Ravi L.N. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** **WP(C) NO. 8407 OF 2019** ## **PETITIONER:** RAVI.L.N. AGED 49 YEARS S/O.SANKARAN NAIR.M., HSST (HINDI), CATHOLICATE HSS, PUTHUKAL, MALAPPURAM, RESIDING AT LAKSHMI NIVAS, KOLLAM-KOYILANDY.P.O., KOZHIKODE. BY ADVS. M.SASINDRAN SRI.V.VENUGOPAL 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, SHANTI NAGAR, THIRUVANANTHAPURAM-695014. 3 THE REGIONAL DEPUTY DIRECTOR, OFFICE OF THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, MALAPPURAM-676505. 4 THE CORPORATE MANAGER, THE SOCIETY OF THE ORDER OF SACRED TRANSFIGURATION, MOUNT TABOR, PATHANAPURAM-689695. BY ADVS. GOVERNMENT PLEADER SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM ## **RESPONDENTS:** SRI. SUNIL KUMAR KURIAKOSE - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 8407 OF 2019** **2** ## **JUDGMENT** The petitioner says that she is presently working as Higher Secondary School Teacher (H.S.S.T) (Hindi) in “Catholicate H.S.S”, Puthukal, Malappuram and has approached this Court aggrieved by denial of the up-gradation of the post of H.S.S.T (Hindi) from the academic year 2002-03, even though apposite proposal for the same had been made by the 4[th] respondent – Corporate Manager of the School, based on the approved Staff Fixation Order, namely Ext.P2. 2. Sri.M.Sasindran – learned counsel for the petitioner, began his submissions saying that the issues in this case have already been considered by this Court at least in three judgments and cited _**K.V.Sreejith & others vs. State of Kerala & others**_ (WP(C) No.20849/2013); _**Cyriac Stephen vs. State of Kerala & others**_ (WP(C) No.3530/2018 and _**Lissimole.M vs. state of Kerala & others**_ (WP(C) No.9293/2019). Sri.M.Sasindran asserted that the common view in all the afore three judgments is **WP(C) NO. 8407 OF 2019** **3** that when posts are created by the Government, it cannot operate prospectively alone and that it should relate back to the date on which they become eligible to the School, based on the student strength. Sri.M.Sasindran showed me that, going by Ext.P2, the post of H.S.S.T (Hindi) was available throughout from the year 2002-03, but that when Ext.P5 order was issued on 15.07.2013 – which is, in fact, a common order with respect to 368 Aided Higher Secondary Schools – the post was allowed to be created only prospectively. He submitted that this stand of the Government in Ext.P5 is incorrect and illegal and that this has been found so in the aforementioned three judgments. He, therefore, prayed that this writ petition be allowed in the manner as prayed for by his client. 3. The learned Government Pleader – Sri.Sunil Kumar Kuriakose, controverted the afore submissions of Sri.M.Sasindran, however, without disputing the fact that the three judgments afore mentioned make affirmative declarations of law as stated by the petitioner; but arguing that, even going by **WP(C) NO. 8407 OF 2019** **4** Ext.P2, for three consecutive years from 2002-03, the School did not have sufficient student strength to accommodate the post of H.S.S.T claimed by the petitioner. He, therefore, prayed that this Court may not grant any relief to the petitioner and that this writ petition be dismissed. He then added that a Special Leave Petition is pending before the Hon’ble Supreme Court with respect to the question as to whether creation of posts would have retrospective effect. 4. I have examined the afore contentions and have also gone through the pleadings on record. 5. I notice that a counter affidavit has been filed by the 3[rd] respondent, wherein, the following averments have been made: “ _It is further submitted that in order to upgradation of the post consistency of students strength ie., minimum of 60 + 1 and +2 students strength except a marginal increase for both +1 and +2 classes for 3 consecutive years are required but on verification of the staff fixation order No.G/5084/14/RDD/HSE/MLPM dated 06.08.2014. It is seen that consistency of students strength for both +1 and +2 for consecutive years were not maintained till 2011-12 academic year. During period from 2002-03 to 2005-06 sufficient strength (without