Rekha.K w/o Sreekumar A v State of Kerala & Others

**WP(C) NO. 19779 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944** **WP(C) NO. 19779 OF 2021** ## **PETITIONER:** REKHA.K W/O.SREEKUMAR.A, SOUPARNIKA HOUSE, KALLIPADAM.P.O, KULAPPULLY, SHORNUR-679122(HIGH SCHOOL TEACHER (HINDI), NSS VOCATIONAL HIGHER SECONDARY SCHOOL, MUNDATHICODE). BY ADV S.SUBHASH CHAND ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001. 2 THE DIRECTOR OF GENERAL EDUCATION, (FORMERLY THE DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695001. 3 THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, NEDUMANGADU-695541. 4 THE GENERAL MANAGER AND INSPECTOR OF NSS SCHOOLS, OFFICE OF THE GENERAL MANAGER AND INSPECTOR OF NSS SCHOOL, PERUNNA, CHANGANACHERRY-686102. BY ADVS. ADVOCATE GENERAL OFFICE KERALA V.VIJULAL **WP(C) NO. 19779 OF 2021** **2** SMT ANIMA M, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 19779 OF 2021** **3** ## **JUDGMENT** The petitioner contends that she is presently working as a High School Teacher (Hindi) in the NSS Vocational Higher Secondary School, Mundathicode. She has approached this Court being aggrieved by Ext.P5 order passed by the 1st respondent refusing to grant sanction and disburse full-time benefits to the petitioner herein by reckoning full-time approved service with effect from 13.08.2001 to 29.09.2008 and for incidental reliefs. ## 2. Brief facts are as under: The petitioner contends that she had entered aided school service as a Full-Time Lower Grade Hindi Teacher in the NSS HS, Mundathicode on 13.08.2001. Ext.P1 is the order as per which approval was granted to the petitioner. She asserts that she continued in service as a Full-Time Lower Grade Hindi Teacher till 29.09.2008. She applied for Leave Without Allowance for undergoing D.El.Ed course. She contends that after completing the course she reported back to duty on 15.07.2009. By that time, there occurred a division fall and she could be accommodated only as a part-time Lower Grade Hindi Teacher in the NSS Upper Primary School, Kokotella with effect from 15.07.2009 onwards. The said school also comes under the same educational **WP(C) NO. 19779 OF 2021** **4** agency. The said appointment was approved by Ext.P2 order dated 15.07.2009. According to the petitioner, going by the provisions of Ext.P3 Government Order, part-time language teachers who have put in more than 5 years of service and have 8 periods of work are entitled to full-time benefits. The petitioner, in the said circumstances, claimed the said benefits and approached the 3rd respondent. However, by Ext.P4 and Ext.P5 orders, the request was rejected on the ground that the petitioner is entitled to full-time benefits only with effect from 15.07.2014, the date on which she would complete five years of service in the part-time post of Lower Grade Hindi Teacher. According to the petitioner, Exts.P4 and P5 orders cannot be sustained under law as it is clearly against the law laid down by the Division Bench of this Court in **Bindu K Unnithan v. State of Kerala & Others** (2014 KHC 5044). It is in the afore circumstances, that this writ petition is filed seeking the following reliefs: i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P5 order of respondent No.1. ii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P4 order of respondent No.3. iii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 3 to sanction and disburse full time benefits to the petitioner in the part time post of lower Grade Hindi Teacher with effect from 15.07.2009 onwards reckoning her full time approved service with effect from 13/8/2001 onwards in the light of Ext.P3 Government order and Ext.P6 ruling of this Hon’ble Court forthwith or with such time as may this Hon’ble **WP(C) NO. 19779 OF 2021** **5** Court may deem fit and proper in the interest of justice. iv) To issue a declaration that the petitioner is entitled to be sanctioned and disbursed with full time benefits in the part time post of lower Grade Hindi Teacher with effect from 15.07.2009 onwards reckoning her full time approved service with effect from 13/8/2001 onwards in the light of Ext.P3 Government Order and Ext.P6 ruling of this Hon’ble Court and denial of the same by Ext.P5 order is grossly unjustifiable, arbitrary and untenable in law being violative of Articles 14 and 21 of the Constitution of India rendering the same liable to be struck down by this Hon’ble Court. 