S.KRISHNAKUMARI v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 20TH DAY OF AUGUST 2014/ 29TH SRAVANA, 1936** **WP(C).No. 3740 of 2014 (N) ---------------------------** **PETITIONER :** **S.KRISHNAKUMARI, W/O. T.MOHANACHANDRAN, ANANDA BHAVAN, AYIROOR NORTH, KOZHENCHERRY PATHANAMTHITTA (UPPER PRIMARY SCHOOL ASSISTANT DEVASWOM BOARD HINDU UPPER PRIMARY SCHOOL ERAMALLIKARA)** ## **BY ADV. SRI.S.SUBHASH CHAND** **RESPONDENTS :** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETATIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695001.** **3. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER MAVELIKARA - 690101** **4. THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, CHENGANNOOR - 689121** **5. THE CORPORATE MANAGER/SECRETARY TRAVANCORE DEVASWOM BOARD SCHOOLS, NANDHANCODE, THIRUVANANTHAPURAM-695001.** **6. THE HEADMISTRESS HINDU UPPER PRIMARY SCHOOL, ERAMALLIKARA.** ## **WP(C).No. 3740 of 2014 (N)** ## **ADDL.R7 IMPLEADED :** **7. LIJI R.PANICKER, W/O.MADHUSOODANAN NAIR.K.,** **KONDOOR HOUSE, PARUMALA.P.O.,THIRUVALLA. ADDL. R7 IS IMPLEADED AS PER ORDER DATED 22/07/2014 IN IA 9620/2014.** **R1 TO R4 BY SENIOR GOVERNMENT PLEADER SMT. RAJASREE M.J. R5 BY ADV. SRI.M.V.S.NAMBOOTHIRI, SC, TRAVANCORE DEVASWOM BOARD ADDL.R7 BY ADV. SRI.SHINDO VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 3740 of 2014 (N) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1: TRUE COPY OF THE PROVISIONAL LIST OF RULE 51A CLAIMANTS UNDER RESPONDENT NO. 5 AS ON 1-6-2008.** **EXHIBIT P2: TRUE COPY OF THE ORDER OF APPOINTING DATED 4-6-2012 ISSUED BY RESPONDENT NO. 5 ON WHICH THE ORDER OF APPROVAL DATED 17-10-2012 OF THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY WAS ENDORSED.** **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 10-10-2013 PASSED BY RESPONDENT NO. 5 TRANSFERRING THE PETITIONER FROM DEVASWOM BOARD HIGH SCHOOL, KANGAZHA TO HINDU UPPER PRIMARY SCHOOL, ERAMALLIKARA.** **EXHIBIT P4: TRUE COPY OF THE ORDER BEARING NO. B /3127/13 DATED 30-11-2013 ISSUED BY RESPONDENT NO. 4 TO RESPONDENT NO.** **EXHIBIT P5: TRUE COPY OF THE GOVERNMENT CIRCULAR BEARING NO. 13402/J2/12/G.EDN DATED 10-5-2012.** **EXHIBIT P6: TRUE COPY OF THE ORDER BEARING NO. F3/34854/13/DPI/K.DIS DATED 24-8-2013 ISSUED BY RESPONDENT NO.2** **EXHIBIT P7: COPY OF THE APPROVED APPOINTMENT ORDER DT 1/6/2010 OF SMT. JYOTHIS R. NAIR, HIGH SCHOOL ASSISTANT (MATS), DEVASWOM BOARD HIGHER SECONDARY SCHOOL, CHERIYANAD** **RESPONDENT(S)' EXHIBITS :** **EXT. R4(a): COPY OF THE G.O.(RT)NO. 274/2014/G.EDN. DT 18/01/2014. EXT.R4(b): COPY OF THE PROCEEDINGS DT 1/02/2014** **//TRUE COPY//** **P.S. TO JUDGEB** **bp** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **W.P.(C).No.3740 of 2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20[th] day of August, 2014 ## **J U D G M E N T** The petitioner is presently working as an Upper Primary School Assistant in Devaswom Board Hindu Upper Primary School, Eramallikara under the corporate management of the Travancore Devaswom Board. She was initially appointed as U.P.S.A in Devaswom Board Higher Secondary School, Cheriyanadu. That was in a vacancy which was available upto 27/09/2003. The said appointment was on 15/07/2003. It is the case of the petitioner that by virtue of the above appointment, she became a qualified hand under Rule 51A of Chapter XIVA of the Kerala Education Rules and on recognition of her claim under Rule 51A, she was appointed as U.P.S.A. in Devaswom Board High School, Kangazha with effect from 04/06/2012. The said appointment was also approved with effect from even date, which is evident from Ext.P2. 2. The petitioner, while working as U.P.S.A in Devaswom Board High School, Kangazha was transferred to Hindu Upper Primary School, Eramallikara with effect from 17/10/2013 by order of the Manager. The transfer was on account of a vacancy that arose in Hindu Upper Primary ## **`W.P.