Sandhya K.S v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 23RD DAY OF JUNE 2014/2ND ASHADHA, 1936** ## **WP(C).No. 22582 of 2012 (W)** **-----------------------------------------** **PETITIONER(S): ----------------------** **SANDHYA K.S, AGED 42 YEARS, KEEZHOTTIL HOUSE, VAIPUR P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI DISTRICT-685601.** **4. THE DISTRICT EDUCATIONAL OFFICER, KATTAPPANA, IDUKKI DISTRICT-685602.** **5. THE GENERAL MANAGER & INSPECTOR OF N.S.S SCHOOLS, PERUNNA P.O. CHANGANACHERRY, KOTTAYAM DISTRICT. 686 102.** **R1-R4 BY SENIOR GOVERNMENT PLEADER SRI.V.VIJULAL R5S BY ADV. SRI.P.GOPAL SRI.B.MURALEEDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 22582 of 2012 (W) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **------------------------------------** **EXHIBIT P1: TRUE COPY OF THE ORDER DATED 20.7.2009 OF THE 4TH RESPONDENT.** **EXHIBIT P2: TRUE COPY OF THE ORDER DATED 21.8.2010 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P3: TRUE COPY OF THE REVISION UNDER RULE 92 OF CHAPTER XIV-A K.E.R SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT.** **EXHIBIT P4: TRUE COPY OF THE ORDER NO.21053/E3/2012/G.EDN. DATED 4.7.2012 ISSUED BY THE GOVERNMENT.** **EXHIBIT P5: TRUE COPY OF THE JUDGMENT REPORTED IN 2009 (2) KHC 550.** **EXHIBIT P6: TRUE COPY OF G.O.(P) NO.56/11/G.EDN. DATED 26.2.2011.** **RESPONDENTS' EXHIBITS** **-------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.N.RAVINDRAN, J.** **=-=-=-=-=-=-=-=-=-=-= W.P.(C)No.22582 of 2012** ## **=-=-=-=-=-=-=-=-=-=-=-= Dated this the 23[rd] day of June, 2014** ## **JUDGMENT** The petitioner was appointed as H.S.A. (Malayalam) in N.S.S. High School, Koottar by the fifth respondent Manager by Ext.P1 appointment order dated 20.7.2009. The said appointment was in the vacancy of Smt.Asha Mohan, H.S.A. (Malayalam) who was transferred from N.S.S. High School, Koottar to N.S.S. High School, Manakkad with effect from 1.6.2009. By order passed on 9.11.2009, the District Educational Officer, Kattappana approved the said appointment on daily wages basis for the period from 20.7.2009 to 12.3.2010 and on a regular basis with effect from 1.6.2010 onwards. Aggrieved thereby, the Manager of the school filed an appeal before the Deputy Director of Education, Idukki, who dismissed the appeal by Ext.P2 order passed on 21.8.2010. Though the petitioner's appointment was approved on daily wages basis for the period from 20.7.2009 to 12.3.2010 and on a regular basis with effect from 1.6.2010 onwards, salary and allowances was not disbursed to her on account of an objection raised by the District Educational Officer himself that she was overaged as on 1.6.2010. 2. Aggrieved thereby, the petitioner moved the Government **W.P.(C)No.22582 of 2012** **2** by filing Ext.P3 revision petition dated 15.2.2012. In the meanwhile, in **Unninarayan K. and Others v. State of Kerala** [2009 (2) KLT 604] a Division Bench of this Court held, interpreting rule 7A of Chapter XIV-A of the Kerala Education Rules as amended, that appointments against regular vacancies are liable to be approved on a regular scale of pay notwithstanding the fact that the appointment does not cover the full academic year. Thereupon, the State of Kerala moved the Apex Court and the Special Leave Petitions filed by the State of Kerala were pending in the Apex Court at the point of time when the petitioner filed Ext.P3 revision petition. The Government had also issued Ext.P6 order dated 26.2.2011 whereby it directed that appointments, the duration of which is less than eight months should be approved only on daily wages basis and appointments for a term exceeding eight months can be approved on a scale of pay basis. The Government considered Ext.P3 revision petition filed by the petitioner and rejected it on the ground that as on 1.6.2010 she was overaged. The Government also held that Ext.P6 order does not have retrospective effect. The said decision of the Government was communicated to the petitioner by Ext.P4 letter dated 4.7.2012. Ext.P4 letter is under challenge in this writ petition wherein, the petitioner seeks the following reliefs:- **W.P.(C)No.22582 of 2012** **3** - _“i) Call for the records leading to the issuance of Exhibit P4 and issue a writ of certiorari quashing the same;_ - _ii) To issue a writ of mandamus or any other appropriate writ order or direction, commanding the respondents to approve the appointment of the petitioner as H.S.A. (Malayalam) in N.S.S. High School, Koottar with effect from 20-7-09.”