State of Kerala and Others v. K. Mohammed (Retired Assistant Professor) and SCERT

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938 WA.No. 2539 of 2015 IN WP(C).34346/2009 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 34346/2009 of HIGH COURT OF KERALA DATED 21-10-2014 ---------- APPELLANTS/RESPONDENT NO.1,3,4 &5 IN WPC: ------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HIGHER SECONDARY EDUCATION OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM 4. ACCOUNTANT GENERAL (A & E) THIRUVANANTHAPURAM BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL ## RESPONDENTS/PETITIONER AND RESPONDENTS NO.2 IN WPC: --------------------------------------------------------------------- 1. K. MOHAMMED RETIRED ASSISTANT PROFESSOR, STATE COUNCIL OF EDUCATIONAL RESEARCH AND, TRAINING (SCERT) THIRUVANANTHAPURAM ,NOW RESIDING AT MAKKALIKKAL HOUSE P.O. AYIROOR, VIA, PERUMPADAPPU MALAPPPURAM DISTRICT. 679580. 2. THE STATE COUNCIL OF EDUCATION RESEARCH AND TRAINING (SCERT) REPRESENTED BY ITS DIRECTOR, VIDYA BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM 695001 R1 BY ADV. SRI.B.UNNIKRISHNA KAIMAL R2 BY ADV. SRI.P.C.SASIDHARAN, SC, STATE COUNCIL OF EDUCATIONAL RESEARC R1 BY ADV. SRI.BRIJESH MOHAN R1 BY ADV. SMT.RESMI G. NAIR R BY SRI.M.K.CHANDRA MOHANDAS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V., JJ.** -----------------------------------------------W. A. No.2539 of 2015 -----------------------------------------------Dated this the 21[st] day of October, 2016 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aThis appeal arises from the judgment of the learned single Judge in W.P.(C) No.34346 of 2009. The first respondent filed the writ petition, contending that he joined the General Education Department as UPSA (Arabic) on 30.07.1977. He was granted promotion as HSA with effect from 15.06.1984. While the first respondent was continuing as HSA, the second respondent issued Notification dated 24.05.2000 inviting applications for direct recruitment to the post of Research Officer (Arabic). Responding to the Notification, the first respondent submitted his application; appeared for the interview; and got selected. Accordingly, he was appointed and he joined duty on 18.08.2000. 2. Subsequently, both the first respondent and the W. A. No.2539 of 2015 -2- second respondent requested to the Government to treat the appointment of the first respondent on direct recruitment as on deputation. This culminated in Ext.P10 Government Order dated 20.05.2003, whereby it was ordered to treat the appointment of the first respondent as on deputation till the finalisation of the Special Rules or five years whichever is earlier. 3. While continuing on deputation, by Ext.P11 order, the first respondent was promoted as HSST (Arabic) and was posted to the Government Higher Secondary School, Varavoor in Thrissur District. However, he did not join duty and as a result, insofar as the General Education Department is concerned, he was continued to be treated as an HSA. While so, Ext.P12 order was issued by the second respondent on 25.04.2004, promoting the first respondent as Assistant Professor (Arabic). Later on expiry of the initial period of five years of deputation, Government issued Ext.P15 order extending the deputation of the first W. A. No.2539 of 2015 -3- respondent till finalisation of the Special Rules or his retirement, whichever is earlier. He continued on deputation; attained the age of superannuation; and retired from service on 31.10.2008. Thereafter, his terminal benefits were settled treating him as HSA (Arabic). 4. Thereafter, representations were made by him claiming the benefit of promotion as HSST (Junior) and also as HSST and to give him the consequential terminal benefits. There was no response from the Government, which made him to file the writ petition with the following prayers: - “ i. a writ of mandamus to the 1[st] Respondent to reconsider Ext.P-14 to issue orders in the matter of scale of pay. - ii.a writ of mandamus to respondents 1 and 2 to grant pay in the post of Research Officer till 25.05.2004 in the scale of Rs.2200-4000 and pay in the scale of Rs.3000-5000 from 25.05.2004 to 31.10.2008 and to disburse arrears of salary due to the petitioner. - iii.a writ of mandamus to the 4[th] respondent to fix the pay of the petitioner in the scale of pay of W. A. No.2539 of 2015 -4- HSST (Junior) on 01.8.2003 and in the scale of pay of HSST with effect from the eligible date of promotion and to forward the pay fixation statement for the period till 31.10.2008 to the 2[nd] respondent. - iv.a writ of mandamus to the 2[nd] respondent to disburse arrears of salary due to the petitioner for the period from 1.8.2003 to 31.10.2008 on the basis of pay fixation statement to be forwarded by the 4[th] respondent. - v.a writ of mandamus to the 5[th] respondent to refix the pensionary benefits due to the petitioner and to issue necessary authorization/orders for disbursement of the amounts less the amounts already paid. - vi.a writ of mandamus to the 1[st] respondent to consider and pass orders on Ext.P17 representation. - and - vii.such other writ order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 5. By the judgment under appeal, the learned single Judge allowed the writ petition and directed the appellants to effect re-fixation of his salary and re-computation of monthly pension and also to grant him all terminal benefits -5- W. A. No.2539 of 2015 on that basis. It is also seen that his entitlement to be given, revised pay and other benefits based on his promotion as HSST (Junior), has also been declared. It is aggrieved by this judgment, this appeal is filed. 