(C).No.3740/2014`** ## **-:2:-** School, Eramallikara due to transfer of one Smt.Liji R.Panicker, U.P.S.A to Devaswom Board High School, Erumeli. 3. However, it is submitted by the learned counsel for the petitioner by relying on Ext.P4 order that salary and other allowances of the petitioner were not disbursed to her on the ground that appointment of the transferee, namely, Smt.Liji R.Panicker was rejected and that promotion of another senior claimant Smt.Jyothi R.Nair as High School Assistant was not approved. It is also mentioned in Ext.P4 order that Hindu Upper Primary School, Eramallikara is an uneconomic school and all appointments made therein, on or after 01/06/2011, shall be treated as daily wages only. This was based on a Government Circular No.1340/12/12/Gen.Edn., dated 10/05/2012. A copy of the above Circular is also produced as Ext.P5 in the writ petition. 4. It appears that Smt.Liji R.Panicker's appointment was not approved consequent upon rejection of approval of appointment of Smt.Jyothi R.Nair, U.P.S.A as H.S.A. It is admitted in the counter affidavit filed by the fourth respondent before this Court that consequent upon the directions of this Court in W.P.(C).No.21721/2013 filed by Smt.Jyothi ## **`W.P.(C).No.3740/2014`** ## **-:3:-** R.Nair, the appointment of Smt.Jyothi R.Nair has been approved. The petitioner also relies on Ext.P6 and submits that appointment of Smt.Liji R.Panicker has also been approved, consequent upon the order (Ext.P6) passed by the Additional Director of Public Instructions. Thus, according to the petitioner, there is a substantive vacancy based on which she was transferred to the Hindu Upper Primary School, Eramallikara, as per Ext.P3 order and, therefore, she is entitled for salary and other allowances. 5. The petitioner is not a fresh hand in the post which became vacant on account of transfer of Smt.Liji R.Panicker. Therefore, I am of the view Ext.P5 has no application in the matter in issue. As rightly pointed out by learned counsel for the petitioner Shri S.Subash Chand, Ext.P5 would only apply when fresh hands are posted in uneconomic schools. Further, petitioner being a Rule 51A claimant, she has to be absorbed as against protected teachers, who are to be deployed in uneconomic schools {see judgment in _**Ciji P.Jose vs. State of Kerala and others**_ **[2012 (1) KLT 867]}** . Thus, the petitioner's appointment as U.P.S.A in Devaswom Board High School, Kangazha having been approved, her transfer to Hindu Upper Primary School, Eramallikara cannot be denied based on Ext.P5 Circular. ## **`W.P.(C).No.3740/2014`** ## **-:4:-** Therefore, salary and allowances of the petitioner cannot be withheld based on Ext.P5. 6. This Court as per order dated 22/07/2014 directed respondents 4 and 5 to get instructions as to whether there is a vacancy available in Devaswom Board Hindu Upper Primary School, Eramallikara. Liji Panicker also got impleaded in this matter as per I.A.No.9620/2014. It is stated by her that she has been transferred to Devaswom Board High School, Erumeli by respondent No.5 as per the order dated 07/09/2013. It is also stated that she is now working as an Upper Primary School Assistant at Devaswom Board High School, Erumeli. In view of the facts as above and also based on **Ciji P.Jose's case** ( _supra_ ), the petitioner's appointment has to be approved. I am of the view that Smt.Liji Panicker is also entitled for approval as she is also a Rule 51A claimant consequent upon the approval of appointment of the petitioner as ordered above. Accordingly, Ext.P4 is quashed. There shall be a consequential direction to the Assistant Educational Officer, Chengannur to pass appropriate orders approving the appointment of the petitioner and sanction disbursement of salary with ## **`W.P.(C).No.3740/2014`** ## **-:5:-** effect from the date of appointment. Needful shall be done within a period of four weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ms