2000, he was thrown out of service on account of the fact that the number of students in the school did not justify 25 periods, which alone would have permitted continuance of the post, thus leading to the aforementioned litigation before this Court. Thereafter, through the judgment in **Satheesh Kumar** (supra), a learned Judge of this Court allowed the Writ Petition filed by Sri.P.Satheesh Kumar and ordered that he be approved in service. It was consequent to this that, admittedly, he was approved with effect from 31.05.2000. 11. However, subsequently through **State of Kerala v. Satheesh Kumar** (supra), a learned Division Bench reversed **Satheesh Kumar** (supra) but made it clear that the teacher will be entitled to all other benefits, as may be WPC 3931/14 & 8729/14 10 available to him in law. 12. This persuaded the Government to issue the impugned order, wherein, they found fault with the Manager for having paid salary to Sri.P.Satheesh Kumar for the period in question; while he was approved in the 'Teachers Package' only with effect from 01.06.2011. 13. Dr.George Abraham – learned counsel appearing for the Manager, submitted that the findings against his client in the impugned Government Order are untenable since, obviously he was acting as per the directions of this Court, especially since **Satheesh Kumar** (supra) had been allowed in favour of Sri.P.Satheesh Kumar and he was approved with effect from 31.05.2000. He, therefore, prayed that the findings against his client in the impugned Government Order be vacated. 14. Sri.R.K.Muralidharan – learned counsel WPC 3931/14 & 8729/14 11 for Sri.P.Satheesh Kumar - the petitioner in W.P.(C)No.8729/2014 - submitted that even if all the directions of the learned Division Bench in **State of Kerala v. Satheesh Kumar** (supra) are implemented, his client ought to have been considered for continuity by the Government on 'clubbing arrangement', with effect from the date on which he was thrown out of service in the academic year 2000-2001. He submitted that this cannot be denied to his client even as per the directions in **State of** **Kerala v. Satheesh Kumar** (supra) because these issues had been left open to be considered by the competent Authorities, subject to the entitlement of his client. He submitted that the question whether vacancies were available for enforcing the 'clubbing arrangement' is known only to the Educational Authorities and therefore, that not even the Manager could have made any order with respect to the same. WPC 3931/14 & 8729/14 12 He, therefore, submitted that the impugned Government Order is in error, to the extent to which his client has been included in the 'Teachers Package' only with effect from 01.06.2011; and that he ought to have been granted continuity right from the date of his initial appointment, employing the 'clubbing arrangement' validly. 15. When I consider the afore submissions, I find favour with both counsel to the extent argued by them as afore. 16. Dr.George Abraham is right in saying that the Manager had only acted as per the directions of this Court in **Satheesh Kumar** (supra), when Sri.P.Satheesh Kumar was permitted to draw salary, which fact becomes indisputable by the subsequent approval granted by the Educational Authorities themselves to him, with effect from 31.05.2000. This position was altered only WPC 3931/14 & 8729/14 13 when the **State of Kerala v. Satheesh Kumar** (supra) was delivered by a learned Division Bench of this Court and I fail to understand how Government could have found fault with the Manager in having facilitated payment to Sri.P.Satheesh Kumar during the said period. I, therefore, cannot find the impugned Government Order to be worthy of this Court, to the extent to which it mulcts the then Manager with liability under Rule 7 of Chapter III of the KER. 17. Coming to the case of Sri.P.Satheesh Kumar, as argued by his learned counsel – Sri.R.K.Muraleedharan, there is no doubt that the findings and holdings in **State of Kerala v. Satheesh Kumar** (supra) apply to him in full force. However, a close reading of the said judgment would make it clear that none of the legitimate rights of Sri.Satheesh Kumar have been denied, and he has been allowed to seek WPC 3931/14 & 8729/14 14 any benefit, eligible to him, as per the provisions of law. Sri.Muraleedharan submits that instead of including his client in the 'Teachers Package' with effect from 01.06.2011, the Educational Authorities ought to have ascertained whether he was entitled to be continued in service with effect from the date of initial appointment by enforcing 'clubbing arrangement', which obviously, could have been done by the competent Educational Authorities, who alone would be aware about the vacancy position. I find force in these submissions and am, therefore, of the view that the impugned Government Order, namely Ext.P15 in W.P.