3. A counter affidavit has been filed by the 1st respondent. After narrating the facts involved, it is stated that the Government by Ext.R1(e) order has clarified that for granting full-time benefits to part-time language teachers, 5 years aggregate service should be in the same educational agency and 5 years service should be as a part-time teacher. According to the respondent, as the petitioner has not complied with the said condition, her request cannot be granted. It is also stated by relying on Ext.R1(c) and R1 (d) that the petitioner had attended school only 3 days per week from 15.07.2009 and she was assigned less than 15 periods per week. 4. I have considered the submissions advanced and have gone through the records. 5. Ext.P1 would reveal that the petitioner was granted an appointment as a Full-time Lower Grade (Hindi) teacher with effect from 13.8.2001 onwards in the NSS High School, Mundathikodu. It is undisputed **WP(C) NO. 19779 OF 2021** **6** that she completed 5 years of service in the above Full-time post on 13.8.2006. She had availed Leave Without Allowance for pursuing D.El.Ed course from 29.9.2008 to 15.7.2009. She joined back on 15.7.2009 but she could not be accommodated in the Full-Time post due to division fall. She was accommodated as a Part-Time Lower Grade Hindi Teacher with effect from the date of joining in the NSS Upper Primary School, Kokotella. There is no dispute that the said school also comes under the very same educational agency. 6. While rejecting the request made by the petitioner for Full-Time benefits, the respondents have taken the stand that she is entitled to FullTime benefits by reckoning her service as a Part-Time Lower Grade Teacher and that she would become entitled only with effect from 15.7.2014, the date on which the petitioner would complete 5 years of service in the Part-Time post. 7. The very same issue had come up for consideration before a Division Bench of this Court in **Bindu.K.Unnithan** (Supra). In paragraphs 4 to 11 of the judgment, it was held as follows: ‘4. The contention raised by the learned counsel for the appellant is that in view of Exts. P-2 and P-3 Government Orders, she is entitled to fulltime benefits. The provision for conversion of part-time language teachers into full-time as contained in Ext. P-2 Government Order reads thus; “(vi) Conversion of part-time language teachers into full-time. **WP(C) NO. 19779 OF 2021** **7** The formula for creating full-time posts in independent High Schools and U.P. Schools attached to High Schools will be extended to independent U.P. Schools and L.P. Schools and U.P. Schools with attached L.P. - Schools. Besides this, part time language teachers who have put in more than 5 years service and have 8 periods of work shall henceforth be made full-time.The utilisation of the services of these teachers for teaching regular classes and other subjects and giving them adequate work will be examined by the Director of Public Instruction. This will be with effect from the academic year 1973-74." 5. Reading of this paragraph shows that part-time language teachers who have put in more than five years service and having eight periods of work are allowed full-time benefits. Subsequently, in response to a clarification sought by the Director of Public Instruction, the Government issued Ext. P-3. The clarification sought was whether five years requirement provided in Ext P-2 would be satisfied if a claimant has five years aggregate service. This was clarified by the Government thus: “3. Government have examined the matter in detail and are pleased to clarify that 5 years continuous aggregate service will be sufficient to give full-time benefit as per the G.O. read as 1st paper above.” 6. Thus, according to the appellant, she having commenced her service as a full-time teacher in January, 2002, as on 15.7.2007, when her post was converted as a part-time post, she was having more than five years service as full-time teacher. Therefore, she says that when aggregate service is to be reckoned for determining her eligibility for full-time benefits, her service as full-time teacher should also be reckoned. It is on that basis, the appellant seeks to sustain her claim for full-time benefit as provided in Ext. P-2 Government Order referred to above. 