High Court of KeralaSingle Judge2015-11-30Writ petition dismissed

P. Bijo Davies v State of Kerala and Others

Case / Petition Number:W.P.(C).No.1835 of 2012-D

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-11-30
Court Decision / Holding: The writ petition is dismissed. No costs.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

P. Bijo Davies

Respondents

The State of Kerala, represented by its Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-695001.
The Director of Public Instructions, Jagathy, Athiruvananthapurm-695014.
The Deputy Director of Education, Thrissur at Ayyanthole-680003.
The District Educational Officer, Thrissur-680001.
The Assistant Education Officer Wadakkancherry, Thrissur District-680582.
The Assistant Educational Officer Thrissur East-680005.
The Corporate Manager, Corporate Educational Agency, Arch-Dioese of Thrissur, Thrissur-680001.
The District Educational Officer, Chavakkad, Thrissur District-680506.

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.A. Muhammed

Counsels for Respondents

• Sri T.R. Rajesh
• Sri Tony George Kannathanam

Case Synopsis & Summary

The petitioner, P. Bijo Davies, was appointed as Upper Primary School Assistant across four spells in different aided schools managed by the 7th respondent, with two spells initially sanctioned on regular scales of pay and two later withdrawn by Exhibit P6. He challenges the withdrawal of sanction and seeks regularization, or at least regular pay, for the last spell under various statutory provisions and government orders, arguing that prolonged temporary appointments should be regularized and that GO (P) No.56/11/G.Edn. supports regular pay in certain circumstances. The respondents counter that Rule 7A(3) of Chapter XIV-A Kerala Education Rules (KER) prohibits filling vacancies for less than a full academic year on regular scale, and that the 1st proviso to Rule 5A requires a minimum continuous service of one academic year as on the date of relief; the records do not show such continuous service in the four spells. They contend GO (P) 56/11 cannot override these statutory rules, and that declaring a regular scale would revive a Rule 51A claim requiring statutory authority and party notice. The petitioner cites State of Punjab v. Rafiq Masih to argue against unwarranted recoveries, while the management relies on State of Kerala v. Sneha Cheriyan (SC) to emphasize vacancy duration rules. The court ultimately dismisses the petition, holding the reliefs untenable, and awards no costs.

Provisions of Law Cited

Kerala Education Rules, 1959, Chapter XIV-A: Rule 7AKerala Education Rules, 1959, Chapter XIV-A: Rule 7A(3)Kerala Education Rules, 1959, Chapter XIV-A: Rule 51AKerala Education Rules, 1959, Chapter XIV-A: Rule 5AKerala Education Rules, 1959, Chapter XIV-A: Rule 49G.O.(P) No.31/2006/GE dated 19-01-2006G.O.(P) No.56/11/G.Edn. dated 26-02-2011

Legal Doctrines & Maxims

One academic year vacancy rule for regular pay (as interpreted from Sneha Cheriyan, 2013 (1) KLT 755 (SC))

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that four spells of appointment as Upper Primary School Assistant in various aided schools produced two spells on regular scales of pay, while the other two were later withdrawn by Exhibit P6. He argues that appointments beyond eight months should be regularized on the regular pay scale and relies on GO (P) 56/11 and the Supreme Court’s decision in State of Punjab v. Rafiq Masih to avoid improper recoveries. He also submits that, for the last spell, regular scale is warranted under the GO, and that Rule 7A(3) and Rule 51A impose constraints that require one academic year's continuous service on relief. While recognizing that a declaration of regular scale could revive Rule 51A claims, he insists that statutory authorities be approached to resolve the matter and that the management’s action is unfounded. When the decision to reverse was taken, the petitioner asserts he was not denied due process.

