Viswanath Kurup R v. The Secretary to Government, General Education Department, Government of Kerala; The Director of Public Instructions; The Deputy Director of Education; The District Educational Officer, Mavelikkara; The Manager, MSM Higher Secondary School, Kayamkulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** ## **WP(C).No.20615 OF 2019(B)** ## **PETITIONER:** **VISWANATHA KURUP R AGED 55 YEARS** **S/O.RAGHAVAN NAIR, U.P.SCHOOL TEACHER, M.S.M. HIGHER SECONDARY SCHOOL, KAYAMKULAM, RESIDING AT 'KAILASOM', MUTHUKULAM SOUTH.P.O., ALAPPUZHA-690506.** **BY ADVS. SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND** ## **RESPONDENTS:** - **1 THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA-688 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA-690 101.** - **5 THE MANAGER, MSM HIGHER SECONDARY SCHOOL, KAYAMKULAM, ALAPPUZHA690 502.** - **R1-4 BY GOVERNMENT PLEADER R5 BY ADV. SRI.M.MANOJKUMAR (CHELAKKADAN)** ## **SRI. P.M.MANOJ – SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.20615 OF 2019 2 ## **JUDGMENT** ## **Dated this the 29th day of January 2021** The petitioner, who is stated to have been working as an Upper Primary School Teacher (UPST) in “MSM Higher Secondary School,” Kayamkulam, at the time when this writ petition was filed (he has since retired on attaining the age of superannuation), submits that he was appointed in the vacancy consequent to the promotion of a teacher by name Smt. Susan Abraham, as a Rule 51A claimant, since his earlier broken spells of service in the School in the years 1993 and 1996 had been approved. 2. The petitioner alleges that, however, his appointment on 12.08.1996 was not approved by the competent Educational Authority on the ground that a senior teacher by name Sri. N.Sreekumar, a Lower Primary School Teacher (LPST), had been thrown out on account of fall in divisions, but not reaccommodated. 3. The petitioner says that, he, therefore, approached this Court by filing a writ petition, namely O.P No.280/1997, asserting that since Sri. N.Sreekumar is only an LPST, he cannot be adjusted against the available post of UPST and that the said WP(C).No.20615 OF 2019 3 Original Petition was disposed of through Ext.P2 judgment, directing the District Educational Officer (DEO), to reconsider the petitioner's claim. He says that the DEO again rejected his approval, thus constraining him to approach this Court by filing O.P No.10418/1997, which culminated in Ext.P3 judgment which quashed the impugned order. 4. The petitioner says that the Manager, again, appointed him with effect from 02.06.1997, in the very same vacancy, but that this appointment was also rejected by the DEO, through order dated 17.10.1997, against which the Manager of the School filed a statutory Appeal asserting that an LPST cannot claim the vacancy of UPST. He says that, consequently, the DEO issued an order, dated 15.11.1997, granting approval to him with effect from 12.08.1996 but limited it till 31.03.1997, in purported compliance of the directions in Exts.P2 and P3 judgments. He asserts that, limiting the period of approval in this fashion was illegal, since, the original vacancy to which he was appointed on 12.08.1996 is also a substantive vacancy, as Smt.Susan Abraham had been promoted as HSA in the place of another teacher by name Smt.Shobhana Kumari, who had availed a long leave for more than three years without allowances. WP(C).No.20615 OF 2019 4 5. The petitioner says that, in the meanwhile, the afore mentioned Sri.N.Sreekumar approached this Court by filing O.P. No.14257/1997, which was disposed of by this Court, directing the DEO to consider this case and that the said officer issued an order dated 31.12.1997, shifting the lien of Sri.N.Sreekumar to the regular vacancy in the school with effect from 15.07.1996. 6. The petitioner says that, while so, his appeal against the aforementioned approval order of the DEO limiting his appointment until 31.3.1997, was also rejected by the Deputy Director through order dated 10.2.1998, thus constraining him to approach this Court again challenging this order. 7. The petitioner says that in between all these, salary due to him and to a teacher by name Smt.Geetha was refused on the ground that the Super Check Cell had found lack of adequate number of students, leading to reduction of divisions and that this made him to approach this Court again, particularly because, he was entitled to protection for the reason that he had worked the whole year. He submits that this Court thereafter issued Ext. P4 judgment, wherein it was declared that the order of the Government bearing number G.O.No.240/1999/Gen.Edn. Dated 29.9.1999 - which provides for protection of qualified teachers - is WP(C).No.20615 OF 2019 5 applicable to the petitioner and Smt.Geetha and both of them were asked to approach the Government with proper representation. 