Viswanatha Kurup R v. The Secretary to Government, Department of General Education (H), Government of Kerala, Thiruvananthapuram, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** ## **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** ## **WP(C).No.13871 of 2013** ## **PETITIONER:** **VISWANATHA KURUP R, AGED 48 YEARS, S/O.RAGHAVAN NAIR, BRC CO-ORDINATOR, BRC AMBALAPPUZHA, U.P.S.A.,M S M HIGH SCHOOL, KAYAMKULAM, RESIDING AT'KAILASOM', MUTHUKULAM SOUTH P O, ALAPPUZHA** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.S.M.PRASANTH** ## **RESPONDENTS:** - **1 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION(H,) GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 001** - **3 THE DEPUTY DIRECTOR DIRECTOR OF EDUCATION ALAPPUZHA-688 001** - **4 THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA-690 101** - **5 THE MANAGER M S M HIGH SCHOOL, KAYAMKULAM, ALAPPUZHA-690 502** ## **GOVERNMENT PLEADER.SRI.N.B.SUNIL NATH.** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13871 of 2013** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The writ petitioner, who is a Teacher now working as Cluster Coordinator, has filed this writ petition, seeking to declare that the petitioner is a protected teacher as he was in the regular service as on 14.07.1997. The petitioner also seeks to set aside Exts.P7 and P8 orders passed by the respondents. 2. The facts emerging from the pleadings of the case are as follows:- The petitioner worked as UPSA for short spells from 13.10.1993 to 16.12.1993, from 02.01.1995 to 31.03.1995, from 29.08.1995 to 24.11.1995 and from 02.01.1996 to 02.03.1996. These short duration appointments were approved. The petitioner was appointed as UPSA against a regular vacancy, which arose consequent to the promotion of Susan Abraham, the incumbent to the said vacancy, on 12.08.1996. The said **WP(C).No.13871 of 2013** **3** appointment was not approved. Against the non approval of the appointment of the petitioner as UPSA, he filed O.P. No.280/1997. In the said writ petition, this Court directed the DEO to consider the question of approval of appointment of the petitioner as UPSA in accordance with law. The petitioner contends that in spite of the direction, the DEO rejected the claim of the petitioner on 16.04.1997. 3. It appears that the management of the School reappointed the petitioner as UPSA again on 02.06.1997. However, the District Educational Officer rejected the approval of that appointment also on 17.10.1997. The petitioner thereupon filed O.P. No.10418/1997. The said O.P. was allowed by this Court on 22.10.1997 and the impugned order of the DEO was set aside. It is seen that on 15.11.1997, the DEO approved the regular appointment of the petitioner as UPSA with effect from 02.06.1997. However, such approval was confined only up to 31.03.1997. **WP(C).No.13871 of 2013** **4** 4. Subsequently, the 1[st] respondent issued Ext.P6 rejecting the claim of the petitioner stating that the petitioner was not eligible for the benefit of G.O.(P) No.377/1996/G.Edn. dated 08.11.1996 and G.O.(P) No.219/1997/G.Edn. dated 20.06.1997 as he was not approved teacher at the time of fixation of staff for the academic years 1996-97 and 1997-98. Aggrieved by Ext.P6 order, the petitioner filed W.P.(C) No.15029/2006. In the said writ petition, this Court quashed Ext.P6 order and remitted the matter back to the Government to examine the claim raised by the petitioner based on the Government Orders relied on. It has come out from the pleadings that the service of the petitioner was dispensed with on 31.01.2007 consequent to an inspection by the Super Check Cell, wherein bogus admissions of students were detected. The petitioner was, however, later appointed as Cluster Coordinator with effect from 26.02.2012, following the extant Government Orders. Thereafter, the 1[st] **WP(C).No.13871 of 2013** **5** respondent rejected the claim of the petitioner for approval of his service as per Ext.P7. According to Ext.P7, the petitioner was not entitled for appointment since one LPSA Sri.N.Sreekumar, who was senior to the petitioner, had to be appointed against the vacancy to which the petitioner was appointed. It is for the said reason that approval of the petitioner's appointment was confined up to 31.03.1997. On these premises, the petitioner's claim for approval of his appointment was rejected. 