Sreeja J.T v. State of Kerala and Others (W.P.(C) No. 25712/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WP(C).No.25712 OF 2016(L)** ## **PETITIONER:** **SREEJA J.T AGED 34 YEARS PEON (OUT OF EMPLOYMENT FROM K.V.U.P SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM DISTRICT) RESIDING AT SREEJA BHAVAN, MADATHILKUNNU, KILIMANOOR P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.M.V.THAMBAN SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 695 001.** - **3 THE DEPUTY DIRECTOR (EDUCATION) THIRUVANANTHAPURAM 695 001.** WP(C) No.25712/2016 & conn.cases -: 2:- - **4 THE DISTRICT EDUCATIONAL OFFICER ATTINGAL, THIRUVANANTHAPURAM DISTRICT-695101.** - **5 THE ASSISTANT EDUCATIONAL OFFICER PANGODU, THIRUVANANTHAPURAM 695 601.** - **6 THE MANAGER** - **K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM 695 601.** - **7 THE HEAD MASTER** - **K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM 695 601.** - **8 SRI.YAHIA T** - **U.P.S.A (NOT APPROVED) K.V.U.P SCHOOL, PANGODU, THIRUVANANTHAPURAM-695601.** - **9 SMT.JASMINE** **U.P.S.A (NOT APPROVED) K.V.U.P SCHOOL, PANGODU, THIRUVANANTHAPURAM-695601.** **R1-5 BY SR GOVERNMENT PLEADER SRI.A.J.VARGHESE R6-9 BY ADV. SRI.P.K.MUHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2.03.2020 ALONG WITH RP.226/2019, WA.1653/2019, WA.1697/2019, THE COURT ON 25-05-2020 DELIVERED THE FOLLOWING:** WP(C) No.25712/2016 & conn.cases -: 3:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **RP.No.226 OF 2019 IN WP(C). 25712/2016** **AGAINST THE ORDER IN WP(C) 25712/2016(L) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/7TH RESPONDENT:** **THE HEAD MASTER, K.V.U.P.SCHOOL, PANGODU, THIRUVANANTHAPURAM-695001.** **BY ADVS. SRI.P.K.MUHAMMED SRI.K.M.GEORGE** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 6 & 8 & 9:** **1 SREEJA J.T. PEON (OUT OF EMPLOYMENT FROM K.V.U.P. SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM DISTRICT) RESIDING AT SREEJA BHAVAN, MADATHIKUNNU, KILIMANOOR P.O., THIRUVANANTHAPURAM-695601.** - **2 STATE OF KERALA** **REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** WP(C) No.25712/2016 & conn.cases -: 4:- - **4 THE DEPUTY DIRECTOR (EDUCATION) THIRUVANANTHAPURAM-695001.** - **5 THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM-695001.** - **6 THE ASSISTANT EDUCATIONAL OFFICER PANGODU, THIRUVANANTHAPURAM-695001.** - **7 THE MANAGER, K.V.U.P. SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695001.** - **8 SRI.YAHIA T.** - **U.P.S.A. (NOT APPROVED), K.V.U.P. SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695601..** - **9 SMT.JASMINE,** - **U.P.S.A. (NOT APPROVED), K.V.U.P. SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695601.** - **R1 BY ADV. SRI.M.V.THAMBAN SR.GOVT.PLEADER SRI.A.J.VARGHESE** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 2.03.2020, ALONG WITH WA.1653/2019, WA.1697/2019, WP(C).25712/2016(L), THE COURT ON 25-05-2020 PASSED THE FOLLOWING:** WP(C) No.25712/2016 & conn.cases -: 5:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WA.No.1653 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 25712/2016(L) OF HIGH COURT OF KERALA** ## **APPELLANT/6TH RESPONDENT:** **ABDUL LATHEEF M. AGED 44 YEARS MANAGER, KVUP SCHOOL, PANGODU, THIRUVANANTHAPURAM 695 001, RESIDING AT.** **BY ADV. SRI.S.SUJIN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5, 7 TO 9:** - **1 SREEJA J.T UPSA, KVUP SCHOOL, PANGODU THIRUVANANTHAPURAM 695 001.** - **2 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVT SECRETARIAT THIRUVANANTHAPURAM 695 001.** - **3 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM 695 014.** - **4 THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM 695 001.** WP(C) No.25712/2016 & conn.cases -: 6:- - **5 THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM DISTRICT 695 101.** - **6 THE ASSISTANT EDUCATIONAL OFFICER PANGODU, THIRUVANANTHAPURAM 695 004.** - **7 THE HEAD MASTER, KVUP SCHOOL, PANGODU 9PO), THIRUVANANTHAPURAM 695 004.** - **8 SRI. YAHIA.T., UPSA (NOT APPROVED), KVUP SCHOOL, PANGODU (PO), THIRUVANANTHAPURAM 695 O04.** - **9 SMT. JASMINE, UPSA (NOT APPROVED), KVUP SCHOOL, PANGODU (PO), THIRUVANANTHAPURAM 695 004.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 2-032020, ALONG WITH RP.226/2019, WA.1697/2019, WP(C).25712/2016(L), THE COURT ON 25-05-2020 DELIVERED THE FOLLOWING:** WP(C) No.25712/2016 & conn.cases -: 7:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WA.No.1697 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25712/2016(L) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 8 AND 9:** **1 SRI.YAHIA.T AGED 47 YEARS U.P.S.A. (NOT APPROVED), K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695601.** **2 SMT.JASMINE, U.P.S.A. (NOT APPROVED), K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695601.** **BY ADVS. SRI.P.K.MUHAMMED SRI.K.M.GEORGE** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 7:** **1 SREEJA.J.T PEON (OUT OF EMPLOYMENT FROM K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM DISTRICT), RESIDING AT SREEJA BHAVAN, MADATHIKUNNU, KILIMANOOR P.O., THIRUVANANTHAPURAM-695601.** **2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** WP(C) No.25712/2016 & conn.cases -: 8:- - **3 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** - **4 THE DEPUTY DIRECTOR (EDUCATION), THIRUVANANTHAPURAM-695001.** - **5 THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM DISTRICT-695001.** - **6 THE ASSISTANT EDUCATIONAL OFFICER, PANGODU, THIRUVANANTHAPURAM-695001.** - **7 THE MANAGER, K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695601.** - **8 THE HEAD MASTER, K.V.U.P.SCHOOL, PANGODU P.O., THIRUVANANTHAPURAM-695601.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 2-032020, ALONG WITH RP.226/2019, WA.1653/2019 & WP(C).25712/2016(L), THE COURT ON 25-05-2020 DELIVERED THE FOLLOWING:** WP(C) No.25712/2016 & conn.cases -: 9:- ## **J U D G M E N T** **[WP(C) No.25712/16, RP No.226/2019 in WP(C) No.25712/2016, WA Nos.1653 and 1697/2019** Dated this the 25[th] day of May, 2020 ## _**Shaffique, J.**_ The appeals arise from an interim order dated 14/1/2019 in W.P.(C)No.25712/2016. The review petition is filed seeking to review order dated 12/2/2019 in the same Writ Petition. When the above Writ Appeals came up for hearing, it was felt that the writ petition and all connected matters could be heard together. Accordingly by order dated 22/8/2019, all the connected cases are listed together. W.P.(C) No. 3718/2017 is filed by the Manager of the School and W.P.(C) No. 41396/2018 has been filed by the Teachers inter alia seeking for a direction to approve the appointment of the Teachers. Their approval is kept pending on account of the pendency of W.P.(C) No.25712/2016. However during the hearing, learned counsel for the petitioners in W.P.(C) No. 3718/2017 and W.P.(C) No. 41396/2018 sought for delinking WP(C) No.25712/2016 & conn.cases -: 10:- the case, so that those matters could be considered by the learned single judge after disposal of the above cases. 2. The short facts in W.P.