V.N. Lalitha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942** ## **WP(C).No.1854 OF 2015(F)** ## **PETITIONER:** **V.N.LALITHA, AGED 52 YEARS D/O. K.S.NARAYANAN, NEEDLE WORK TEACHER, V.M.L.P.SCHOOL, ARATHIL, NAREEKAMAVALLY, P.O.MANDUR, KANNUR DISTRICT-670501.** **SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KANNUR DISTRICT-670001.** - **4 THE ASSISTANT EDUCATIONAL OFFICER MADAI, KANNUR DISTRICT-670304.** - **5 THE MANAGER V.M.L.P.SCHOOL, ARATHIL, NAREEKAMAVALLI, MANDUR, KANNUR-670501.** - **6 THE MANAGER, KADANNAPPALLY U.P SCHOOL, MADAI, KANNUR DISTRICT-670304.** - **7 THE MANAGER, KADANNAPPALLY EAST L.P SCHOOL, P.O.KADANNAPPALLY, (VIA) PILATHARA, KANNUR DISTRICT670304.** **SRI.G.SANTHOSH KUMAR P. SRI.V.N.RAMESAN NAMBISAN SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.1854 OF 2015(F) 2 ## **JUDGMENT** **Dated this the 18th day of January 2021** The petitioner says that she was appointed as a Needle Work Teacher with effect from 13.02.1989, against a regular retirement vacancy that arose in VMLP School, Arathil, Kannur. She has produced on record Ext.P1 to substantiate her appointment but says that the same has been rejected by the Assistant Educational Officer on the ground that the Manager of the School, namely the fifth respondent, could not have filled up vacancies of Specialist Teachers in L.P. Schools, since the post ceased to exist on the retirement of the incumbent Teacher working in the said post. 2. The learned counsel for the petitioner, Sri.M.Sajjad, submits that the afore said stand of the AEO is wholly contrary to the declarations of law made by this Court in **Govinda Pillai v. State of Kerala** [1999 (2) KLT 652] and **Joji v. Joint Director of Public Instruction** [2001 (2) KLT 393 (DB)] and prays that Ext.P6 be set aside and the petitioner be, at least, directed to be included in the list of WP(C).No.1854 OF 2015(F) 3 Teachers entitled to protection, because she has been working in the School all along from the date of her initial appointment. 3. Sri.Sajjad further explained that even though his client had been working in the School from 13.02.1989 uninterruptedly, she was not allowed to sign the attendance register, but was asked to sign a separate book with effect from 31.03.2009; and that it is only, therefore, that the Government appears to have excluded her from the list of Teachers entitled for protection on the ground that she was not in service as on 01.06.2011. Sri.Sajjad says that this is egregiously improper because forty six Physical Education Teachers have already been granted approval in various Schools, by creation of such number of supernumerary posts, as is evident from Ext.P3, as also 127 Specialist Teachers as per Ext.P4; and therefore, prays that the respondents be directed to grant the petitioner approval from the date of her initial appointment. 4. In response to the submissions of the petitioner as made by Sri.Sajjad as afore, the learned Senior Government Pleader, Sri.P.M.Manoj, submitted that two counter affidavits WP(C).No.1854 OF 2015(F) 4 have been placed on record, both sworn to by the Assistant Educational Officer, dated 08.03.2019 and 20.12.2019. Sri.P.M.Manoj submitted that, as has been averred in the additional affidavit filed by the AEO dated 20.12.2019, on account of the amendments to Rule 2(3) and 6-B of Chapter XXIII of the KER, the petitioner could not have been appointed to the post of Needle Teacher on the retirement of the earlier teacher, since the said post ceased to be in existence after such retirement. He, however, admitted that, as is averred in the first affidavit of the AEO dated 08.03.2019, the petitioner had attended the School after 31.03.2009, though had not signed the attendance register but a separate book and it is only, therefore, that when the case of 127 Specialist Teachers were considered for being granted the status of protected Teacher, she was excluded, since the attendance register did not show that she was in service on 01.06.2011, which is the relevant date. The learned Senior Government Pleader submitted that this can only be interpreted to mean that the petitioner has ceased her service from 01.06.2009, though she had attended the School and had signed a separate book. WP(C).No.1854 OF 2015(F) 5 5. Sri.P.M.Manoj concluded his submissions by saying that since the School in question is an uneconomic School, there was no provision to create additional Teachers posts and that since the petitioner was appointed in a retirement vacancy, but not approved by the Educational Authority, she cannot seek any prayer, including that she be treated as a protected teacher. He, therefore, prayed that this writ petition be dismissed. 