6. We heard the learned Government Pleader appearing for the appellants, the learned counsel appearing for the first respondent and the learned Standing Counsel appearing for the second respondent. 7. While according to the learned Government Pleader, having regard to the fact that the first respondent did not join the post of HSST (Arabic) in the Higher Secondary Education Department, the Government had to treat him as an HSA (Arabic), in the General Education Department. It is stated that it was on that basis his terminal benefits were settled. According to him, therefore, the first respondent could not have claimed anything more than what was given -6- W. A. No.2539 of 2015 to him. On this basis, the learned Government Pleader contended that the learned single Judge erred in issuing the aforesaid directions. On the other hand, the learned counsel for the first respondent referred us to Rule 8 of Part II KS&SSR and also the Full Bench Judgment of this Court in **Balakrishnan Nair v. Ram Mohan Nair [1998 (1) KLT 766]** upheld by the Apex Court in **Ali v. State of Kerala [2003 (2) KLT 922]** . He further contended that till his retirement, the first respondent had retained his lien in the parent department. According to him, therefore, having regard to the provisions of Rule 8 of Part II KS&SSR, the first respondent was entitled to promotions as if he had continued throughout in the parent department. Therefore, counsel contended that he was entitled to the terminal benefits as if he was promoted as HSST (Junior) and later as HSST. -7- W. A. No.2539 of 2015 8. We have considered the submissions made before us. It is true that so long as the first respondent's lien in the parent department was not terminated, he had retained lien in that department. Further having regard to the provisions of Rule 8 of Part II KS&SSR and as his lien was retained in the parent department, he was entitled to have been considered for promotion in the parent department, even during the deputation period ignoring his absence. Though the general legal position is as above, insofar as this particular case is concerned, as we have already seen that the first respondent had responded to a Notification issued by the second respondent for an appointment on direct recruitment and it was on that basis he submitted his application; appeared in the selection process; secured the appointment and joined the post. It appears that subsequently wisdom dawned on the first respondent and -8- W. A. No.2539 of 2015 on that basis he and the second respondent are stated to have made representations to treat his appointment on direct recruitment as on deputation. Though this was an inadmissible request, it was accepted by the Government and by Ext.P10, he was allowed to be on deputation for a period of five years or till finalisation of the Special Rules whichever is earlier. We also find that on expiry of the deputation period specified in Ext.P10, the deputation was extended by Ext.P15 and it was on that basis he continued in the service of the second respondent till his retirement on 31.10.2008. 9. In the meanwhile, in the parent department he was promoted by Ext.P11 as HSST (Junior). A reading of Ext.P11 order dated 01.08.2003 issued by the Director of Higher Secondary Education, shows that the said order was issued based on the requests received from the teachers concerned and by this order, 12 teachers including the first respondent -9- W. A. No.2539 of 2015 were “directed to join duty within 5 days on receipt of this communication”. It was also ordered that “the Principals concerned are requested to take necessary action and report compliance”. Admittedly, in compliance with Ext.P11, the first respondent did not join duty as HSST (Junior). It may be true that being on deputation, he may have had his own problems in getting relieved from the borrowing department. However, if he wanted to enjoy the benefit of Ext.P11, whereby he was promoted and posted as HSST (Junior), he ought to have complied with the said order and joined duty as directed therein. There is no material before us to conclude that the requirement of joining duty as directed in Ext.P11 was waived or relaxed in favour of the first respondent. In such a situation, irrespective of the provisions contained in Rule 8 of Part II KS&SSR and the principles laid down by this Court and the Apex Court, we are inclined to conclude on facts that the first respondent was not eligible for the benefit of Ext.P11. On the other W. A. No.2539 of 2015 -10- hand, by his conduct of not complying with Ext.P11, the first respondent has forfeited the benefit of Ext.P11. If that be so, he was entitled to get terminal benefits settled treating him only as HSA (Arabic) of the General Education Department, which the Government have already been disbursed. Therefore, the first respondent could not have been granted any relief in the writ petition. Judgment under appeal is set aside and accordingly, the writ appeal is allowed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.2539 of 2015 -11-