5. Again, the DEO issued Ext.P8 proceedings. In Ext.P8 proceedings, it was stated that the petitioner had approved continuous service with effect from 14.09.1998 and has drawn salary. Subsequently, he was thrown out from service with effect from 15.07.2008 by Super Check Cell due to detection of bogus admission of pupil. However, the name of the petitioner was included in Teachers Package and was subsequently accommodated as Cluster Coordinator. Ext.P8 further stated that as per Government **WP(C).No.13871 of 2013** **6** Circular dated 21.06.2012, excess amount disbursed to the teachers by way of salary with effect from 15.07.2010 shall be recovered from their salary in instalments. The DEO found that the petitioner has drawn excess salary to the tune of `47,495/-. Therefore, the DEO ordered that the said amount be recovered from the salary of the petitioner in 36 equal instalments from May, 2013 onwards. It is challenging Exts.P7 and P8 orders that the writ petition has been filed. 6. The respondents opposed the prayer of the petitioner by filing counter affidavit. According to the respondents, Sri.Sreekumar was a thrown out LPSA from the School under the same management. The Manager did not accommodate Sreekumar in any regular vacancy. The 4[th] respondent had directed to shift the lien of Sreekumar from 15.07.1996 in a regular vacancy available in the School. The Manager appointed the petitioner as UPSA with effect from 02.06.1997 in the same vacancy. It was for **WP(C).No.13871 of 2013** **7** the said reason that the 4[th] respondent has rejected the approval of the appointment of the petitioner. 7. The counter affidavit filed by the respondents further stated that the Super Check Cell of the Director of Public Instructions visited large number of schools and detected 342 bogus admissions. The bogus admissions resulted in sanctioning of many posts including the posts of three UPSAs. The Accountant General objected to such appointments. In the case of the petitioner, the petitioner as well as one Smt.K.Geetha had no regular approved service during the academic year 1996-97 and hence, they are not eligible for protection. According to the respondents, the petitioner is not a regular teacher as on 14.07.1997 and hence, he is not eligible for any protection benefit. 8. I have heard learned counsel for the petitioner and the learned Government Pleader representing the respondents. 9. According to the learned counsel for the **WP(C).No.13871 of 2013** **8** petitioner, the petitioner was appointed as UPSA on 12.08.1996 against a vacancy, which arose consequent to the promotion of one Susan Abraham. The denial of approval of the service of the petitioner in respect of his appointment with effect from 12.08.1996 is unjustifiable. The respondents have refused to approve the service of the petitioner for the reason that there was an LPSA namely, Sreekumar, who was senior to the petitioner. In this regard, the learned counsel for the petitioner argues that the said Sreekumar was an LPSA whereas, the petitioner was working as UPSA. The vacancy in question was that of UPSA. Though the LPSAs and UPSAs at the relevant time were under a common seniority list, the said seniority list was to operate only for the purpose of further promotion to the post of Primary School Headmaster. As the posts of LPSAs and UPSAs are two distinct cadres, the said LPSA could not have been appointed against a vacancy of UPSA for which the petitioner alone was eligible. The denial of **WP(C).No.13871 of 2013** **9** approval of his service is, therefore, totally unjustifiable, contended the learned counsel for the petitioner. 10. The learned Government Pleader, opposing the prayers of the petitioner, reiterated the arguments made in the counter affidavit. The learned Government Pleader submitted that as LPSAs and UPSAs were under a common seniority list during the relevant time, the Manager could not have overlooked the seniority of Sreekumar in order to favour the petitioner. As regards the proposal to recover amount from the petitioner, the learned Government Pleader submitted that bogus admissions made by the Manager resulted in sanctioning many unwarranted posts including three posts of UPSAs. On the basis of the objections raised by the Accountant General, the issue was considered and excess appointments were done away with. Consequently, the petitioner was included in the retrenched teachers' list. The excess amount paid to the petitioner is, therefore, liable to be recovered. The Government has **WP(C).No.13871 of 2013** **10** taken a compassionate view and has ordered to recover the money in easy instalments. The writ petition, therefore, lacks any merits, contends the learned Government Pleader. 