High Court of KeralaSingle Judge2017-01-09Petition allowed; Exts.P3 and P4 quashed; petit...

Ushakumari M. v. State of Kerala & Others

Case / Petition Number:WP(C).No. 1269 of 2014 (G)

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2017-01-09
Court Decision / Holding: Exts.P3 and P4 are set aside; the petitioner is entitled to the benefit of Ext.P1 order of approval and to the order passed by the Joint Director of Public Instructions on 26.09.2001 in the appeal against staff fixation for 1999-2000; the petitioner is to be approved from 23.02.1999 and to continue in the next academic year under the 1:40 ratio; consequential orders and arrears to be calculated and disbursed within two months from receipt of this judgment.
Final Disposition: Petition allowed; Exts.P3 and P4 quashed; petitioner to be granted approval from 23.02.1999 and to receive consequential benefits; arrears to be disbursed within two months; orders to pass accordingly.

Parties to the Case

Appellants / Petitioners

Ushakumari M.

Respondents

State of Kerala
Director of Public Instructions
District Educational Officer, Kanhangad, Kasaragod District
Assistant Educational Officer, Chittarikkal, Kasaragod District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. R. Ravi
• Sri. V. Vinay Menon
• Sri. Jawahar Jose
• Smt. Cissy Mathews

Counsels for Respondents

• Smt. Mary Beena Joseph

Case Synopsis & Summary

Challenge in this writ petition is against Exts.P3 and P4 orders directing cancellation of approval granted for the appointment of the petitioner as Lower Primary School Assistant (LPSA) from 23.02.1999 and directing recovery of salary paid. The petitioner was appointed on 23.02.1999 in a regular resignation vacancy at an aided school, with approval for periods 23.02.1999–31.03.1999 and 01.06.1999–14.07.1999. Due to a fall in student strength, a staff fixation order for 1999-2000 reduced one LPSA post, and the petitioner was retrenched on 14.07.1999. An appeal against the staff fixation was decided in the petitioner’s favour, invoking 1:40 ratio since she had approved service from 23.02.1999; however, Ext.P3 (25.09.2013) followed the Local Audit Report that she had worked only 37 days in the academic year and therefore was not eligible for an approved scale under Rule 7A of Chapter XIVA KER. It is contended that the restriction in Rule 7A relates to leave vacancies, not regular appointments, and that audit objections cannot be the basis to cancel approval. The learned Judge holds that the Government Order restricting approvals does not apply to regular appointments, sets aside Exts.P3 and P4, and directs grant of approval in accordance with Ext.P1 and the 2001 appeal decision, with consequences and arrears to be computed and paid within two months.

Provisions of Law Cited

Rule 7A of Chapter XIVA Kerala Education RulesRule 51A of Chapter XIVA Kerala Education Rules

Legal Doctrines & Maxims

It is trite law that approval of appointment cannot be cancelled on the basis of objections raised in audit.
1:40 teacher–student ratio doctrine as applicable to retention in the subsequent academic year for those with approved service in the preceding year.
Regular appointments are not governed by amendments to Rule 7A and Rule 51A in respect of leave-vacancies; the restrictions apply differently as per vacancy type.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that her appointment from 23.02.1999 was in a retirement vacancy and approved for two periods; the staff fixation order for 1999-2000 did not invalidate her service; 1:40 ratio should apply, not a blanket invalidation; Government Order restricting approval based on audit is not applicable to regular vacancies and audit objections cannot be a basis to cancel approval; Relies on Supreme Court’s Sneha Cheriyan and Nair Service Society, and this Court’s Mini Joseph; seeks setting aside Exts.P3 and P4, grant of approval from 23.02.1999, and consequential orders and arrears in line with Ext.P1 and the 2001 appeal order; petitions to continue in the next year under the 1:40 ratio.

Contentions of Respondents

Respondents contend Exts.P3 and P4 were issued on the basis of Local Audit Report, which found the petitioner to have served only 37 days; Therefore not eligible for approval of scale of pay under Rule 7A; The 1:40 ratio applies to a particular context and the restriction relates to leave vacancies, not regular appointments; Audit objections can justify cancellation in the present context; The reliance on Sneha Cheriyan and Nair Service Society is misplaced as these address leave vacancies; The petition should be dismissed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Sneha Cheriyan	2013 (1) KLT 755 (SC)	Positive	Apex Court held that Rule 7A restrictions apply to leave vacancies, not to regular appointments; Court relies on this to permit regular appointments.
Nair Service Society v. State of Kerala	2013 (4) KLT 921	Positive	Court follows Sneha Cheriyan, holding that Rule 7A restrictions pertain to leave vacancies, not regular appointments.
Director of Public Instructions v. Mini Joseph	2009 (1) KLT 923	Positive	Earlier decision cited as supportive precedent for the petitioner’s position.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Ushakumari M. v. State of Kerala & Others and instantly map out authorities that support, challenge, or govern your position.