_ 3. The principal contention raised in the instant writ petition is that as the petitioner's appointment was against a regular vacancy, the mere fact that the appointment did not cover the full term of the academic year is not a ground to deny approval on a regular basis with effect from 20.7.2009. It is contended that it is by splitting up a regular appointment that the District Educational Officer and the Government have taken the stand that the petitioner was overaged as on 1.6.2010. It is contended that as the petitioner had not attained 39 years of age as on 1.1.2009, which is the relevant date in view of the stipulations contained in sub-rule (2) of rule 1 of Chapter XIV-A of the Kerala Education Rules and the vacancy against which the petitioner was appointed had a duration of more than eight months, the petitioner is entitled to have her appointment approved on a regular basis. 4. A counter affidavit dated 4.5.2013 has been filed on behalf of the State of Kerala. The stand taken therein is that as the petitioner's date of birth is 29.5.1970, she was overaged as on **W.P.(C)No.22582 of 2012** **4** 1.6.2010 and consequently, she cannot claim regular appointment with effect from 1.6.2010. In paragraph 4 it is stated that though a vacancy of H.S.A. (Malayalam) arose on 1.6.2009 when Smt.Asha Mohan, H.S.A. (Malayalam) was transferred from N.S.S. High School, Koottar to N.S.S. High School, Manakkad, the petitioner was appointed only with effect from 20.7.2009 and therefore, the appointment being one for a term shorter than one academic year, it was liable to be approved only on daily wages basis. 5. The fifth respondent has filed a counter affidavit dated 29.3.2014. In paragraph 4 thereof it is stated that the vacancy against which the petitioner was appointed was a regular/ established vacancy, but the District Educational Officer approved it only from 20.7.2009 to 12.3.2010 on daily wages basis and thereafter from 1.6.2010 onwards on a regular basis. The Manager has also stated that the District Educational Officer did not reckon the period during which the SSLC Examination, 2010 was held in the school, namely the period from 13.3.2010 to 31.3.2010. In paragraph 5, it is contended that as the petitioner was appointed against a regular vacancy and not against a temporary vacancy, the appointment was liable to be approved on a regular basis with effect form 20.07.2009. Reliance is placed on a decision of the Division Bench of this Court in **Unninarayan K. and Others v. State of** **W.P.(C)No.22582 of 2012** **5** **Kerala** [supra], the decision of the Apex Court in **State of Kerala and Others v. Sneha Cheriyan and Another** [2013 (1) KLT 755] and the recent decision of a learned single Judge of this Court in **Nair Service Society v. State of Kerala and Others** [2013 (4) KLT 921] in support of the said contention. The fifth respondent has also contended that as the petitioner's appointment was for more than eight months, she is also entitled to vacation salary for the year 2009-2010 and approval on a regular basis. 6. I heard Sri.Santhosh Mathew, learned counsel appearing for the petitioner, Sri.V.Vijulal, learned Senior Government Pleader appearing for respondents 1 to 4 and Sri.P.Gopal, learned counsel appearing for the fifth respondent. I have also gone through the pleadings and the materials on record. The fact that a regular vacancy of H.S.A. (Malayalam) arose on 01.06.2009 consequent on the transfer of Smt.Asha Mohan from N.S.S. High School, Koottar to N.S.S. High School, Manakkad is not in dispute. The petitioner was, however, appointed only on 20.07.2009. The fact that she was in service in the school as on the last working day of the academic year 2009-2010 is also not in dispute. Thus, as on 31.03.2010, the petitioner had more than eight months' service in the school. It is well settled by the decisions of this Court in **Unninarayan K. and Others v. State of Kerala and Others** [supra] as modified by the **W.P.