High Court of KeralaSingle Judge2020-10-08Writ petition allowed; directions issued to app...

Usha Kumari.K.C. v. State of Kerala and Others

Case / Petition Number:WP(C).No.22172 OF 2019(V)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2020-10-08
Court Decision / Holding: The impugned orders are set aside. There will be a direction to the 4th respondent to approve the appointment of the petitioner as HST(Maths) with effect from 01.06.2016 on a regular scale of pay and to grant her all consequential benefits. The needful shall be done within a period of two months from the date of receipt of a copy of this judgment. The consequential benefits shall be paid within a period of two months thereafter.
Final Disposition: Writ petition allowed; directions issued to approve appointment from 01.06.2016 on regular pay scale with consequential benefits

Parties to the Case

Appellants / Petitioners

Usha Kumari.K.C.

Respondents

State of Kerala represented by the Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram
Director of General Education, Directorate of General Education, Jagathy, Thiruvananthapuram-695014
Deputy Director of Education, Pathanamthitta at Thiruvalla
District Educational Officer, Pathanamthitta, Office of the District Educational Officer, Pathanamthitta
The Manager, V.K.N.M. Vocational Higher Secondary School, VayyattuPuzha, Chittar, Pathanamthitta

Legal Representation & Advocates

Counsels for Petitioners

• Sri.S.P.Aravindakshan Pillay
• Smt.N.Santha
• Sri.V.Vargheese
• Sri.Peter Jose Christo
• Sri.S.A.Anand
• Smt.K.N.Remya
• Smt.L.Annapoorna
• Shri.Vishnu V.K.
• Kum.Abhirami K. Uday

Counsels for Respondents

• Sri.P.M. Manoj (Senior Government Pleader)

Case Synopsis & Summary

This writ petition, filed by Usha Kumari.K.C., challenges Exts. P2 and P9 and seeks to quash them by certiorari and to declare that her appointment by promotion as HST(Maths) from 01.06.2016 is entitled to approval with all consequential benefits. The petitioner, a veteran UPST turned HST, contends that the school’s uneconomic status cannot bar approval for a Rule 43 and 51A claimant, especially since similarly situated UPSTs were promoted and approved. She relies on government circular No. 3/80/2019/G.Edn dated 20.08.2019 which directs that Rule 51A appointments in uneconomic schools should be regularized on the scale of pay, and on the decision in Siji P. Jose v. State of Kerala (2012 (1) KLT 867) to argue retrospective effect from 10.05.2012. The respondents contend that the school is uneconomic, with limited student strength (132 in 2016-17) and a low class average, such that a regular appointment cannot be approved, despite her Rule 43/51A status. They further submit that directions from Government were sought and that corporate-management considerations preclude regularization. The court recognizes the circular and the cited decision and ultimately holds that the petitioner’s appointment should be approved on a regular scale of pay from 01.06.2016, quashing the impugned orders and directing prompt compliance within two months, with consequential benefits.

Provisions of Law Cited

Rule 43, Chapter XIVA, Kerala Education Rules (KER)Rule 51A, Chapter XIVA, Kerala Education Rules (KER)Chapter XIVA, Kerala Education Rules (KER)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that she was promoted to HST(Maths) with effect from 01.06.2016 and that the 3rd respondent's refusal to approve was illegal. She asserts that as a Rule 43 and 51A claimant she is entitled to promotion and that the uneconomic status of the school cannot impede it, especially since other UPSTs promoted to HSTs were already approved. She relies on circular No.3/80/2019/G.Edn dated 20.08.2019 which applies the Siji P. Jose decision to allow approval on the regular pay scale even in uneconomic schools, and on the decision in Siji P. Jose v. State of Kerala (2012 (1) KLT 867) to argue retrospective effect from 10.05.2012. The petitioner seeks quashing of Exts.P2 and P9 and a writ of mandamus to compel the respondents to approve her appointment from 01.06.2016 and grant all consequential benefits.