(C) No.25712/2016, as borne out by the pleadings are as under and the parties are described as referred in W.P. (C) No. 25712 of 2016, unless otherwise stated. Petitioner Smt.Sreeja J.T. was appointed as a peon on compassionate grounds in an upper primary school managed by the 6[th] respondent from 8/11/2001 to 31/3/2003. It was a leave vacancy. Yet another vacancy arose in the said post and she was again appointed as peon on 5/8/2004. By that time, she had already joined for BEd course. Hence, after joining, she applied for study leave from 7/8/2004. According to her, the Manager did not forward the application for leave to the educational authorities and thereafter a memo of charges was issued to her alleging unauthorised absence. Though she submitted her explanation to the show cause notice, she was removed from service by an order passed by the Deputy Director of Education. She acquired the B.Ed qualification during April 2005. According to her, she became qualified for the post of UPSA and entitled for appointment in terms of Rule 51A of Chapter XIVA of Kerala WP(C) No.25712/2016 & conn.cases -: 11:- Education Rules (KER). Since she was terminated from service and she was not given appointment, she approached this Court by filing W.P.(C) No. 14285/2005 and this Court, by judgment dated 21/5/2012 allowed the writ petition, setting aside the disciplinary action against the petitioner and further directing that the petitioner has to be readmitted to duty and consequential directions were also issued. The Manager took up the matter in appeal as W.A. No. 1145/2012. The other incumbent in office as peon, who was appointed in the vacancy also filed an appeal as W.A. No. 1230/2012. The Division Bench having observed that the judgment of the learned single Judge cannot be sustained, issued modified directions as per judgment dated 16/7/2012. The directions at paragraph 3 of the said judgment, reads as under: _“3. After hearing separate counsel for the appellants, learned counsel for the 1 st respondent and also learned Government Pleader, we are unable to uphold the judgment of the learned Single Judge, which in our view is thoroughly unrealistic because subsequent developments defeated the claim of the 1 st respondent, is our feeling. On going through the judgment, what we notice is that the learned Single Judge has only found illegality in the procedure adopted in the enquiry and in the final termination order._ WP(C) No.25712/2016 & conn.cases -: 12:- _However, on merits, the 1 st respondent could not defend her action of abandoning the job on the following day after joining service while on probation. So much so, the only inference possible is irrespective of the consequences that follow the 1 st respondent wanted to pursue her studies and she, in fact, completed B.Ed and has probably become eligible to be appointed as a Teacher in the School. In our view, disciplinary proceedings or termination probably arises only when somebody in regular service is absent unauthorisedly, after being confirmed in service. If a person during probation abandoned the job or post without getting leave approved, it is a case of abandonment of job or at least failure to successfully complete probation, which entitles the Management to release such person from service and proceed to appoint another person, more so when the Peon's post is a single post which necessarily has to be filled up by a person willing to serve. However, since leave is permissible even during probation and since the experience of the School is that every Peon joining would have B.Ed. and later became Teacher of the School, we feel the 1 st respondent also could be given an opportunity but without affecting the person who is presently serving as regular Peon after confirmation, who is the appellant in W.A.No.1230/2012. Therefore, without going into the merits of the findings of the learned Single Judge, which are on procedural irregularity, we feel these Writ Appeals can be disposed of with direction to the Management, i.e. the appellant in W.A.No.1145/2012, to fill up the next Peon's post with the 1 st respondent, who is free to seek promotion in accordance with law as and when Teacher's post arises. We also make it clear that if Teacher's post falls vacant and_ WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** _by virtue of 51A claim the 1[st] respondent has, and if 51A has priority over appointment of Teachers from the Teacher's Bank, then the Manager should consider 1 st respondent's claim with reference to the relevant Rule based on meritorious service rendered before 2004. In fact, since the Manager is not allowed to make appointments on account of the availability of Teachers in the Teacher's Bank, we feel the AEO himself can direct the Manager for appointment of the 1[st] respondent as Teacher in the next arising vacancy.”_ 3. Petitioner places reliance upon the findings in the writ appeal judgment. According to her, two additional posts of UPSA had arisen in the School during the academic year 2013-2014 and two more additional post of UPSA, during the academic year 2014-15, But the Manager without complying with the directions of the Division Bench, appointed two persons viz. the 8[th] respondent on 19/6/2012, and the 9[th] respondent on 5/6/2012. She submitted complaint alleging denial of appointment. The Director of Public instructions by letter dated 14/7/2016 directed the District Educational Officer to consider the representation of the petitioner. But since no action was taken in the matter she had approached this Court by filing the above writ petition inter alia seeking for a declaration that she is entitled to be appointed as a peon or UPSA against the vacancy that had arisen after the WP(C) No.25712/2016 & conn.cases -: 14:- judgment in W.A.No.1145/2012. She also sought for a preferential claim in terms of Rule 51A of Chapter XIVA of KER, as against respondents 8 and 9. Petitioner also sought for a direction to the official respondents to take action against the Manager and disqualify him to be a Manager of the school. 4. The 6[th] respondent has filed counter affidavit inter alia stating that there was no positive direction in the judgment in W.A.No. 1145/2012 to appoint the petitioner as UPSA. Insofar as she has not worked as UPSA, she cannot claim benefit of Rule 51A. The amended provision which had come into effect on 17/6/2005 does not apply to the petitioner. He further stated that four vacancies of UPSA had arisen during the academic years 2013-14 and 2015-16 which were filled up by appointing respondents 8, 9 and two other persons. 5. By an interim order dated 31/8/2016, the Manager was directed to provisionally appoint the petitioner to the first vacancy of UPSA in the School. Though a challenge was made to the said interim order by filing Writ Appeal No. 1887/2016, the Division Bench did not interfere with the order, but permitted the 6[th] respondent to seek for correction, if there is any error in the WP(C) No.25712/2016 & conn.cases -: 15:- interim order. The 6[th] respondent filed an application I.A.No.19716/2016 seeking to modify the interim order dated 31/8/2016. The learned single Judge observed that since there was a specific direction in Ext.P2 judgment (W.A.No.1145/2012) to accommodate the petitioner as a teacher in the next arising vacancy, there was no mistake in the interim order dated 31/8/2016. R.P.No. 61/2018 was filed against the said order, which was dismissed on 2/2/2018. WA No. 812/2018 was filed by the Manager against the said order before the Division Bench, which was dismissed as per order dated 10/4/2018. The Division Bench observed that since the judgment in W.A.No.1145/2012 had become final, the contentions of the appellant cannot be considered and a contrary view cannot be taken. 