Contentions of Respondents

The management and Government Pleader argue that Rule 7A(3) of Chapter XIV-A KER prohibits filling vacancies for less than one academic year on a regular scale and that the 1st proviso to Rule 5A requires one academic year of continuous service on the date of relief; the records do not show such service across the four spells. They contend GO (P) 56/11 cannot override the statutory rules and that a declaration of regular scale would revive a Rule 51A claim requiring statutory authority. They point out that the petitioner was heard before Exhibit P6, and that VACancies lasting less than a year are properly filled on daily wages, with the management relying on Sneha Cheriyan (SC), which allows daily wages during shorter vacancies but regular pay only for vacancies exceeding one academic year. They also argue that interdicting recovery per Rafiq Masih is not applicable here, and that the petitioner has not approached statutory authorities for relief.”},

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer)	2015 (1) KLT 429 (SC)	Mentioned Only	Cited to discuss recovery interdiction, but the judgment notes the five instances for recovery interdiction and finds them not relevant to the present case.
State of Kerala v. Sneha Cheriyan	2013 (1) KLT 755 (SC)	Positive	Used to support the rule that regular scale pay is linked to vacancies lasting beyond one academic year; the decision is followed in interpreting the vacancy-duration principle.
W.P.(C).NO.4643/2012-E	Judgment dated 18.02.2015	Mentioned Only	Judgment cited as Exhibit P7 in the course of argument, not relied upon as controlling authority in the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 30TH DAY OF NOVEMBER 2015/9TH AGRAHAYANA, 1937Q ## W.P.(C).No.1835 of 2012 (D) ----------------------------------------- PETITIONER(S):- -------------------------- P.BIJO DAVIES, AGED 37 YEARS, SON OF P.A. DAVIES, HIGH SCHOOL ASSISTANT (MATHS), ST. ANONY'S HIGHER SECONDARY SCHOL, PUTHUKKAD, THRISSUR DISTRICT. BY ADVS.SRI.V.A.MUHAMMED. RESPONDENT(S):- ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, ATHIRUVANANTHAPURM-695014. 3. THE DEPUTYDIRECTOR OF EDUCATION, THRISSUR AT AYYANTHOLE-680003. 4. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR-680001. 5. THE ASSISTANT EDUCATIONA OFFICER WADAKKANCHERRY, THRISSUR DISTRICT-680582.. 6. THE ASSISTANT EDUCATIONAL OFFICER THRISSUR EAST-680005. 7. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCH-DIOCESE OF THRISSUR, THRISSUR-680001. W.P.(C).NO.1835 OF 2012-D - 2 - ## 8. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT-680506. R1 TO R6 & R8 BY GOVERNMENT PLEADER SRI.T.R.RAJESH. R7 BY ADV. SRI.TONY GEORGE KANNANTHANAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## W.P.(C).NO.1835 OF 2012-D ## APPENDIX ## - PETITIONER(S) EXHIBITS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 11-6-2009 AND THE APPROVAL THEREOF DATED 12-1-2010. EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 5-6-2010 AND THE APPROVAL THEREOF DATED 16-11-2010. EXT.P3 TRUE COPY OF THE G.O. (P) NO.31/2006/GE DATED 19-1-2006 OF THE GOVERNMENT. EXT.P4 TRUE COPY OF THE PETITION SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER DATED NIL. EXT.P5 TRUE COPY OF THE ORDER NO. B4-12434/2011 OF THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD DT. 1-12-2011. EXT.P6 TRUE COPY OF THE ORDER NO.F2/86127/11/DPI/K.DIS. DATED 22.5.2012. EXT.P7 TRUE COPY OF JUDGMENT IN W.P.(C).NO.4643/2012-E DATED 18.02.2015. RESPONDENTS' EXHIBITS:---------------------------------------EXT.R7(a) TRUE COPY OF THE APPOINTMENT ORDER DT.25.7.2007 ISSUED BY 7TH RESPONDENT. EXT.R7(b) TRUE COPY OF THE APPOINTMENT ORDER DT.17.6.2008 ISSUED BY 7TH RESPONDENT. EXT.R7(c) TRUE COPY OF ORDER DATED 26.2.11 ISSUED BY THE GOVERNMENT. EXT.R7(d) TRUE COPY OF THE ORDER SHOWING THAT A TEACHERS APPOINTMENTG WAS APPROVED FRPOM 1.6.2010. EXT.R7(e) TRUE COPY OF THE ATTENDANCE REGISTER OF THE SCHOOL. EXT.R7(f) TRUE COPY OF THE ATTENDANCE REGISTER OF THE SCHOOL. EXT.R7(g) TRUE COPY OF THE ATTENDANCE REGISTER OF THE SCHOOL. Vku/- [ true copy ] ## K. Vinod Chandran, J ------------------------------------------- ## W.P.