6. Sri.V.N.Ramesan Nambisan, the learned counsel for respondents 5 to 7, submitted that the petitioner is fully entitled to the reliefs sought for by her in this writ petition because, as has been explained by this Court in **Govinda Pillai** (supra) and **Joji** (supra), the amendments to Rule 2(3) and to Rule 6B, of Chapter XXIII of the KER apply only to U.P.Schools and not to an L.P.School. He further submitted that since it has been admitted by the Government that the petitioner was working in the School even as on 01.06.2011 - though she was signing in a separate note book and not the attendance register on account of the rigor of the various Government Orders - she is eligible to be at least treated as a protected Teacher, as has been done in the case of 127 WP(C).No.1854 OF 2015(F) 6 Specialist Teachers through Ext.P4 order. He , therefore, prayed that this writ petition be allowed. 7. I have considered the afore submissions and have examined the materials and documents available on record very carefully. 8. It is indubitable that the petitioner claims that she was working in the School ever since from the date of her initial appointment and that she continues to do so even as on date. Her specific case is that even though she was so working, she was not allowed to sign the attendance register maintained by the Manager with effect from 31.03.2009 and that she was signing in a separate note book placed for this purpose. In fact, the averments in the affidavit filed by the AEO dated 08.03.2019 affirms this, since it is expressly admitted therein that the petitioner continued to attend the School after 31.03.2009 but that she was not allowed to sign the attendance register thereafter, even as on 01.06.2011, being the cut off date for consideration of grant of protection to the Specialist Teachers. These facts are also unequivocally admitted by the Headmistress in Ext.P8. 9. Obviously therefore, merely because the petitioner WP(C).No.1854 OF 2015(F) 7 had not signed the attendance register, it would not be a proper reason to decline her the claim for protection, as has been granted in the case of 127 other Specialist Teachers, which is evident from Ext.P4. 10. That apart, the question whether the amendments to Rule 2(3) and to Rule 6B of Chapter XXIII of the KER would apply to the case of the petitioner have been answered by this Court in **Govinda Pillai** (supra) and **Joji** (supra). These judgments have not been even adverted to by the competent Authority, while considering the case of the petitioner; and I am of the view that Ext.P6 cannot hence find favour in law, particularly because the petitioner asserts that she was entitled to be included in Ext.P4 list from the date of her appointment from 01.06.2011, at least notionally. In the afore circumstances, I allow this writ petition and set aside Ext.P6; with a consequential direction to the competent Secretary of the first respondent - State of Kerala to reconsider her claim, adverting to various documents on record, particularly Exts.P7 and P8, as also the counter affidavit of the AEO dated 08.03.2019, after affording an opportunity of being heard to the petitioner as well as to the WP(C).No.1854 OF 2015(F) 8 fifth respondent Manager - either physically or through video conferencing – thus culminating in an appropriate decision thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE** WP(C).No.1854 OF 2015(F) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 13-2-1989.** **EXHIBIT P2 TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 1-6-2002.** **EXHIBIT P3 TRUE COPY OF THE G.O.(MS)NO.307/2004/G.EDN. DATED 4-10-2004 OF THE GOVERNMENT.** - **EXHIBIT P4 TRUE COPY OF THE G.O.(P)NO. 116/2012/G.EDN. DATED 12-4-2012 OF THE GOVERNMENT.** **EXHIBIT P5 TRUE COPY OF THE G.O.(P)NO. 199/2011/G.EDN. DATED 1-10-2011 OF THE GOVERNMENT.** **EXHIBIT P6 TRUE COPY OF THE G.O.(RT)NO. 3607/2014/G.EDN. DATED 16-09-2014 OF THE GOVERNMENT. EXHIBIT P7 TRUE COPY OF THE ORDER NO. C/5190/11 DATED 3-7-2012 OF THE 4TH RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 14-01-2013 SENT TO THE 1ST RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE NOTES OF ARGUMENT DATED 1804-2013 SUBMITTED BY THE PETITIONER HEARING HELD BY 1ST RESPONDENT.**