6. During the pendency of the writ petition, Manager made a submission that he had forwarded the proposal to appoint the petitioner, to the Assistant Educational Officer. By order dated 10/12/2018, the learned single Judge directed the Assistant Educational Officer to approve the appointment of the petitioner and it was made clear that it would be subject to further orders to be passed. WP(C) No.25712/2016 & conn.cases -: 16:- 7. By yet another order dated 21/12/2018, learned single Judge, having observed that the Manager did not comply with the directions, issued instructions to the Registry to initiate contempt proceedings against him. 8. By an interim order dated 14/1/2019, the learned single Judge observed that there was non compliance of the directions issued earlier. It was observed that though by order dated 31/8/2016, direction was issued to appoint the petitioner provisionally, even after more than 2 years, the Manager did not comply with the said order which amounts to wilful disobedience. Hence contempt action has been taken against the Manager and he was placed under suspension. It was observed that the petitioner was entitled to salary from 1/9/2016 and the Manager had to be mulcted with such a liability. Hence it was directed to recover the salary due to the petitioner from 1/9/2016 from the Manager and it has to be paid to the petitioner. The AEO was directed to take necessary steps to recover the salary from the Manager. It was observed that the petitioner shall be given notional service benefits with effect from 4/6/2012. Order dated 14/1/2019 was also challenged by the Manager and the WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** Headmaster by filing Writ Appeal No.359/2019, which was withdrawn seeking permission to file the review. Later, the 6[th] respondent filed W.A.No.1653/2019 and respondents 8 and 9 filed W.A.No.1697/2019 challenging the interim order dated 14/1/2019. 9. When the petitioner complained that she was not paid her salary, having observed that the Headmaster was deliberately delaying payment to the petitioner, by order dated 12/2/2019, learned single Judge directed the AEO to withhold the salary of the Headmaster and to take action against him under Section 12A of the Kerala Education Act and to suspend him. Headmaster was also asked to appear in person to show cause why contempt action shall not be initiated against him. The said order came to be challenged by filing W.A.No.659/2019, which was disposed of permitting the petitioner to seek for review. R.P.No.226/2019 is filed by the Headmaster, seeking to review the order dated 12/2/2019. The Headmaster filed I.A.No. 2/2019 in the review petition seeking to modify the said order dated 12/2/2019. The learned single Judge thereafter modified it’s order dated 12/2/2019 by order dated 21/8/2019 and directed the WP(C) No.25712/2016 & conn.cases -: 18:- Headmaster to produce the service book of the petitioner before the AEO and on such production, the salary be released. 10. While hearing W.A.No.1653/2019 and W.A.No.1697/2019 challenging the interim order dated 14/1/2019, this court having considered the respective contentions directed that the writ petition and connected matters, that is W.P.(C) Nos.3718 of 2017 and 41396 of 2018 are to be heard along with the appeals. Paragraphs 9 to 11 of the order dated 22/8/2019 reads as under: _“9. The learned counsel for the first respondent would contend that when the first respondent had a claim to the post of Peon and there was also a possibility of promotion to the post of a Teacher, which post she was qualified to hold, the Manager ought not to have made any appointment of Teachers when the appeal was pending before the Division Bench. We, however, are not inclined to accept the said contention, since the adjustment of equities as made by the Division Bench on 16.7.2012 would not have been in the contemplation of either of the parties. We also do not agree with the first respondent that contemplating a situation of a promotion and the eligibility of the 51A claimant, the Teacher post should have been kept vacant in the UPSA School. However, we find that approval given by the AEO as on 4.6.2012 may not be perfectly in order. We notice this because this would prejudice the 9[th] respondent; who was appointed on 5.6.2012. Any orders passed by us will also have a cascading effect on the 8th respondent who was_ WP(C) No.25712/2016 & conn.cases ## -: 19:- _subsequently appointed on 19.6.2012 and also the subsequent appointees. It has already been noticed that the 5 teachers have filed writ petitions._ _10. Again, we have to notice that the first respondent was alleged to have slept over her rights between 2012 and 2016, the writ petition having been filed only in 2016. We cannot accept the same, especially since after 16.7.2012, a vacancy of a teacher arose in the School only on 1.7.2016. In fact, two vacancies arose, to which were appointed Sibina and Lisa. Immediately thereafter, the instant writ petition was filed and the petitioner also obtained an order dated 31.8.2016. This would necessarily indicate that prima facie there is contempt of the judgment of the Division Bench at Ext.P2 dated 16.7.2012, when a vacancy arose on 1.7.2016. The Manager in accordance with the judgment to which he conceded, ought to have appointed the first respondent. However such a direction if now made by us, it would also affect the two teachers appointed to the said post; Sibina and Lissa._ _11. In such circumstances, we are of the opinion that for a comprehensive consideration, the writ petitions filed by the teachers or the Manager for the approval of the 5 appointments made from 2012 onwards and the instant writ petition has to be heard together We, hence, call for the instant writ petition and W.P.(C) Nos.3718 of 2017 and 41396 of 2018”._ 11. We have however perused the Judge's papers in W.P.(C) Nos. 3718/2017 and 41396/2018. W.P.(C) No. 3718/2017 has been filed by the Manager of the school inter alia seeking for a direction to the Educational Authorities to approve the WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** appointment of four teachers as UPSA's. His contention is that Sri.Yahiya was appointed as UPSA in the school on 19/6/2012, Smt. Jasmine N. on 5/6/2012, Shibina S.N. and Lisa E.L. on 1/7/2016. According to him, as per the staff fixation order dated 8/4/2016, there were only four vacancies for UPSA, other than the Headmaster. Though separate representations were submitted for approval of the four teachers, since approval has not been granted, the writ petition is filed. 12. WP(C) No. 41396/2018 has been filed by 5 teachers of the above school. In addition to the four teachers mentioned above, Smt.Bhinumol L.S. also claims to be an UPSA. She is the 5[th] petitioner in the case and she claims that she was appointed as per order of appointment dated 11/12/2017. Petitioners 1 to 4 was not being considered due to the pendency of WP(C) No. 25172/2016. The 5[th] petitioner’s appointment has not been approved since the earlier appointments had not been approved and that there is non-compliance of Government order No. 199/2016 dated 3/12/2016. 