(C)No.22582 of 2012** **6** Apex Court in **State of Kerala and Others v. Sneha Cherian and Another** [supra] and the decision of a learned single Judge of this Court in **Nair Service Society v. State of Kerala and Others** [supra] that any vacancy in the regular establishment filled in the course of an academic year would have to be approved on a regular scale of pay with the sole rider that the incumbent would be entitled to vacation salary only if he or she has completed eight months' service as on the last working day of the academic year concerned. In the instant case, though the petitioner had more than eight months' service in the school, the District Educational Officer declined to take note of the service rendered by her during the period when the S.S.L.C. Examination was being held and approved the appointment only on daily wages basis for the period from 20.07.2009 to 12.03.2010. It is also not in dispute that the vacancy against which the petitioner was appointed continued in the next academic year and even now the vacancy is in existence. It was by artificially creating a break that the appointment of the petitioner was approved on daily wages basis for the period from 20.07.2009 to 12.03.2010, may be out of overzealousness to protect the pecuniary interests of the Government. The District Educational Officer thereby created room for him to raise an objection that as on 01.06.2010, the date from which he had **W.P.(C)No.22582 of 2012** **7** himself approved the appointment on a regular basis, the petitioner was overaged. He thereby created yet another impediment to the petitioner's appointment being approved. On the facts, I am of the opinion that the stand taken by the District Educational Officer when he approved the petitioner's appointment on daily wages basis for the period from 20.07.2009 to 12.03.2010 and on a regular basis only with effect from 01.06.2010, has to be deprecated as conduct unworthy of a public servant. He did not when he approved the petitioner's appointment in that manner, take note of the law laid down by this Court in **Unninarayan K and Others v. State of Kerala and Others** [supra] which was decided on 06.04.2009. The District Educational Officer had a duty to go by the law laid down by this Court **Unninarayan K and Others v. State of Kerala and Others** [supra] and to approve the petitioner's appointment on a regular basis. The State, which in a democratic set up has to be sensitive to the grievances of its citizens was also unsympathetic to the petitioner's cause when it held that she was overaged as on 01.06.2010, ignoring the fact that the appointment made on 20.07.2009 was liable to be approved on a regular basis and that on the day the appointment order was issued, the petitioner was not overaged. In the light of the binding decision of the Apex Court in **State of Kerala and Others v. Sneha Cherian and Another** **W.P.(C)No.22582 of 2012** **8** [supra] and the recent decision of this Court in **Nair Service Society v. State of Kerala and Others** [supra], I am of the opinion that the petitioner is entitled to have her appointment approved on a regular basis with effect from 20.07.2009. 7. I accordingly allow the writ petition, set aside the order passed by the District Educational Officer, Kattappana on 09.11.2009 approving the petitioner's appointment on daily wages basis for the period from 20.07.2009 to 12.03.2010 and on a regular basis only with effect from 01.06.2010 onwards, Ext.P2 order passed by the Deputy Director of Education, Idukki upholding the order of the District Educational Officer and Ext.P4 letter dated 04.07.2012 sent by the State Government and declare that the petitioner is entitled to have her appointment approved on a regular basis with effect from 20.07.2009. Consequently, there will be a direction to the District Educational Officer, Kattappana to issue revised orders approving the petitioner's appointment on a regular basis with effect from 20.07.2009, within two weeks from the date on which the petitioner produces a copy of this judgment before him. In view of the fact that the petitioner had eight months' service as on 31.03.2010, she will also be eligible to draw vacation salary for the academic year 2009-2010. Arrears of salary and allowances in the regular scale of pay including vacation salary for **9** ## **W.P.(C)No.22582 of 2012** the academic year 2009-2010 shall be drawn and disbursed to the petitioner within two months from today. The petitioner who was handling classes in the school was denied salary notwithstanding her entitlement and she was forced to move this Court for reliefs on account of a deliberate act on the part of the official respondents. I therefore deem it appropriate to award the petitioner costs which I quantify at ` 25,000/- (Rupees twenty five thousand only). Costs as directed above shall be paid within two months from today. It will be open to the State of Kerala to recover the said amount from the District Educational Officer, Kattappana who was in office on 9.11.2009, if the Government are of the opinion that the District Educational Officer, Kattappana who declined to approve the petitioner's appointment on a regular basis, was at fault. Sd/- **P.N.RAVINDRAN JUDGE** **vpv/rv**