Contentions of Respondents

The respondents submit that the school is uneconomic; data for 2016-17 show only 132 students across standards I-X and a low class average, such that a regular appointment cannot be granted; daily-wage appointments were appropriate. They emphasize that directions from the Government were sought and that, in the absence of clear policy, corporate-management considerations and lack of a sanctioned post preclude regularization of the petitioner’s appointment. Although the petitioner is a Rule 43 and 51A claimant, the post is not available in the uneconomic school, and consequently the appointment cannot be approved on a regular scale.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Siji P. Jose v. State of Kerala	2012(1) KLT 867	Positive	Cited as authority for the principle that appointments in uneconomic schools can be regularized and given a regular pay scale, informing the circulared approach relied upon by the court.
WA 2694/2015	WA 2694/2015	Mentioned Only	Exhibit reference; the judgment notes the case but does not analyze its rulings within the decision.
WP(C).7275/2019-H	WP(C).7275/2019-H	Mentioned Only	Exhibit reference; cited contextually but not discussed in reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** ## **WP(C).No.22172 OF 2019(V)** ## **PETITIONER:** **USHA KUMARI.K.C., HIGH SCHOOL TEACHER(MATHEMATICS), V.K.N.M.VOCATIONAL HIGHER SECONDARY SCHOOL, VAYYATTUPUZHA, CHITTAR, PATHANAMTHITTA DISTRICT, PIN-689663** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001** |**2**|**DIRECTOR OF GENERAL EDUCATION**| |---|---| ||**DIRECTORATE OF GENERAL EDUCATION,**| ||**JAGATHY, THIRUVANANTHAPURAM-695014.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**PATHANAMTHITTA AT THIRUVALLA,**| ||**THIRUVALLA,**| ||**PATHANAMTHITTA DISTRICT, PIN-689101**| |**4**|**DISTRICT EDUCATIONAL OFFICER,**| ||**PATHANAMTHITTA,**| ||**OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,**| ||**PATHANAMTHITTA, PIN-689645**| **WP(C).No.22172 OF 2019(V)** 2 **5 THE MANAGER V.K.N.M.VOCATIONAL HIGHER SECONDARY SCHOOL, VAYYATTUPUZHA, CHITTAR, PATHANAMTHITTA DISTRICT, PIN-689663** **R1-4 BY SR.GOVERNMENT PLEADER SRI.P.M MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22172 OF 2019(V)** 3 ## **JUDGMENT** ## **Dated this the 8th day of October 2020** ## This writ petition is filed seeking the following reliefs: “i) Call for the records leading to Exts.P2 and P9 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii) declare that the petitioner is entitled to have her appointment by promotion as HST(Maths) approved w.e.f. 01.06.2016, with all consequential benefits and that denial of approval to her appointment by promotion is illegal. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to approve the appointment of the petitioner by promotion as HST(Maths) w.e.f. 01.06.2016 and grant her all consequential benefits.” 2. Heard the learned counsel for the petitioner and the ## learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner was earlier working as UPST in the 5[th] respondent school and she was promoted and appointed as HST(Maths) with effect from 01.06.2016. It is submitted that the approval for the appointment was rejected on the ground that the school is an uneconomic school and the petitioner's promotion cannot be **WP(C).No.22172 OF 2019(V)** 4 approved. It is submitted that two other UPSTs of the same school who were working on deployment on protection were thereafter accommodated as HSTs on promotion and the said appointments have been approved. The learned counsel for the petitioner submits that the petitioner is being a Rule 51A and Rule 43 claimant and the contention that the petitioner's appointment is in an uneconomic school cannot stand in the way of the approval of the appointment. The petitioner has also relied on a circular dated 20.08.2019, which specifies that the appointment made under Rule 51 A of Chapter XIVA KER even in uneconomic schools are liable to be approved on scale of pay basis. It is submitted that the said circular which is issued pursuant to a decision of this Court in **Siji P. Jose v. State of Kerala [** 2012(1)KLT 867] has retrospective effect from 10.05.2012. It is therefore contended that the appointment of the petitioner as HST is liable to be approved from the date of such appointment i.e., 01.06.2016. 