13. The facts in the case would disclose that the petitioner claims right on the basis of the judgment in W.A.No.1145/2012, WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** which was rendered on 16/7/2012. The direction given in the said judgment was that the next Peon's post has to be filled up by appointing the petitioner and she was free to seek promotion in accordance with law, as and when Teacher’s post arises. It was also made clear that if Teacher's post falls vacant, by virtue of Rule 51A claim the petitioner has, the Manager should consider her claim with reference to the relevant Rule. 14. We heard the learned counsel appearing on either side. Learned senior counsel Sri.N.N.Sugunapalan, appearing on behalf of the Manager argued that, there was no vacancy of Peon and therefore she could not be accommodated. She was terminated from service, for unauthorized absence. The disciplinary proceedings was set aside only on 21/5/2012 as per judgment in W.P.(C)No.14285/2005. Aggrieved by the said judgment, Manager preferred an appeal as W.A.No.1145/2012, which was disposed only on 16/7/2012, modifying the judgment in W.P.(C)No.14285/2005 and issuing certain directions, which according to the Manager did not confirm her Rule 51A claim to the post of Teacher. The further argument is that the petitioner was fully aware that she was not entitled to be appointed as WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** UPSA and there was no vacancy in the Peon post. She waited till 21/7/2016 to file the writ petition and by that time all the four available vacancies of UPSA were filled up. 15. In the light of the contentions urged, what has to be considered is whether the petitioner is a claimant under Rule 51A of Chapter XIVA of KER. Petitioner’s claim was based on her approved service as a Peon from 8/11/2001 to 31/3/2003. As per Rule 7 of Chapter XXIVB of KER, rules relating to appointment etc. contained in Chapter XIVA _mutatis mutandis_ apply to non teaching staff as well. It is not in dispute that the petitioner had an approved service as a Peon in a leave vacancy in the aforesaid school, and she left the school for want of vacancy. Therefore, she becomes a claimant in terms of Rule 51A in a non-teaching staff post. 16. The contention urged by the 6[th] respondent is that the petitioner was a Peon when she left service on 31.3.2003 and hence she cannot claim the benefit of Rule 51A to become a Teacher, in a vacancy that occurred subsequently. With reference to the question relating to the claim made by the petitioner under Rule 51A, claiming the post of UPSA, an almost similar question WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** was considered by a Division Bench of this Court in an unreported judgment dated 28/9/2015 in _**The Manager, Rahmaniya High School v. Kunhabdulla A.P. And others**_ (WA Nos.786 and 790/2015). That was also a case in which a Full Time Contingent Menial (FTCM) who was working in a school in a leave vacancy for the period from 4/11/2009 to 29/10/2010, whose appointment was approved, made a claim for appointment to the post of a Teacher (HSA) which arose on 1/6/2011. The Division Bench held that since he was not a member of the non teaching staff as on the date of occurrence of the vacancy, he does not have any preferential right for appointment against the vacancy in a teaching post. Paragraphs 10 and 12 are relevant which reads as under:- _“10. Now it is necessary to have a look at Rule 51A of Chapter XIV A K.E.R in order to examine whether the 4[th] respondent who was a retrenched F.T.C.M can be considered as W.A Nos.786 and 790 of 2015 9 a 51A claimant eligible for appointment against a teaching post. Rule 51A reads as follows:_ ## _xxxxxx_ _“Thus it can be seen that preference is given to the qualified teachers who are relieved under Rule 49 or 52 for appointment to future vacancies that may arise in the same_ WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** _or higher or lower category of teaching post for which he is qualified. The service conditions of non teaching staff of aided schools, appointed after 1.10.1964 is governed by Chapter XXIVB K.E.R. Rule 7 thereof makes the provisions contained in Chapter XIVA K.E.R applicable to the non teaching staff, which reads as follows:_ _“7. The rules regarding appointment, transfer from one educational agency to another educational agency or transfer under the same educational agency, discipline, maintenance of service records confirmation, promotion, seniority, and maintenance of seniority list contained in Chapter XIV (A) and the Conduct Rules in Chapter XIV © applicable to teachers of aided school shall mutatis mutandis apply to the non-teaching staff in aided schools.”_ _When Rule 51A is imported to Chapter XXIV(B), the expressions “teacher” and “teaching post” will have to be read as “non teaching staff” and “non teaching post”. Then preference will be available to the retrenched non-teaching staff to the future vacancies of non-teaching posts only, in the same or higher or lower category of non teaching post for which he is qualified. The categories of non teaching posts in a school, as provided in Rule 2 of Chapter XXIV(A) K.E.R are (1) Clerk, (2) Attender, (3) Peons and (4) other members such as Sweepers and Watchers. Therefore the 4 th respondent, who was a F.T.C.M, cannot have any claim against the vacancy of a teaching post i.e H.S.A (S.S). The post of H.S.A (S.S) does not come under “same”, or “lower” or “higher” categories of the post in which he worked”._ _“12. The only provision in KER which makes the non teaching staff eligible for promotion to the post of teachers is Note 1 to_ WP(C) No.25712/2016 & conn.cases -: 25:- _Rule 1 of Chapter XIVA K.E.R, which reads as follows:_ _“Note:-(1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules.”_ _The 4th respondent cannot avail this benefit, firstly because there are eligible teachers for promotion/appointment; secondly because he was not a member of the non teaching staff at the time when vacancy arose. The benefit of Note 1 is available only if he is a member of the non teaching staff i.e who is currently on the rolls of the school, when the vacancy arose. Such a member of non-teaching staff becomes eligible for promotion only in the absence of teachers eligible for promotion. Therefore the 4[th] respondent could not have been appointed even under Rule 1 even assuming that the teachers like the petitioner had relinquished their claims. In the absence of a Rule 51A claimant, the only method of appointment available for filling up the vacancy was by promotion under Rule 43 of Chapter XIV A K.E.R.” xxxx_ 17. Therefore, under normal circumstances, the petitioner could have sought for promotion or appointment as a Teacher, only if vacancy had arisen while she was in employment, or else, she could only claim for a non-teaching staff post, in terms of Rule 51A. 18. Petitioner however justifies her right to claim the WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** benefit of Rule 51A as a Teacher based on the judgment of this court in W.A.No.1145/2012. The said judgment came to be delivered, with an intention to avoid termination of employment of a person who was appointed as a Peon for more than eight years. Further this court observed that every Peon in the School on acquiring B.Ed., later became a Teacher in the same School. Hence the appeal was disposed of with a direction to the Management, to fill up the next Peon's post with the petitioner, and it was further held that she was free to seek promotion in accordance with law as and when Teacher's post arises. It was also made clear that: “ _If the Teacher's post falls vacant and by virtue of 51A claim the 1[st] respondent has, and if 51A has priority over appointment of Teachers from the Teacher's Bank, then the Manager should consider 1[st] respondent's claim with reference to the relevant Rule based on meritorious service rendered before 2004.”