11. I have considered the rival submissions made in the matter. The petitioner was appointed on 12.08.1996 against a promotion vacancy, which arose consequent to the promotion of a UPSA. Appointment against that vacancy, whether to be made following the common seniority list of LPSAs and UPSAs, is the question. The issue came for consideration of a Full Bench of this Court in . _**Thresia M.L. v. Preethy M.P. and Others** [2014 (4) 837]_ The Full Bench of this Court found that Rules show beyond any doubt that UPSAs and LPSAs, except for the purpose indicated in Rule 34(b), are treated for all other purposes as different categories and that the combined seniority list maintained in terms of Rule 34(b) as amended with effect from 18.12.1984, is for the limited purpose of determining **WP(C).No.13871 of 2013** **11** the position of persons eligible for promotion as Primary School Headmaster and nothing else. The Full Bench further held that in its considered opinion, in the light of the language of Rule 34(b) of Chapter XIV A KER, if there is occasion for retrenchment of a UPSA or an LPSA, the seniority that is to be followed is the seniority in the respective category and not the common seniority. In view of the said Full Bench decision, the stand of the respondents that appointment of the petitioner with effect from 12.08.1996 against a vacancy of UPSA cannot be approved as there is a senior LPSA, cannot stand the scrutiny of law. 12. The learned Government Pleader, at this stage, pointed out that a similarly situated teacher from the same School of the same management namely, Smt.Geetha, who had also an identical issue relating to approval of her service, had filed W.P.(C) No.82/2011 and this Court had directed the 1[st] respondent to reconsider the issue. **WP(C).No.13871 of 2013** **12** 13. In the circumstances of the case, I am of the considered opinion that the issue raised by the petitioner will have to be reconsidered by the 1[st] respondent in proper perspective, in the light of the judgment of this Court in _**Thresia M.L.** (supra)_ . The question of recovery of any amount from the salary of the petitioner will also have to be looked afresh by the 1[st] respondent, in view of the legal position stated above. Had the authorities granted approval for the appointment of the petitioner with effect from 12.08.1996, perhaps the petitioner would not have been rendered surplus on detection of bogus admission by Super Check Cell and perhaps the question of recovery of excess payment would not have arisen. 14. For enabling the 1[st] respondent to reconsider the issue as stated above, I set aside Exts.P7 and P8 orders. Consequently, the 1[st] respondent is directed to reconsider the issue. If the petitioner prefers a fresh representation pointing out the judgment in W.P.(C) No.82/2011 dated **WP(C).No.13871 of 2013** **13** 01.03.2017 and the Full Bench judgment of this Court in _**Thresia M.L.** (supra)_ , within a period of two weeks, the 1[st] respondent will consider the entire issue in the light of the above observations and pass appropriate orders within a period of three months therefrom. With the above directions, writ petition is disposed of. Sd/- **N. NAGARESH, JUDGE** aks/13.12.2018 **WP(C).No.13871 of 2013** **14** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE INTERIM ORDER DATED 22/10/2010 IN WRIT PETITION NO.32331 OF 2010** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 12/8/1996 IN RESPECT OF THE PETITIONER SHOWING THE APPROVAL OF THE DISTRICT EDUCATIONAL OFFICER DATED 15/11/1997** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN OP NO 280 OF 1997 DATED 12/2/1997** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC 9028 OF 1998 DATED 22/7/2005** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 10/12/2009 IN WPC NO 15029 OF 2006** **EXHIBIT P6 TRUE COPY OF THE GO(RT)NO 1386/2006/G.EDN DATED 31/3/2006** **EXHIBIT P7 TRUE COPY OF G.O(MS)NO 3904/2010/GEN.EDN DATED 6/9/2010** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO B1/2696/2013 DATED 7/5/2013 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P9 TRUE COPY OF G.O. (RT)NO.2561/2017/G.EDN.DATED 02.08.2017 ISSUED BY THE GOVERNMENT OF KERALA** **EXHIBIT P10 TRUE COPY OF REPRESENTATION DATED 08.10.2018 SUBMITTED BY THE PETITIONER ALONG WITH COVERING LETTER DATED 09.10.2018**