(C).No.1835 of 2012-D ------------------------------------------Dated this the 30[th] day of November, 2015 ## **JUDGMENT** The petitioner initially was aggrieved with the fact that the petitioner's appointment as per Exhibits P1 and P2 were not approved on the regular scales of pay. Subsequently, the petitioner challenged Exhibit P6 order, which withdrew the sanction, accorded to two earlier stints of appointment, on regular scale of pay. 2. All the four spells of appointment of the petitioner as Upper Primary School Assistant [for brevity “UPSA”] were in different aided schools of the 7[th] respondent-management. The appointment were also made to different leave vacancies. The four spells of appointment were 25.07.2007 to 31.03.2008, 17.06.2008 to 31.03.2009, 11.06.2009 to 31.03.2010 [Exhibit P1] and 05.06.2010 to 31.03.2011 [Exhibit P2]. - 2 - WP(C).No.1835 of 2012 3. The earlier two spells indicated herein were granted regular scales of pay; but the same was withdrawn as per Exhibit P6. The petitioner seeks setting aside of Exhibit P6 on the strength of the decision of the Hon'ble Supreme Court in _**State of Punjab v. Rafiq Masih (White Washer)**_ **[2015 (1) KLT 429 (SC)].** With respect to Exhibits P1 and P2, the petitioner's contention is that since the appointments are beyond 8 months, the petitioner should be approved in the regular scale of pay and not on daily wages. In any event, at least for the last spell of appointment, the petitioner is entitled to regular scale of pay as per G.O.(P) No.56/11/G.Edn. Dated 26.02.2011, argues learned counsel. 4. The learned counsel for the respondent-management and the learned Government Pleader, in tandem, submits that the petitioner cannot be granted either of the reliefs. The challenge against Exhibit P6 is resisted on the ground that the petitioner had never approached the Educational authorities when such reversal was made. A plain reading of the order itself would indicate that the petitioner was heard before such an order was passed. As to the sustainability of the claim for regular scale of pay, specific reference WP(C).No.1835 of 2012 - 3 - is made to Rule 7A and 51A of Chapter XIV-A of the Kerala Education Rules, 1959 [for brevity “KER”]. 5. Sub-rule (3) of Rule 7A specifically commands that the vacancies, the duration of which is less than one academic year, shall not be filled up. The 1[st] proviso to Rule 5A also speaks of a preferential claim under the said rule only if the teacher has a minimum continuous service of one academic year as on the date of relief. Obviously, the records produced by the management would not show a duration of service of one academic year on the date of relief of the petitioner during the four spells of appointment now placed before this Court for consideration.The statutory rule being very clear, the executive authority cannot take away the rigour of the rule and grant a relaxation and to that extent G.O.(P) No.56/11/G.Edn. would be of no consequence. 6. Further, even on a reading of the G.O., it is indicated that what was permitted was regular appointments in regular scales of pay in the event of retirement, resignation, death and long leave, which again would indicate a continuous service of one academic year entitling a person for vacation salary also as per Rule 49 of WP(C).No.1835 of 2012 - 4 - Chapter XIV-A KER. In such circumstance, the petitioner's claim cannot be upheld. 7. Further useful reference can be made to direction No. (iv) in the decision in _**State of Kerala v. Sneha Cheriyan**_ **[2013 (1)** **KLT 755 (SC)]** , which also mandates that only on a vacancy extending beyond one academic year would there be an entitlement to claim a regular scale of pay, which is extracted hereunder:- “(iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wages basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis”. 8. Further, as specifically pointed out by the learned counsel for the management, a declaration as to the regular scale of pay in the case of the petitioner would entitle and revive a Rule 51A claim, which cannot be granted unless the petitioner approaches the statutory authorities and in any event, not without making the affected teachers in the party array. - 5 - WP(C).No.1835 of 2012 9. The claim for interdiction of recovery is based on the decision in _**Rafiq Masih**_ ( _supra_ ). The Hon'ble Supreme Court specifically took note of five instances where recovery could be interdicted; none of which appears relevant here. The writ petition, hence, would stand dismissed. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]