marginal increase)_ **WP(C) NO. 8407 OF 2019** **5** _was not available in +2 classes from 2006-07 to 2007-08. Strength was available but in 2008-09 strength again decreased in +2 classes. Again the strength is maintained in 2009-10 but decrease in +2 classes in 2010-11 academic year. Thus the required consistency of students strength was not maintained till 2010-11 academic year._ _Thereafter as per GO(Ms)No.167/11/G.Edn dated 03.08.2011 an additional batch was sanctioned in Catholicate HSS, Puthukal, with effect from 2011-12 academic year. As per GO(Rt)No.680/12/G.Edn dated 10.02.2012 it was directed to engage guest lecture to handle the additional work load on additional batch till post are created by the Government. Accordingly increase students strength due to sanctioning additional batch could not be considered for upgradation of HSST (Junior) post till the date of post creation ie., 15.07.2013._ _Moreover in similar circumstances may orders are passed by this Hon'ble Court to approve the appointment from initial date as sought. But now the matter is pending before this Hon'ble Apex Court in SLP No.17479/2020 & SLP No.15232-15257/2019 interim order has been passed. True copy of the orders are produced herewith and marked_ _**”** as_ _**Annexure R3(a) & (b).**_ 6. It is perspicuous from the afore averments that respondents also admit that this Court has already issued orders granting approval to the teachers similarly situated as the petitioner, from the initial dates of their appointment. They only **WP(C) NO. 8407 OF 2019** **6** say that the legal issue is still pending before the Hon’ble Supreme Court in an SLP. 7. That said, the question whether the order creating the posts should operate only prospectively or retrospectively has been conclusively found by this Court and even though the Government says they have challenged the judgments before the Hon’ble Supreme Court, they themselves admit that no orders of interdiction has been issued yet by the Hon’ble Court. Therefore, it is beyond contest that I am bound to follow the view already taken by this Court earlier, from the touchstone of judicial consistency and discipline. In the afore circumstances, I deem it necessary to follow the ratio in the judgments afore cited by Sri.M.Sasindran and to thus allow this writ petition in the following manner. Resultantly, this writ petition is allowed and Ext.P4, to the extent to which it grants approval to the appointment of the petitioner only with effect from 22.07.2013 is set aside; with a consequential direction to respondents 2 and 3 to reconsider the **WP(C) NO. 8407 OF 2019** **7** claim of the petitioner, based on the declarations of law by this Court in the afore cited judgments and to issue appropriate orders thereon, after affording an opportunity of being heard to the petitioner and to the 4[th] respondent – Manager—either physically or through video conferencing—as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, all eligible benefits of the petitioner shall be disbursed by the respondents without any avoidable delay thereafter; and it is clarified that, should the Hon’ble Supreme Court declare the law contrary to the manner in which it has been now done by this Court, then the State will be at full liberty to take consequential action as is permitted in law. Sd/- ## **DEVAN RAMACHANDRAN** ## **JUDGE** SAS/02/08/2021 **WP(C) NO. 8407 OF 2019** **8** ## **APPENDIX OF WP(C) 8407/2019** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE ORDER APPROVING THE| ||PETITIONER AS HSST (JUNIOR) HINDI.| |EXHIBIT P2|TRUE COPY OF THE STAFF FIXATION ORDER ISSUED| ||BY THE REGIONAL DEPUTY DIRECTOR.| |EXHIBIT P3|TRUE COPY OF THE CIRCULAR ISSUED BY THE| ||DIRECTOR IN WHICH LIST OF SCHOOLS WHICH IS| ||ENTITLED FOR ADDITIONAL CREATION OF POST.| |EXHIBIT P4|TRUE COPY OF THE ORDER| ||NO.G/3616/2014/RDD/MLPM/HSE DATED 14.10.2014| ||ISSUED BY THE 3RD RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE G.O.(MS)NO.211/2013/G.EDN.| ||DATED 15.7.2013.| |EXHIBIT R3 (A)|TRUE COPY OF THE INTERIM ORDER SLP| ||NO.17479/2020| |EXHIBIT R3 (B)|TRUE COPY OF THE INTERIM ORDER SLP NO.15232-| ||15257/2019|