_ 19. There is no doubt about the proposition that if the petitioner was posted as a Peon, in the next arising vacancy of a Teacher, if she was qualified she could have been promoted. Apparently, the Division Bench in W.A.No.1145/2012, wanted to WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** give the petitioner benefit of Rule 51A to claim the post of Teacher, taking into account, the overall facts and circumstances of the case and especially when her appointment was on compassionate grounds. Once the said judgment has become final, the Manager cannot take a different view. 20. The learned senior counsel Sri.N.N.Sugunapalan would argue that the Manager had a reasonable doubt regarding the directions in W.A.No.1145/2012, as the Manager proceeded on the basis that the petitioner ought to be appointed in the next arising vacancy of a Peon. It is in the said circumstances that appointments were made to the post of UPSA, even after the said judgment. 21. Of course the initial direction in W.A.No.1145/2012 was to appoint the petitioner in the next vacancy of Peon, and the petitioner was free to seek promotion in accordance with law as and when Teacher's post arises. The question of promotion would have arisen only after she was appointed and working in the post of Peon. Admittedly vacancy of Peon did not arise and she could not be appointed. Secondly it was made clear that if a Teacher's vacancy arises Manager should consider the Rule 51A claim of WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** the petitioner. If at all there was any ambiguity in the said direction, it was for the Manager to have sought for a clarification, and when the judgment has become final, it is not open for the Manager to shirk out from his responsibility and deny consideration of the petitioner's claim. 22. Therefore, when the petitioner is treated as a Rule 51A claimant for a Teacher's post, the Manager has no other option, other than to extent the said benefit to her. Viewed in that angle, the petitioner ought to have been appointed in the vacancy that has arisen after the judgment in W.A.No.1145/2012, that is after 16/7/2012. 23. Respondents 8 and 9 were appointed on 19/6/2012 and 5/6/2012 respectively. Rule 51A claim of the petitioner to the post of Teacher is accepted only on account of the directions in W.A.No.1145/2012, and not otherwise. Two vacancies were filled up before the said judgment. Therefore the appointment of respondents 8 and 9 shall not get affected on account of the claim raised by the petitioner. 24. Further, there is delay and laches on the part of the petitioner in approaching this court. The writ petition was filed WP(C) No.25712/2016 & conn.cases -: 29:- only on 21/7/2016. Of course it could be said that the Manager has not offered her the benefit of Rule 51A. But there is nothing on record to indicate that the Manager was aware of her qualification. In the writ petition an interim order was passed on 31/8/2016 to appoint the petitioner, in which event, petitioner can stake a claim only with reference to a vacancy that existed on or after 31/8/2016, and to that extent the writ petition is to be allowed. 25. Consequently, we are of the view that the appointment of respondents 8 and 9, shall in no way be subject to the claim of the petitioner. 26. The petitioner's qualification to the post of UPSA is also questioned. The petitioner having B.Ed was indeed qualified to be appointed as UPSA going by the qualification as prescribed in the KER. The private respondents places reliance on G.O.(P) No.70/12/G.Edn. dated 1/3/2012 to contend that the petitioner does not possess the mandatory Teachers Eligibility Test, which is conducted by the State as KTET. The notification came to be issued in the light of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as the WP(C) No.25712/2016 & conn.cases -: 30:- RTE Act) and as specified by the National Council for Teacher Education. 27. Section 23 of the RTE Act as amended with effect from 1/4/2015 reads as under: _“_ _**23. Qualifications for appointment and terms and conditions of service of teachers** :- (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher._ _(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under subsection (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:_ _Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years:_ _Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment)_ WP(C) No.25712/2016 & conn.cases ## -: 31:- _Act, 2017._ _(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.”_ ## 29. Notification dated 1/3/2012 reads as under: ## _**“ORDER**_ _In accordance with the provisions of sub section (1) of section 23 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, the National Council for Teacher Education (NCTE) has laid down the minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII vide its Notifications read as 1[st] and 2[nd] paper above. One of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teachers Eligibility Test (TET) which will be conducted by the appropriate Government._ _As per the Kerala Right of Children to Free and Compulsory Education Rules 2011 notified vide Government Order read as 3[rd] paper above, Academic Authority means the State Council for Educational Rescarch and Training, Thiruvananthapuram (SCERT) and Government have the academic responsibility to ensure that a teacher appointed should possess the minimum qualification for teachers. As per the Government Order read as 4[th] paper above, Government have interalia decided to make TET mandatory for the appointment of all teachers in Lower Primary, Upper Primary and High Schools. Accordingly all teachers in schools should possess the minimum qualifications including Teachers Eligibility Test (TET) based on the norms and standards laid_ WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** _down by the NCTE. SCERT is the authorized academic authority in the state._ _In the above circumstances, Government are pleased to entrust State Council for Educational Research and Training, Thiruvananthapuram (SCERT) for conducting Teachers Eligibility Test (TET) in the state. The SCERT will conduct the test in accordance with the guidelines prescribed by the NCTE, Government of India. The Director, SCERT is directed take urgent action for the conduct of the test from the Academic year 2012-13 onwards”._ 28. Two judgments have been cited at the Bar in order to substantiate the contention that TET prescribed by National Council for Teacher Education is a mandatory qualification. In WP(C) No. 346238/2017 and connected cases, by judgment dated 22/2/2018 **(** _**Anumary P.K. and Others v. Union of India and Others**_ **)** , learned Single Judge having placed reliance on the judgment dated 18/12/2017 in WP(C) No. 5966/2012, held as under: _“ With regard to the contention raised to the effect that the petitioners who had completed the B.Ed, TTC or equivalent courses as on the date on