(C)No.8729/2014, requires to be reconsidered to such extent. I, therefore, order these Writ Petitions in the following manner: a) W.P.(C)No.3931/2014 is allowed and the Government Order produced as Ext.P8 therein is WPC 3931/14 & 8729/14 15 quashed to the extent to which it mulcts liability on the petitioner for the salary drawn by the Drawing Teacher Sri.P.Satheesh Kumar, under the provisions of Rule 7 Chapter III of the KER. b) W.P.(C)No.8729/2014 is allowed to the extent of directing the competent Authority of the Government to reconsider Ext.P15 order and to verify whether petitioner can be allowed continuity in service, under the benefit of a 'clubbing arrangement' for the academic year 2011-2012. c) This shall be done by the competent Secretary of the Government, after affording an opportunity of being heard to the petitioner as also the present Manager of the School – either physically or through videoconferencing – thus culminating in an apposite order on this issue as expeditiously as is possible, but not later than three WPC 3931/14 & 8729/14 16 months from the date of receipt of a copy of this judgment. d) Needless to say, depending upon the decision to be taken by the Government in terms of the directions afore, the salary and other benefits of the petitioner, with effect from 01.10.2012, shall be disbursed – if he is found eligible - without any further delay thereafter. ## **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 3931/14 & 8729/14 17 ## APPENDIX OF WP(C) 3931/2014 ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 EXHIBIT P1: TRUE COPY OF JUDGMENT IN WPC 23531/2008. EXHIBIT P2 EXHIBIT P2: TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.2679/2009. EXHIBIT P3 EXHIBIT P3: TRUE COPY OF GOVERNMENT LETTER DATED 15.3.2012. EXHIBIT P4 EXHIBIT P4: TRUE COPY OF JUDGMENT IN C.R.P.705/2012. EXHIBIT P5 EXHIBIT P5: TRUE COPY OF REVIEW PETITION FILED BY THE PETTIONER UNDER RULE 93. EXHIBIT P6 EXHIBIT P6: TRUE COPY OF ARGUMENT NOTE FILED BY THE PETITIONER EXHIBIT P7 EXHIBIT P7: TRUE COPY OF ADDITIONAL ARGUMENT NOTE FILED BY THE PETITIONER. EXHIBIT P8 EXHIBIT P8: TRUE COPY OF GOVERNMENT ORDER G.O.(RT)18/14/G.EDN DATED 1.1.2014. EXHIBIT P9 EXHIBIT P9: TRUE COPY OF THE JUDGMENT IN WPC 15657/2004. WPC 3931/14 & 8729/14 18 ## APPENDIX OF WP(C) 8729/2014 ## PETITIONER'S/S EXHIBITS: |EXHIBIT P1|EXHIBIT P1 COPY OF THE RELEVANT PAGES OF| |---|---| ||STAFF FIXATION OF THE SCHOOL DATED| ||20/8/2000| |EXHIBIT P2|EXHIBIT P2 COPY OF THE ORDER DATED| ||24/5/2001 ISSUED BY THE 2ND RESPONDENT| |EXHIBIT P3|EXHIBIT P3 COPY OF THE| ||GO(RT)NO.4085/02/G.EDN DATED 21/11/2002| |EXHIBIT P4|EXHIBIT P4 COPY OF THE GO(MS)| ||NO.525/95/G.EDN DATED 28/10/1995| |EXHIBIT P5|EXHIBIT P5 COPY OF THE JUDGMENT IN OP NO.| ||7228/2003 DATED 29/5/2003| |EXHIBIT P6|EXHIBIT P6 COPY OF THE RELEVANT PAGES OF| ||JUDGMENT DATED 20/7/2004 IN WA NO.| ||1575/2003| |EXHIBIT P7|EXHIBIT P7 COPY OF THE ORDER DARED| ||31/3/2004 OF TEH DEO, VADAKARA| |EXHIBIT P8|EXHIBIT P8 COPY OF THE ORDER PASSED BY THE| ||3RD RESPONDENT| |EXHIBIT P9|EXHIBIT P9 COPY OF THE ORDER DARTED| ||14/3/2005| |EXHIBIT P10|EXHIBIT P10 COPY OF THE COMMUNICATION OF| ||THE IST RESPONDENT TO THE PETITIONER DATED| ||21/11/2007| |EXHIBIT P11|EXHIBIT P11 COPY OF THE GO(P)| ||NO.253/04/G.EDN DATED 6/8/2004| |EXHIBIT P12|EXHIBIT P12 COPY OF THE RELEVANT PAGES OF| ||THE GO(P) NO. 199/2011/G.EDN DATED| ||1/10/2011| |EXHIBIT P13|EXHIBIT P13 COPY OF THE CERTIFICATE ISSUED| ||BY THE HEADMASTER OF PALORA HIGHER| ||SECONDARY SCHOOL DATED 10/2/2014| WPC 3931/14 & 8729/14 19 EXHIBIT P14 EXHIBIT P14 COPY OF THE RELEVANT PAGES OF GO(P) NO. 116/2012/G.EDN DATED 12/4/2012 EXHIBIT P15 EXHIBIT P15 COPY OF THE GO(RT) NO. 18/2014/G.EDN DATED 1/1/2014 EXHIBIT P16 TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER DATED 13.05.2014. RESPONDENT'S/S EXHIBITS: EXHIBIT R1(a) A copy of the judgment in W.A. No.2679/2009. EXHIBIT R6(a) TRUE COPY OF LETTER DATED 24.07.2018 ISSUED BY THE PETITIONER HEREIN TO THE FORMER MANAGER OF THE SCHOOL IN QUESTION.