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 MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938 WP(C).No. 1269 of 2014 (G) -------------------------------- PETITIONER: -------------- USHAKUMARI M., AGED 38 YEARS, W/O.M.SREEDHARAN, RESIDING AT "VISHAKAM", AHIKODE, BALLA P.O., KASARGODE DISTRICT (NOW EMPLOYED AS LOWER PRIMARY SCHOOL ASSISTANT AT AIDED LOWER PRIMARY SCHOOL, NATTAKKAL, KASARAGOD DISTRICT.) BY ADVS.SRI.T.R.RAVI SRI.V.VINAY MENON SRI.JAWAHAR JOSE SMT.CISSY MATHEWS RESPONDENTS: - ------------------ 1. THE STATE OF KERALA; REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, POOJAPARA P.O., THIRUVANANTHAPURAM, PIN - 695 012. 3. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD, KASARAGOD DISTRICT, PIN - 671 315. 4. THE ASSISTANT EDUCATIONAL OFFICER, CHITTARIKKAL, KASARAGOD DISTRICT, PIN - 671 326. R1-R4 BY SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.1269/2014 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT.P1 : COPY OF ORDER ISSUED BY R2 DTD.3.2.01. EXT.P2 : COPY OF APPOINTMENT ORDER DTD.5.6.06. EXT.P3 : COPY OF ORDER ISSUED BY R1 DTD.25.9.13. EXT.P4 : COPY OF ORDER ISSUED BY R4 DTD.7.11.13. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A to Judge. smp ## **ANU SIVARAMAN, J.** ----------------------------------- ## W.P.(C) No.1269 of 2014 -----------------------------------Dated this the 9[th] day of January, 2017 ## **J U D G M E N T** Challenge in this writ petition is against Exts.P3 and P4 orders directing cancellation of approval granted for the appointment of petitioner as Lower Primary School Assistant (LPSA) from 23.02.1999 and further directing recovery of salary paid to the petitioner. 2. The petitioner was appointed in a regular resignation vacancy as LPSA in an aided school with effect from 23.02.1999. The appointment was approved from 23.02.1999 to 31.03.1999 and from 01.06.1999 to 14.07.1999. It is submitted that there was fall in students strength and in the staff fixation order for the year 1999-2000, one post of LPSA was reduced. Consequently, W.P.(C) No.1269/2014 2 petitioner was retrenched on 14.07.1999. It is submitted by the learned counsel for the petitioner that an appeal was preferred by the Manager against staff fixation order for the year 19992000 and the petitioner was held to be eligible to continue, invoking 1:40 ratio since the petitioner had approved service with effect from 23.02.1999. However, by Ext.P3 order dated 25.09.2013, on the basis of Local Audit Report of the accounts of aided L.P/U.P schools, Government passed an order stating that the petitioner had been appointed on 23.02.1999 and had worked only 37 days in the academic year and was therefore not eligible for getting approval of scale of pay based on Rule 7A of Chapter XIVA KER. It is further stated that retention under 1:40 ratio is applicable only to retain a teacher who had approved service in the previous year. It is therefore held that since the petitioner was ineligible for approval during 1998-1999, her retention during next academic year is also irregular. By Ext.P4 W.P.(C) No.1269/2014 3 proceedings, the Assistant Educational Officer had taken steps pursuant to the Government Order to cancel the appointment and to recover the salary already paid. These orders are under challenge. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. It is submitted by the learned counsel for the petitioner that the issue raised in this writ petition is covered in favour of the petitioner by judgment of the Apex Court in _**State of Kerala** vs_ . _**Sneha Cheriyan**_ (2013 (1) KLT 755 (SC)) and of this Court in _**Nair Service Society** vs._ _**State of Kerala**_ (2013 (4) KLT 921) as well as earlier decision of this Court in _**Director of Public Instructions** vs._ _**Mini Joseph**_ (2009 (1) KLT 923). In _**Nair Service Society** vs._ _**State of Kerala**_ (2013 (4) KLT 921), learned Single Judge of this Court, relying on the decision of the Apex Court in _Sneha Cheriyan_ 's case (supra), held that restriction W.P.(C) No.1269/2014 4 contained in Rule 7A of Chapter XIVA of Kerala Education Rules would apply only to leave vacancies and not to regular appointments. It was held that regular appointments were never sought to be governed by the amendments to Rule 7A and Rule 51A of Chapter XIVA KER. Therefore, the Government Order restricting approval of appointments in vacancies of duration of less than a particular period would have no application to appointments in regular vacancies which were made during the course of the academic year. 5. The petitioner's appointment was in a retirement vacancy. The said appointment, though made on 23.02.1999 was against a substantive resignation vacancy which evidently had a duration of more than one academic year. In the above view of the matter, restriction relating to period of appointment would have no application in the petitioner's case. The petitioner would therefore be entitled to approval of her appointment with W.P.(C) No.1269/2014 5 effect from 23.02.1999 against retirement vacancy. She would therefore be entitled to continue in the next academic year also, on applying the 1:40 teacher student ratio. It is also trite law that approval of appointment cannot be cancelled on the basis of objections raised in audit. Exts.P3 and P4 orders are therefore set aside. It is directed that the petitioner will be granted the benefit of Ext.P1 order of approval as well as order passed by the Joint Director of Public Instructions on 26.09.2001 in the appeal against staff fixation in respect of the year 1999-2000. The petitioner would therefore be entitled to approval of appointment and also to consequential benefits arising on the basis of Ext.P1 as well as orders in appeal referred to above. Consequential orders shall be passed by the 4[th] respondent-Assistant Educational Officer within a period of two months from the date of receipt of a copy of this judgment. All consequential arrears shall also be calculated and 6 W.P.(C) No.1269/2014 disbursed to the petitioner within a period of two months thereafter. Sd/- **ANU SIVARAMAN JUDGE** smp