V.A. BENU IYPE v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** ## **WP(C).No. 25857 of 2012** ## **PETITIONER/S:** **V.A.BENU IYPE** **D/O.V.V.IYPE, AGED 41 YEARS, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), ST.MARY'S HIGH SCHOOL, NIRANAM, PATHANAMTHITTA DISTRICT-689621.** ## **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA AT THIRUVALLA-680101.** - **4 THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA-689101, PATHANAMTHITTA DISTRICT.** - **5 THE HEADMASTER ST.MARY'S HIGH SCHOOL, NIRANAM, PATHANAMTHITTA DISTRICT-689621.** ## **BY ADV. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SMT.G.RANJITA, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 25857 of 2012** 2 ## **J U D G M E N T** Petitioner, who was working as UPSA in an aided School, was denied promotion because of a wrong staff fixation. She is claiming pay and allowances for the period from the date on which she was illegally denied promotion as HSA. 2. Petitioner, who was working as UPSA, was qualified for promotion as HSA (Physical Science). In the year 2005-2006, there were 2 post of HSA (Physical Science), 1 post of HSA (Natural Science), 2 Posts of HSA (mathematics), 2 HSA (English) and 2 HSA (Social Science). Petitioner claims that during the academic year 2004-05, 2 HSA (Physical Science) were working and one of them retired from service, but the DEO in the staff fixation, accommodated one of the HSA (Maths) in the second post available for HSA (Physical Science). Petitioner approached the DEO claiming promotion against one of the vacancies **WP(C).No. 25857 of 2012** 3 which arose in the post of HSA (Physical Science). Ultimately, the matter was considered by the Government in Ext.P1 order dated 11.06.2007. Government found that when Smt.Susan Thomas, one of the HSAs (Physical Science), retired from service on 31.03.2005, petitioner was the rightful claimant for promotion, as she had been working as a UPSA from 16.11.2002 onwards. Government found that despite the orders issued by Government on deployment of the protected teachers specifically directing that subject ratio should be adhered to and directing that the teachers eligible for protection shall be deployed in Government Schools, the department officials did not deploy the protected teacher and retained her ignoring the subject ratio as well as her eligibility for protection. 3. The contention of the respondents is that petitioner has not actually worked in the post of HSA and hence she is not eligible for salary on the **WP(C).No. 25857 of 2012** 4 ## principle of no work no pay. 4. Government directed the Manager and the DEO to take steps to promote the petitioner as HSA (PS) notionally with effect from 01.06.2005 and to deploy Smt.Susan K. Mathew on protection. The petitioner therefore claimed the monetary benefits on account of the notional promotion granted to her. 5. Government, thereafter issued Ext.P5 order denying her claim on the ground that she has not actually performed duty as HSA from 01.06.2005 to 19.06.2007 and that she was working as UPSA during that period. It was also found that Smt.Susan K. Mathew had performed the duty of HSA during the said period in that post with all monetary benefits. Petitioner relies on the judgments in **State of Kerala and Others v. E.K.Bhaskaran Pillai** [ILR 2007 (3) Kerala 107] and **Valsala Kumari Devi v. State of Kerala** [2011 (3) KHC 275] (Ext.P6 judgment) where this Court had found that the person who was **WP(C).No. 25857 of 2012** 5 denied promotion illegally, was entitled to payment of salary. 6. The respondents have filed a counter affidavit reiterating their stand in Ext.P5 order. 7. The fact that there were admissibility for 2 post of HSA (PS) is not disputed. It is also not disputed that on retirement of Smt. Susan K. Mathew an HSA (Mathematics) was accommodated in the post of HSA (PS). Government has already found that the departmental officials denied promotion to a statutory claimant like petitioner. The action of the department in retaining any protected hand in HSA (Maths) against the vacancy of HSA (PS) and denying promotion to an eligible candidate was found unjustifiable. Besides it was also found that a second HSA (PS) was required to be appointed to maintain minimum subject ratio. A perusal of Ext.P1 would show that the Government themselves found that the departmental authorities were at fault in **WP(C).No. 25857 of 2012** 6 denying promotion to the petitioner at the right time. 8. The petitioner points out that even the benefit of higher grade was not granted to her even after Ext.P1 order was issued. I do not find any reason for denying even the benefit of higher grade to petitioner who was found eligible for promotion as HSA when the Government directed that she would be given promotion with effect from 01.06.2005 notionally. It is seen that the Manager is not at fault in this case because the staff fixation orders are issued in such a manner accommodating the Mathematics hand in the post of HSA (PS). As rightly found by the Government in Ext.P1, the retrenchment of teachers had to be done in accordance with the subject ratio. There was deficiency of one HSA (PS), consequent to the retirement in the year 2005 that vacancy should have been filled up by a qualified hand. This Court as well as the Apex Court has **WP(C).No. 25857 of 2012** 7 directed time and again that persons who are qualified alone should be appointed in the respective posts (see **Deepa Augustine v Geetha Alex** [2008 (2) KLT 771]). Petitioner could not actually work as HSA, only because she was denied the opportunity to work despite her repeated requests, on account of the illegal stand adopted by the respondents. Therefore in the light of the judgments in **Valsala kumar** i's case as well as in **Bharkara Pillai** 's case (supra) there is no justification in denying the monetary benefits attached to the post of HSA to the petitioner from 01.06.2005 onwards. 9. In this case there would not have been any double payment, because the protected teacher who was retained in the place of petitioner could have been deployed to a Government School or some other School. When Government found the denial of promotion of petitioner was illegal, in Ext.P1 order, there is no justification in denying the **WP(C).No. 25857 of 2012** 8 benefits due to the petitioner reckoning the date of promotion as HSA as 01.06.2005. In the above circumstances, respondents 1 to 4 are directed to see that petitioner is granted all the benefits after fixing her pay as admissible to HSA from 01.06.2005 with all consequential benefits including grade promotion treating the date of her promotion as HSA 01.06.2005, within a period of 'four months' from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 25857 of 2012** 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GO(RT) NO.2619/07/G.EDN. DATED 11/06/2007 OF THE GOVERNMENT.** **EXHIBIT P2 TRUE COPY OF THE REVIEW PETITION FILED BEFORE THE GOVERNMENT DATED 08/01/2008.** **EXHIBIT P3 TRUE COPY OF THE DECISION REPORTED IN I.L.R. 2003(1) KER.340 DATED 28/11/2002.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.11264/2008 N DATED 02/04/2008.** - **EXHIBIT P5 RUE COPY OF THE GO(RT) NO.4210/2008/G.EDN. DATED 22/09/2008 OF THE GOVERNMENT.** **EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 2011(3)K.H.C. 275(DB) DATED 23/06/2011.** ## **EXHIBIT P7** **TRUE COPY OF THE COMMUNICATION NO.B5/5243/12/L.DIS. DATED 03/09/2012 OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.**