4. A counter affidavit has been placed on record by the 3[rd] respondent. It is stated that the petitioner was initially appointed as UPST in the 5[th] respondent school and was promoted as HST (Maths) on 15.07.1995. On division fall, she was reverted as UPST in **WP(C).No.22172 OF 2019(V)** 5 2002. She was again promoted as HST with effect from 01.06.2016 in a promotion vacancy. It is submitted that the reason for not approving the appointment is that the school is a uneconomic school. It is submitted that directions were sought from the Government and on the basis of the said directions it was held by the 3[rd] respondent that the petitioner's appointment as HST on 01.06.2016 is not liable to the approved. It is stated that during 2016-17 there were only 132 students from standard I to X and since the class average was below 15, the appointment could be approved only on daily wages. It is stated that though the petitioner is both Rule 43 and 51 A claimant for the post of HST(Maths) and there is a post of HST(Maths) available in the high school, the petitioner's appointment could not be approved regularly only because the school is an uneconomic school. 5. Circular No.3/80/2019/G.Edn. dated 20.08.2019 specifically refers the decisions of this Court in **Siji P. Jose v. State of Kerala** [2012(1) KLT 867], wherein its is held that the appointment to sanctioned posts in uneconomic schools are liable to be approved. After referring to the decision it is stated in the absence of clear Government directions, appointments made under **WP(C).No.22172 OF 2019(V)** 6 Rule 51A Chapter XIVA KER in uneconomic schools were not being approved. It is ordered that such appointments will be approved on a regular scale of pay. Further directions are issued with regard to corporate managements having more schools than one some of which have adequate students strength also. 6. In the instant case the petitioner is admittedly a UP School Teacher, who had been initially appointed on 15.07.1995. She was appointed as HSA in 1999 and was relieved on a division fall in the year 2002. Her appointment on 01.06.2016 as HST(Maths) therefore is covered by both Rule 43 and Rule 51A of Chapter XIVA, KER. In the light of the specific directions contained in the circular dated 20.08.2019 and in the absence of any contention that the 5[th] respondent is a corporate management, I am of the opinion that the appointment of the petitioner from 01.06.2016 is liable to be approved on a scale of pay basis. 7. In the result, the impugned orders are set aside. There will be a direction to the 4[th] respondent to approve the appointment of the petitioner as HST(Maths) with effect from 01.06.2016 on a regular scale of pay and to grant her all consequential benefits. The needful shall be done within a period of two months from the date of **WP(C).No.22172 OF 2019(V)** 7 receipt of a copy of this judgment. The consequential benefits shall be paid within a period of two months thereafter. **Sd/-** **ANU SIVARAMAN JUDGE** dlk/08.10.2020 **WP(C).No.22172 OF 2019(V)** 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2016** - **EXHIBIT P2 TRUE COPY O THE ORDER NO.B4/15100/2017/K.DIS DATED 14.07.2017 OF THE 3RD RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE REVISION PETITION DATED 23.08.2017 FILED BY THE 5TH RESPONDENT MANAGER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 04.01.2017 OF SRI.K.VARGHESE PHILIP, ALONG WITH ORDER DATED 03.07.2017 OF THE 4TH RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.B4/13535/16/K.DIS DATED 07.12.2016 OF THE 3RD RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO.B1/6417/2016/K.DIS DATED 14.11.2017 OF THE 3RD RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.B1/8549/2017 DATED 15.11.2017 OF THE 3RD RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 12.03.2019 IN WP(C)7275/2019-H OF THIS HON'BLE COURT** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.E.T(3)/14063/2015/DGE/KDIS DATED 29.06.2019 OF THE 2ND RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.4545/J2/2007/G.EDN DATED 18.05.2007** - **EXHIBIT P11 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.58604/12/12/G.EDN DATED 06.11.2012** **EXHIBIT P12 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.951951/12/16/G.EDN DATED 19.11.2016** - **EXHIBIT P13 TRUE COPY OF THE ORDER NO.LDIS/B3/5049/2017 DATED 10.07.2017 OF THE 4TH RESPONDENT** - **EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 29.11.2016 IN WA 2694/2015 OF THIS HON'BLE COURT.**