7. Learned Government Pleader resisted this plea by contending that the benefit that is provided in Exts. P-2 and P-3 are available only to part-time teachers who have five years aggregate service as part-time. According to him, therefore the appellant who had service as full-time teacher does not get protection of Exts. P-2 or P-3. **WP(C) NO. 19779 OF 2021** **8** ## 8. We have considered the submissions made. 9. In our view, there is substance in what the appellant contends. We have already seen that Ext. P-2 provided that part-time language teachers who have put in more than five years service and have eight periods of work shall be made full-time. Therefore, a part-time teacher satisfying the above requirements is entitled to full-time benefits. If the interpretation of the learned Government Pleader is accepted, the benefit of Ext. P-2 Government Order will be available only to those part-time teachers who have rendered more than 5 years of service as part-time itself. In other words, before completing five years, if a part-time teacher becomes a full-time teacher and again becomes a part-time teacher, she will not be able to reckon her previous service as a full-time teacher to claim the benefit of Ext. P-2. Similar is the case when a full-time teacher like the appellant gets herself reduced to part-time teacher after rendering service for any number of years will not be eligible for the benefit of Ext. P-2 where as her juniors, who worked as part-time teachers, with lesser workload, will be getting the benefit of full-time. 10. Such a situation would lead to undue hardships and even discriminatory treatment of senior teachers. In our view, it was to remedy that situation that the Government has clarified in Ext. P-3 that in reckoning the five year period specified in Ext. P-2 Government Order, aggregate service can be reckoned. In other words, a part-time teacher having service as full-time teacher should be eligible to reckon the full-time service also for the purpose of determining whether he or she has five years service specified in Ext. P-2. Otherwise, as we have already pointed out, there could be situations where the seniors will be at a disadvantage and therefore the interpretation as canvassed by the learned Government Pleader cannot be accepted. 11. The above view that we have taken is also fortified by Ext. P-10 staff fixation order issued by the A.E.O., Adoor. In this order, in a case which is similar to that of the appellant, reckoning the full-time service also, the five year period has been reckoned and the benefit of full-time has been given to a part-time teacher.’ **WP(C) NO. 19779 OF 2021** **9** 8. The principles laid down by the Division Bench would squarely apply to the facts of the instant case. When a Full-Time Teacher, like the petitioner, works for over 5 years and thereafter if she is reduced to a PartTime teacher, she would be entitled to the benefits of the Government Order. The respondents are not right in concluding that only a teacher who worked for over 5 years as a Part-time teacher is entitled to claim the benefits. Even as per the counter, the petitioner was having more than 8 periods of work per week and there is no case that the petitioner is not working in a school under the very same educational agency. 9. In view of the above discussion, the petitioner is entitled to succeed. Exts.P4 and P5 orders issued by the respondents will stand quashed. There will be a direction to the respondents 1 to 3 to sanction and disburse Full-Time benefits to the petitioner in the Part-time post of Lower-Grade Hindi Teacher with effect from 15.7.2009 onwards reckoning her Full-Time approved service with effect from 13.8.2001 onwards. Necessary orders shall be passed expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** IAP **WP(C) NO. 19779 OF 2021** **10** ## **APPENDIX OF WP(C) 19779/2021** PETITIONER'S EXHIBITS: Exhibit P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 13/8/2001 ISSUED BY RESPONDENT NO.4 - Exhibit P2 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 15/7/2009 ISSUED BY RESPONDENT NO.4 Exhibit P3 TRUE COPY OF THE ABOVE BASIC GOVERNMENT ORDER BEARING GO(MS)NO.62/73/S.EDN.DATED 2/5/1973 ISSUED BY RESPONDENT NO.1 - Exhibit P4 TRUE COPY OF THE ORDER DATED 4/4/2013 PASSED BY RESPONDENT NO.3 - Exhibit P5 TRUE COPY OF THE REVISIONAL ORDER BEARING GO NO.2896/2021/G.EDN.DATED 2/6/2021 PASSED BY RESPONDENT NO.1 - Exhibit P6 TRUE COPY OF THE ABOVE RULING OF THIS HON'BLE COURT REPORTED IN BINDU.K.UNNITHAN VS.STATE OF KERALA AND OTHERS (2014 KHC 5044). RESPONDENTS' EXHIBITS: Exhibit R1(a) : True copy of letter dated 20.01.2016 of the Deputy Director of Education,Thiruvananthapuram Exhibit R1(b) : True copy of order No.RA(1)/20872/2017/DPI/K.Dis dated 19.05.2017 - Exhibit R1(c) : True copy of time table of the year 2009-10 Exhibit R1(d) : True copy of relevant pages of attendance register during the period from 2009-10 to 2014-15 Exhibit R1(e) : True copy of the G.O(MS) No.152/78/G.Edn dated 31.10.1978