8. The petitioner says that consequent there to, the Government issued Ext.P6 order dated 31.3.2006 stating that the petitioner nor the aforementioned Smt.Geetha is entitled to protection and that he can be given appointment to a regular vacancy only with effect from 14.9.1998. He says that this order was also challenged before this Court in WP(C) No.15029/2006 and that it was quashed, thus remitting the matter to the Government for fresh consideration, but that it again issued Ext.P7 order citing the same reasons as had been found untenable by this Court in Ext.P5 judgment, followed by Ext.P8 order for recovery of certain amounts from him on account of the alleged excess payment of salary due to division fall in the School. 9. The petitioner says that he thus filed WP(C) No.13871/2018 against Ext.P8 order, which was also disposed of, directing the Government to reconsider his claim, adverting to the judgment of this Court in **Thresia vs. Preethi [2014) 4 KLT 837 (FB)]** . 10. The petitioner alleges that in spite of all these afore developments, the Educational Authorities has now issued Ext.P12 WP(C).No.20615 OF 2019 6 order, again rejecting his plea saying that the vacancy that arose on 12.8.1996 – to which he had been appointed for the first time – was a temporary one. The petitioner asserts that the reasons in Ext. P12 are untenable and that the vacancy which arose on 12.8.1996 cannot be construed to be temporary one, because it occurred consequent to the promotion of Smt.Susan Abraham as HSA, in the place of Smt. Sobhana Kumari who had availed leave for three years and more without allowances. 11. The petitioner, therefore, prays that Ext. P12 be set aside and that Government be directed to grant approval to his appointment with effect from 12.8.1996, so as to enable him to obtain all his eligible service and terminal benefits without any further delay. 12. In response, the Senior Government Pleader - Sri.P.M Manoj, submitted that the afore recorded factual narration by this Court would itself show that the petitioner was originally appointed to the vacancy of UPSA on 12.08.1996, solely because another teacher by name Smt.Susan Abraham had been promoted to a temporary vacancy of HSA, consequent to Smt.Shobhana Kumari having availed long leave for three years without allowances. He submitted that, therefore, it becomes clear that the WP(C).No.20615 OF 2019 7 vacancy to which the petitioner was appointed was only temporary, because, if Smt.Shobhana Kumari returned to service, then Smt.Susan Abraham would have to be reverted to the post of UPSA. He added to his submissions by saying that, in any event of the matter, the afore mentioned Sri. Sreekumar was already in service as a LPST, while the petitioner was appointed as UPST on 12.8.1996, overlooking his better claim; and therefore, prayed that the order of the D.E.O. dated 31.12.1997 be allowed to operate. Sri. P.M. Manoj further explained that the lien of Sri. Sreekumar was adjusted against the part of UPSA because, until 18.6.2000, the posts of LPSA and UPSA were interchangeable and therefore, that the claim of Sri. Sreekumar was certainly better than that of the petitioner. He, therefore, prayed that this writ petition be dismissed, since the petitioner cannot claim any of the reliefs sought for in this writ petition. 13. The facts as seen above makes it evident that it is the nature of the vacancy that arose on 12.08.1996, which is most crucial in this case because if it is construed to be substantive, all controversy would find a resolution. This is also vital because the DEO had issued order dated 15.11.1997, approving the appointment of the petitioner with effect from 12.8.1996 but WP(C).No.20615 OF 2019 8 limiting it till 31.3.1997. The approval was so limited taking note of the right of Sri. Sreekumar, who had been retrenched in the post of LPSA. But if the original appointment of the petitioner was to a substantive vacancy, the lien of Sri. Sreekumar could not have been adjusted in the manner as was done by the order of the DEO dated 31.12.1997. 14. The uncontested facts on record show that the above vacancy arose consequent to the promotion of Smt. Susan Abraham as a High School Teacher, in the vacancy that occurred because a High School Teacher by name Smt.Sobhana Kumari had proceeded on a long leave on three years without allowances. There is nothing on record to show that Smt. Sobhana Kumari had thereafter rejoined or that Smt.Susan Abraham had been reverted. That being so, even if it is assumed that Smt. Sobhana Kumari had returned or that Smt. Susan Abraham had been reverted, it would be of no consequence because, at least for two or three Academic Years the promotion Smt.Susan Abraham was firm and consequently, the petitioner was also functioning as UPSA with effect from 12.8.1996. This is indubitable from the fact that even as on 2.6.1997, there was a vacancy on account of the promotion of Smt. Susan Abraham, to which the Manager had appointed the WP(C).No.20615 OF 2019 9 petitioner. 