which Section 12A became operative would not be affected by the prescription of the TET/KTET qualifications, I am of the opinion that the said contention is completely unsustainable. The K-TET/TET is an independent qualification prescribed for appointment as a teacher. The prescription of the said qualification is not_ WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** _dependent on the date on which the petitioners acquired any other qualification. From and with effect from the date of prescription of qualification the TET is a required qualification for appointment to the post of teacher subject to any extension of time granted by the State Government, which orders are not the subject matter of these writ petitions”._ 29. In the judgment in _**K.Beena v. State of Kerala and Others**_ (2018 (1) KLT 779), one of the questions considered was whether TET is an essential qualification for being appointed to the post of UPSA. After referring to the provisions of RTE Act and the National Council for Teacher Education Act, it is held as follows:- _“7. When the qualification viz. pass in K.TET is prescribed under Section 23 of the RTE Act 2009 read with Section 12(d) and 12A of the NCTE Act, both central enactments, absence of such provision in the State enactment is absolutely irrelevant. If there is any repugnancy between the State and Central legislation, the Central Act will prevail._ _8. The learned Counsel for the petitioner pointed out that the order Ext.P3 - the teachers package, was set aside by this Court and that the introduction of K.TET was also included in that Government order dated 01.10.2011, popularly known as teachers package._ _9. However, the subsequent orders or the notifications issued by the NCTE are not set aside so far. At any rate, while setting aside the teachers package the provisions contained in the central enactments were not considered. Moreover, the_ WP(C) No.25712/2016 & conn.cases -: 34:- _Apex Court has in its judgment dated 25.07.2017 in State of U.P v. Anand Kumar Yadav [(2017) 8 SCALE 220] has considered the validity of the relaxation granted by the State of U.P W.P(C) No.28679 of 2012 5 for recruitment of teachers, by way of amendment to the rules governing the recruitment of teachers as well as the UP RTE Rules giving permission for appointment of Shiksha Mitras in the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of RTE Act, 2009. One of the issues which was considered in the case was: whether statutory qualifications in a Central Statute on a concurrent list subject could be relaxed by a State legislative/ administrative action._ _10. In paragraph 18 and 19 of the judgment, the Apex Court approved the findings of the Full Bench of the High Court of Allahabad as follows:_ _“18. In the impugned judgment the Full Bench of the High Court highlighted the importance of the prescribed TET qualification as follows:_ _“93. The object and purpose of introducing the TET is to ensure that a teacher who embarks upon instructing students of primary and upper primary classes is duly equipped to fulfill the needs of the students, understands the relevance of education for a child at that stage and can contribute to the well rounded development of the child. Teaching a child is not merely a matter of providing information. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the TET is to ensure the maintenance of quality in imparting primary education. These requirements which have_ WP(C) No.25712/2016 & conn.cases -: 35:- _been laid down by NCTE fulfill an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment. These norms are intended to fulfill and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. The effort of the State Government to bypass well considered norms which are laid down by NCTE must be disapproved by the Court. We have done so on the ground that the State Government lacks the legislative power and competence to do so. Equally, fundamental is the concern that a relaxation of the norms prescribed by an expert body will result in grave detriment to the development and growth of our young children and the provision of quality education to them. Providing quality education is crucial for students belonging to every strata of society. Education which is provided in schools conducted by the Basic Education Board should not be allowed to degenerate into education of poor quality which it will, if the norms which are prescribed by an expert body under legislation enacted by Parliament in the national interest are allowed to be ignored by the State Government on the basis of parochial or populist perceptions. Such an attempt is ultra vires the statutory powers of the State and is arbitrary and violative of Article 14 of the Constitution.”_ _19. We are in agreement with the above observations. We are unable to agree that even unqualified teachers ought to be allowed to continue ignoring the legislative mandate or that we should exercise our jurisdiction under Article 142 to undo the_ WP(C) No.25712/2016 & conn.cases ## -: 36:- ## _said mandate._ _The apex court approved the judgment of the Full Bench, which in paragraph 80 held as follows:_ _80. What has happened in the State of Uttar Pradesh is that the State Government, in a clear violation of the mandate of Section 23(2) which vests the power to relax the minimum qualifications in the Central Government, has arrogated to itself a power which it lacks, to grant exemption from the mandatory qualifications which are laid down by NCTE in their application to Shiksha Mitras in the State. The State Government has, in our view, acted in clear violation of its statutory powers. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government. However, Rule 16-A which has been introduced by the State Government by a notification dated 30 May 2014 purports to provide a nonobstante provision which will operate notwithstanding anything contained in Rules 15 and 16 of the State Rules. Rules 15 and 16 of the State Rules were originally formulated in a manner consistent with the provisions of Section 23(2) and the provisions contained in Rules 17 and 18 of the Central Rules of 2010. However, as a result of the introduction of Rule 16-A, the State Government has assumed to itself the power to make provisions for relaxing the minimum educational qualifications for appointment of Shiksha Mitras as Assistant Teachers in junior basic schools "as are considered otherwise eligible and in order to implement the provisions of the Act". There can be no manner of doubt that far from implementing the provisions of the Act, the State Government by its amendment of the subordinate legislation has purported to negate the very object and purpose of the RTE Act of 2009.”_ WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** _11. Yet another contention of the petitioner is that claimants under 51A and 51B are granted exemption. The judgment supra would show that NCTE alone is having the power to relax, that too, strictly within the provisions of the RTE Act 2009 and NCTE Act. The exemption granted to claimants under 51A or 51B is not under challenge. It is also not clear how exemption is granted. Anyway if at all the said exemption is not as per rules that will not help the petitioner. The judgments of this Court and the Apex Court relied on by the petitioner in the writ petition were rendered in entirely different circumstances and hence are not applicable to the present case. The pass in K.TET is therefore mandatory. State Government does not have any power to dilute the qualifications prescribed by the authorities under the central enactment. In this writ petition, no other contention is raised. Moreover, it is pointed out that the Central Government has already extended the time limit for acquiring the qualification till 2019._ _In the above circumstances, the claims raised by the petitioner are absolutely unsustainable. When the Central Act has provided for the qualification for a teacher, within the legislative competence, it is not necessary to amend the Kerala Education Rules, as provision under the Central Act, will prevail over State legislation. Executive orders are sufficient to introduce such qualifications. Therefore, there is no illegality in the orders issued by the Government insisting K-TET as a qualification for appointment of teachers. The writ petition is dismissed accordingly”._ 30. In the light of the above judgments it is rather clear that KTET is a mandatory qualification for the post of UPSA. But WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** such a contention was urged only at the time when the case was argued. That apart, it is mentioned in the judgment in _**K.Beena's case**_ (supra) that the Central Government has already extended the time limit for acquiring the qualification till 2019. Further, the Education Department, by it's order No.194/2019 dated 15/11/2019 has extended the time for acquiring the qualification until the end of academic year 20202021. 31. It is not in dispute that the petitioner holds B.Ed. Degree. It is not known whether she has the qualification of KTET. Even if she does not have the said qualification, still if her appointment is made on an earlier date, she can avail of the exemption granted to like persons until 2020-2021. It is for educational authorities to look into such matters before approving her appointment. 32. On the basis of interim order passed by this Court on 21/12/2017, the AEO issued an order dated 27/12/2018 appointing the petitioner as UPSA in the first vacancy that had arisen in the academic year 2012-13 w.e.f. 4/6/2012. In the light of the aforesaid discussion, the petitioner is not entitled to get WP(C) No.25712/2016 & conn.cases -: 39:- her appointment effective from 4/6/2012 and she can be accommodated only if a vacancy existed as on 31/8/2016 or in the next arising vacancy. 33. Writ appeals have been filed challenging the interim order dated 14/1/2019. In the said interim order, this Court observed that since the Manager did not comply with the interim order dated 31/8/2016, he is under obligation to pay the petitioner her salary from 1/9/2016 which is to be collected from the Manager who was under suspension. Further, it was observed that the petitioner shall be given notional service benefits w.e.f. 4/6/2012. We have already held that the petitioner cannot have any claim to be appointed prior to the appointment of respondents 8 and 9 and she could be appointed only in a vacancy that existed as on 31/8/2016 or thereafter. 34. In an earlier order dated 21/12/2018, the learned Single Judge took note of the interim order passed on 31/8/2016 and yet another order passed on 10/12/2018. Having observed that the Manager did not intend to obey the directions, he was directed to be suspended and the AEO was directed to submit the proposal to approve the appointment of the petitioner. Pursuant WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** to the said order, Manager was suspended. 35. It is apparent that though there was a direction by the Court to provisionally appoint the petitioner as per order dated 31/8/2016, the Manager has appointed yet another person on 11/12/2017. Therefore, there is justification on the part of the learned Single Judge in directing that the salary due to the petitioner has to be recovered from the Manager and paid to the petitioner. We would only like to further clarify that the said obligation shall rest with the Manager who is under suspension only from 1/9/2016 or on the date when the vacancy had arisen, which ever is later. Consequently, the petitioner is not entitled for any notional service benefits from 4/6/2012, whereas she is entitled for actual benefits only from the date on which she has taken charge in terms of the order of appointment dated 27/12/2018 and she will also be entitled receive as compensation the salary to be recovered from the Manager who is under suspension, from the date when the vacancy had arisen on or after 31/8/2016. 36. Review Petition has been filed seeking to review the order dated 12/2/2019. By the said order, direction had been WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** issued by the learned single Judge to the AEO to take action against the Headmaster under Section 12A of the Kerala Education Act and to suspend him forthwith. This order came to be passed since the court proceeded on the basis that the Headmaster was instrumental in ensuring that the petitioner does not receive her salary. The above order has since been modified by the learned Single Judge as per order dated 21/8/2019 in IA No.2/2019 in RP No.226/2019 and the Headmaster was directed to produce the service book of the petitioner before the AEO and on production of such service book, direction had been given to release the salary arrears of the Headmaster. We do not think that the non appointment of the petitioner on any date after 31/8/2016 is on account of any negligence on the part of Headmaster. The appointment of the petitioner itself was provisional and payment of salary would depend upon various factors. The Headmaster has pointed out that delay had occurred in getting the amount credited in the account as she had given a wrong account number and she did not comply with the procedural formalities for which the Headmaster is not responsible. According to him, the learned Government Pleader's WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** submission on 12/2/2019 that the Headmaster furnished his account number to the Treasury Savings Bank was incorrect. Having regard to the aforesaid factual situation and the fact that her salary was duly credited in her account subsequently, we are of the view that there is no necessity to take any further action against the Headmaster. Therefore, the interim order dated 12/2/2019 shall stand recalled. In the result, these cases are disposed of as under:- (i) WP(C) No. 25712/2016:- Petitioner's appointment as per order dated 27/12/2018, of AEO shall be treated as provisional. Her appointment shall be approved either on 1/9/2016 if there existed a vacancy in the school as on 31/8/2016 or on such other date when the vacancy had arisen, subject to her acquiring the qualification of KTET as per the procedure prescribed. Petitioner shall be entitled for salary only from the date of joining. The Manager who is already under suspension shall be liable to pay the eligible salary of the petitioner either from 1/9/2016, if there existed a vacancy as on 31/8/2016 or from a future date when the vacancy had arisen. The said amount shall be recovered by the AEO and paid to the petitioner. Manager's WP(C) No.25712/2016 & conn.cases **==> picture [31 x 9] intentionally omitted <==** suspension shall stand revoked on payment of the above amount. (ii) RP No.226/2019:- Review Petition is allowed and the interim order dated 12/2/2019 is recalled. (iii) WA Nos.1653/19 an 1697/2019:- Writ appeals are allowed modifying the interim order and they are disposed of in the light of the judgment in WP(C) No. 25712/2016. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/V.G.ARUN** Rp True Copy **JUDGE** PS to Judge WP(C) No.25712/2016 & conn.cases -: 44:- ## **APPENDIX OF WP(C) 25712/2016** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE JUDGMENT DT. 21/5/2012 IN WPC NO.14285/2005 (A) OF THE HON'BLE HIGH COURT OF KERALA** **EXHIBIT P2** **TRUE COPY OF THE JUDGMENT DT. 16/7/2012 IN W.A NO.1145/2012 IN WPC NO.1230/2012 BY THE HON'BLE HIGH COURT OF KERALA** **EXHIBIT P3** **TRUE COPY OF THE STAFF FIXATION ORDERS FOR THE ACADEMIC YEAR 2013-14 DT. 16/5/2014 IN RESPECT OF THE 6TH RESPONDENT'S SCHOOL** - **EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER DT. 25/4/2016** **EXHIBIT P5** **TRUE COPY OF THE ORDER NO.B(4)/9659/2016 DT. 14/7/2016 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS TO THE DISTRICT EDUCATIONAL OFFICER, PALODU.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DT. 27/6/2016** - **EXHIBIT P7 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT ON 10/5/2016** **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ON 19/7/2016** **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION ISSUED BY THE SENIOR SUPERINTENDENT OF THE OFFICE OF THE 4TH RESPONDENT AS PER LETTER NO.C/1789/2005 DATED 3/8/2015 TO THE 6TH RESPONDENT** WP(C) No.25712/2016 & conn.cases -: 45:- **EXHIBIT P6 (A)** **TRUE COPY OF THE JUDGMENT IN WPC NO.20290/2016 DATED 14/06/2016.** **EXHIBIT P6 (B) TRUE COPY OF THE JUDGMENT DATED 06/09/2016 IN WPC NO.29658/2016. EXHIBIT P6 (C) TRUE COPY OF THE JUDGMENT DATED 01/11/2016 IN WA NO.1887/2018.** **EXHIBIT P10 TRUE COPY OF THE LETTER NO.32/2018 DATED 07/11/2018. EXHIBIT P11 TRUE COPY OF THE LETTER NO.32/2018 DATED 07/11/2018. EXHIBIT P12 TRUE COPY OF THE ORDER NO.C/3515/2018/K. DIS DATED 27/12/2018 ISSUED BY THE AEO. EXHIBIT P13 TRUE COPY OF THE GO(RT)NO. 788/2016/G.EDN. DATED 25/02/2016. EXHIBIT P14 TRUE COPY OF THE LETTER NO. C/861/2016 DATED 02/05/2016 OF THE 5TH RESPONDENT. EXHIBIT P15 TRUE COPY OF THE LETTER NO.C/1789/2005 DATED 17/06/2016 OF THE 5TH RESPONDENT.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R6(A) TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 20/12/2018 ISSUED TO THE PETITIONER IN THE ABOVE WRIT PETITION. EXHIBIT R6(D) TRUE COPY OF THE JUDGMENT IN WPC NO.14285/2005 DATED 21/05/2012. EXHIBIT R6(E) TRUE COPY OF THE JUDGMENT DATED 16/07/2012 IN WA NO.1145/2012. EXHIBIT R6(F) TRUE COPY OF THE APPOINTMENT ORDER DATED 05/06/2012 ISSUED TO JASMIN N.** -: 46:- WP(C) No.25712/2016 & conn.cases **EXHIBIT R6(G) TRUE COPY OF THE JOINING REPORT OF THE 9TH RESPONDENT DATED 13/12/2018. EXHIBIT R6(H) TRUE COPY OF THE APPOINTMENT ORDER DATED 19/06/2012 ISSUED TO YAHIYA A. EXHIBIT R6(I) TRUE COPY OF THE JOINING REPORT OF THE 8TH RESPONDENT DATED 13/12/2018. EXHIBIT R6(J) TRUE COPY OF THE APPOINTMENT ORDER DATED 01/07/2016 ISSUED TO SHIBINA S.N. EXHIBIT R6(K) TRUE COPY OF THE JOINING REPORT OF SHIBINA S.N. DATED 13/12/2018. EXHIBIT R6(L) TRUE COPY OF THE APPOINTMENT ORDER DTED 01/07/2016 ISSUED TO LISA E.L. EXHIBIT R6(M) TRUE COPY OF THE JOINING REPORT OF LISA E.L. DATED 13/12/2018. EXHIBIT R6(N) TRUE COPY OF THE APPOINTMENT ORDER DATED 11/12/2017 ISSUED TO BHINUMOL S. EXHIBIT R6(O) TRUE COPY OF THE JOINING REPORT OF SMT. BHINUMOL S. DATED 13/11/2018. EXHIBIT R6(P) TRUE COPY OF THE ORDER IN SLP NO.31545/2018 DATED 01/10/2018 OF THE HON'BLE SUPREME COURT OF INDIA.** **EXHIBIT R6(Q) TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO SREEJA J.T. DATED 07/11/2018. EXHIBIT R6(R) TRUE COPY OF THE FORWARDING LETTER ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT DATED 15/11/2018. EXHIBIT R6(S) TRUE COPY OF THE LETTER DATED 06/12/2018 TO THE 7TH RESPONDENT HEADMASTER.** WP(C) No.25712/2016 & conn.cases -: 47:- **EXHIBIT R6(T)** **TRUE COPY OF THE PROVISIONAL ATTENDANCE REGISTER.** - **EXHIBIT R6(U) TRUE COPY OF THE JOINING REPORT ACKNOWLEDGED BY THE 5TH RESPONDENT.** - **EXHIBIT R6(V) TRUE COPY OF THE RELEVANT RECORDS SHOWING THAT HE HAD TAKEN STEPS FOR THE DISBURSEMENT OF HER SALARY.** - **EXHIBIT R6(W) TRUE COPY OF THE ORDER DATED 27/12/2018 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, PALODE.** - **EXHIBIT R7(A) TRUE COPY OF THE LETTER ADDRESSED TO THE 5TH RESPONDENT BY THE 7TH RESPONDENT TO RETURN OF THE SERVICE BOOK OF THE WRIT PETITION.** - **EXHIBIT R7(B) TRUE COPY OF THE ACKNOWLEDGMENT OF THE RECEIPT OF THE SERVICE BOOK RETURNED BY THE 5TH RESPONDENT ON 27/02/2019.** - **EXHIBIT R7(C) TRUE COPY OF THE ENTRY OF THE DETAILS OF FIRST APPOINTMENT IN THE SERVICE BOOK OF THE WRIT PETITIONER MADE BY THE 5TH RESPONDENT.** **EXHIBIT R7(D)** - **TRUE COPY OF THE ENTRY OF THE HISTORY AND VERIFICATION OF SERVICE IN THE SERVICE BOOK OF THE WRIT PETITIONER MADE BY THE 5TH RESPONDENT.** - **EXHIBIT R7 (E)** - **TRUE COPY OF THE SALARY BILL OF SREEJA J.T. FROM THE MONTH OF FEBRUARY IS GENERATED FROM THE SPARK.** - **EXHIBIT R5 NIL.** - **EXHIBIT R5(B) A TRUE COPY OF THE LETTER DATED 02/02/2019.** WP(C) No.25712/2016 & conn.cases -: 48:- **EXHIBIT R5(C) A TRUE COPY OF THE LETTER DATED 14/02/2019.** **EXHIBIT R5(D) A TRUE COPY OF THE LETTER DATED 14/03/2019.** **EXHIBIT R5(E) A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 27/03/2019** **EXHIBIT R7(F) TRUE COPY OF THE ATTENDANCE REGISTER DULY SIGNED BY THE PETITIONER ON 21/12/2018, BOTH FN AND AN.** **EXHIBIT R7(G) TRUE COPY OF THE JOINING REPORT OF THE PETITIONER, ACKNOWLEDGED BY THE 5TH RESPONDENT.** **EXHIBIT R6(X) TRUE COPY OF THE JUDGMENT IN CONT. CASE (C) NO.1505/2018 DATED 03/04/2019.** WP(C) No.25712/2016 & conn.cases -: 49:- ## **APPENDIX OF RP 226/2019** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF THE FIRST PAGE OF THE BANK PASS BOOK OF THE 1ST RESPONDENT SREEJA J.T. BEARING ACCOUNT NUMBER 3475101001678 OF THE CANARA BANK KILIMANOOR BRANCH, THIRUVANANTHAPURAM** ## **ANNEXURE II** **TRUE COPY OF THE SPARK BILL GENERATED FOR THE 1ST RESPONDENT** **ANNEXURE III TRUE COPY OF THE RELEVANT EXTRACT OF THE TREASURY BILL BOOK WHICH SHOW THAT AN AMOUNT OF RS.40218/- DUE TO THE 1ST RESPONDENT IS CREDITED INTO THE TSB ACCOUNT OF THE KVUPS SCHOOL.** **ANNEXURE IV TRUE COPY OF THE LETTER DATED 12.2.2019 SUBMITTED BY THE APPELLANT BEFORE THE STO RELATING TO THE NON-CREDIT OF SALARY OF THE 1ST RESPONDENT INTO HER ACCOUNT ALONG WITH THE ENDORSEMENT OF THE STO.** **ANNEXURE V TRUE COPY OF THE LETTER OF THE APPELLANT ADDRESSED TO THE STO, KILIMANOOR, DATED 13.2.2019TO RELEASE THE AMOUNT OF RS.40,218/- FROM THE STSB-78ACCOUNT ANDTO PAY THE 1ST RESPONDENT THE AMOUNT THROUGH TSB CHEQUE ISSUED BY HIM.** ## **ANNEXURE VI** **TRUE COPY OF THE ORDER NO.1789/2005 DATED 13.2.2019 OF THE AEO, ISSUED IN PURSUANCE OF THE INTERIM ORDER OF THE COURT SUSPENDING THE APPELLANT AS HEAD MASTER.** ## **ANNEXURE VII** **TRUE COPY OF THE E-MAIL SENT BY AEO, PALODE TO THE TREASURY OFFICER, KILIMANOOR.** WP(C) No.25712/2016 & conn.cases -: 50:- ## **RESPONDENT'S EXHIBITS:** **ANNEXURE R1(A) TRUE COPY OF THE ORDER NO. F1/90121/2018/DPI DATED 09/04/2019 ISSUED BY THE ADDITIONAL DIRECTOR (ACADEMIC). ANNEXURE R1(B) TRUE COPY OF THE STATEMENT OF ARREARS CALCULATION FOR THE PERIOD FROM 01/09/2016.**