15. I am, therefore, of the firm view that notwithstanding what is stated by the contesting respondents, the vacancy that arose on 12.8.1996 cannot be seen to be merely a temporary one and that it had, by all accounts, accrued the status and character of a substantive vacancy, particularly because it continued for at least two Academic Years or more. 16. When one looks at the whole picture from that angle, it becomes indubitable that on account of the declarations in Exts.P2 and P3 judgments, the lien of Sri.Sreekumar could not have been adjusted to the vacancy that arose on 12.8.1996 and that the petitioner, being validly appointed into it based on his claim under Rule 51A of the KER - the Government could not have rejected his approval and limited it to 31.3.1997. What is pertinent in the case is that in purported compliance of Exts. P2 and P3 judgments, the DEO had issued his order dated 15.11.1997, approving the appointment of the petitioner with effect from 12.8.1996, but limited to 31.2.1997, which in my view, was improper and unnecessary. 17. I am pursuant to the afore view also for the reason that this Court had, through P4 judgment, held that the petitioner WP(C).No.20615 OF 2019 10 along with the other teacher by name Smt.Geetha, were entitled to the protection of the Government order bearing No.240/1999/GDN dated 29.9.1999. Obviously, therefore, the petitioner ought to have been granted such benefit, which however was disregarded in the subsequent orders. 18. That said since, it is now conceded that the petitioner has retired from service, all that remains is the consideration as to whether he is entitled to any monetary benefits is on account of his service from 12.8.1996. In the afore circumstances, I order this writ petition and set aside Ext.P12, with a consequential direction to the Government to reconsider the claim of the petitioner for approval of his appointment with effect from 12.8.1996 uninterruptedly, as also for protection under the Government order dated 29.9.1999, adverting to the declarations in Exts.P2 and P3 judgments as also my observations above and after affording an opportunity of being heard to him and the Manager of the School - either physically or through video conferencing – thus culminating in an appropriate order, as expeditiously as is possible but not later than four months from the date of receipt of a copy of this judgment. It is needless to say that if, after the afore exercise the WP(C).No.20615 OF 2019 11 petitioner is found entitled to any consequential service and retiral benefits, the same shall be computed and disbursed to him at the earliest, but not later than two months from the date on which the resultant order is issued. This writ petition is thus ordered. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** SMF WP(C).No.20615 OF 2019 12 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 12.8.1996 ISSUED TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 12.2.1997 IN O.P.NO.280 OF 1997.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 22.10.1997 IN O.P.NO.10418 OF 1997.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 22.7.2005 IN O.P.NO.9028 OF 1998.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 10.12.2009 IN WPC.NO.15029 OF 2006.** **EXHIBIT P6 TRUE COPY OF GO(RT)NO.1386/06/G EDN DATED 31.3.2006.** - **EXHIBIT P7 TRUE COPY OF GO(MS)NO.3904/2010/G.EDN DATED 6.9.2010.** - **EXHIBIT P8 TRUE COPY OF ORDER NO.B1/2696/2013 DATED 7.5.2013 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE EXTRACT FROM THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 12.12.2018 IN WPC.NO.13871 OF 2013.** - **EXHIBIT P11 TRUE COPY OF THE NOTES OF ARGUMENT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF GO(MS)NO.2556/2019/G EDN DATED 26.6.2019.** **EXHIBIT P13 TRUE EXTRACT OF THE TEACHER'S ATTENDENCE FOR THE MONTH OF APRIL, 1997 MAINTAINED IN THE 5TH RESPONDENT SCHOOL.** **EXHIBIT P14 TRUE COPY OF DIRECTION ISSUED BY R4 ON 25.08.2001 TO RELEASE THE SALARY OF THE PETITIONER, ALONG WITH THE TYPED COPY OF THE SAME.** WP(C).No.20615 OF 2019 13 |**EXHIBIT P15**|**TRUED COPY OF LETTER DT. 04.02.2020 SENT**| |---|---| ||**BY THE PETITIONER ALONG WITH PENSION**| ||**PAPERS TO R4.**| |**EXHIBIT P-16**|**TRUE COPY OF ORDER G4/3190/2020/DDE DT.**| ||**ISSUED BY R3.**| |**EXHIBIT P17**|**TRUE EXTRACT OF RELEVANT PAGES OF SERVICE**| ||**BOOK OF THE PETITIONER.**| **//TRUE COPY// PA TO JUDGE**