WA.No. 1598 of 2017 (Against the Judgment in WP(C) 5476/2016 of HIGH COURT OF KERALA dated 01-06-2017)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 7TH DAY OF NOVEMBER, 2017 / 16TH KARTHIKA, 1939 **WA.No. 1598 of 2017** [AGAINST THE JUDGMENT IN WP(C) 5476/2016 of HIGH COURT OF KERALA DATED 01-06-2017] **APPELLANTS** (S)/RESPONDENTS 1 TO 4 IN W.P(C) 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3 THE DISTRICT EDUCATIONAL OFFICER OFFICER OF THE DISTRICT EDUCATIONAL OFFICE, THIRUVALLA, PATHANAMTHITTA DISTRICT. 4 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA, THIRUVALLA BY GOVERNMENT PLEADER SRI.A.J.VARGHESE. ## **RESPONDENTS** (S)/PETITIONER& RESPONDENT 5 IN W.P(C): 1. THE GENERAL MANAGER & INSPECTOR OF NSS SCHOOLS NSS HEAD OFFICE, PERUNNAI, CHANGANACHERRY, REPRESETNED BY SRI.K.V RAVINDRANATHAN NAIR 2. S.ASHA VIRUTHIPARAMBIL, KOTTAKKAKOM, MAVELIKARA P.O, ALAPPUZHA DISTRICT, NOW WORKING AS PT HSA(HIND), NSS HIGH SCHOOL, OTHERA, PATHANAMTHITTA DISTRICT. R2 BY ADV. SRI.S.SUBHASH CHAND R1 BY STANDING COUNSEL SRI.P.GOPAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------------------W.A.No. 1598 of 2017 'CR' ---------------------------------------------------** Dated this the 7[th] day of November, 2017 ## **JUDGMENT** ## **K.SURENDRA MOHAN, J.** The State is in appeal challenging the judgment of the learned Single Judge allowing W.P(C) No.5476 of 2016. Ext.P7 order of the Government, to the extent it ordered recovery of the salary and other allowances due to the second respondent from the Manager, passed on a revision petition filed by the second respondent had been challenged in the writ petition. A direction to recover the loss caused to the Government from the first respondent invoking the procedure set out in Rule 7(4) Chapter III, Kerala Education Rules, 1969 ('KER' for short) was issued by Ext.P7. The said direction has been set aside. The learned Single Judge has further directed that the appointment of the second respondent should be approved in accordance with the specific directions contained in Ext.P1 judgment, within a period of two W.A.No. 1598 of 2017 ## -:2:- months. The second respondent has also been held entitled to all consequential benefits upon such approval, including the benefits given to her under Ext.R5(b). 2. The short facts necessary for the disposal of this appeal are summarised as under:- The second respondent is a High School Assistant (Hindi). She was initially appointed as such on 20.9.2001 at the N.S.S.High School, Palkulangara, where she worked till 27.3.2002. From 6.6.2002 to 31.3.2004, she had worked at the N.S.S.High School, Perumpulickal. Thereafter, from 2.6.2004 to 31.3.2007, she worked at the N.S.S.High School, Kurathikad. During the academic year 2007-08, there was a reduction in the post of H.S.A. (Hindi). Thereupon, she was reverted and posted as a Part Time H.S.A.(Hindi) at the N.S.S.High School, Othera. However, her continuance as Part Time (H.S.A.) was not approved for the reason that the school was an uneconomic school. 3. In the above circumstances, she approached this Court by W.A.No. 1598 of 2017 -:3:- filing W.P(C) No.37140/2009 seeking a direction for the approval of her appointment. The said writ petition was disposed of by the learned Single Judge of this Court directing her continuance to be approved treating her as a Protected Teacher. The said judgment was made the subject matter of W.A.No.63/2015 at the instance of the first respondent. As per Ext.P1 judgment, this Court directed that the second respondent would be eligible for salary from 13.7.2007 to 14.7.2008 and that she would be appointed as Part Time H.S.A.(Hindi) with effect from 10.10.2012 at the N.S.S.High School, Othera. She was directed to be continued with effect from 10.10.2012, in view of the fact that, she had been retrenched from service on 14.7.2008 since there was a further reduction in one post of H.S.A.(Hindi) during the academic year 2008-09. 4. Pursuant to Ext.P1 judgment, the first respondent issued Ext.P2 order by which, the second respondent was 'notionally' appointed as a Part Time H.S.A.(Hindi) at N.S.S.High School, W.A.No. 1598 of 2017 ## -:4:- Othera from 10.10.2012 in the vacancy of one Smt.T.N.Umadevi, who was promoted as H.S.A.(Hindi) and posted at N.S.S.High School, Vengassery on 10.10.2012. Ext.P2 was followed by Ext.P4 appointment order dated 1.6.2015 issued by the first respondent. As per Ext.P4, the first respondent posted the second respondent with effect from 1.6.2015 in the vacancy of Smt.T.N.Umadevi mentioned above. Since such notional appointment did not entitle the second respondent to claim salary, she challenged the same by preferring Ext.P5 revision before the Government. Thereafter, she filed W.P(C) No.22415/2015 before this Court and the same was disposed of by Ext.P6 judgment dated 7.8.2015 the Government to consider and directing pass appropriate orders on Ext.P5 revision. Accordingly, after hearing the parties, Ext.P7 order was passed. 5. In Ext.P7, the Government found that the first respondent had not honoured his statutory obligation to appoint a Rule 51A claimant. It has been found in Ext.P7 that in spite of the directions W.A.No. 1598 of 2017 -:5:- contained in Ext.P1 judgment, the first respondent had not issued necessary orders appointing the second respondent as directed. Since he had denied the legitimate claim of the second respondent, the Government ordered that the second respondent be treated as having been appointed on 10.10.2012 itself. A further direction to recover the salary and other benefits payable to her from the first respondent was also issued. It was aggrieved by Ext.P7 that the first respondent had filed W.P(C) No5476/2016. 6. A counter affidavit was filed by the fourth appellant Deputy Director of Education. In the counter affidavit also, the stand adopted is similar to that of Ext.P7 order. No separate counter affidavit was filed on behalf of the Government. 7. The learned Single Judge considered the respective contentions, found that the first respondent could not be found fault with for not having appointed the second respondent, for the reason that, payment of salary to the teacher was automatic, and in view of the direction of the Division Bench contained in Ext.P1 W.A.No. 1598 of 2017 -:6:- judgment, such salary cannot be seen as a monetary loss to the Government. Therefore, it has been held that there are no circumstances available in this case warranting initiation of proceedings under Rule 7(4) of Chapter III KER against the first respondent. The State is aggrieved by the said finding. The State has no quarrel with the subsequent direction contained in the judgment appealed against, that the second respondent would be entitled to approval of her appointment in compliance with the direction contained in Ext.P1 judgment and for being granted all consequential benefits as contained in Ext.R5(b). Therefore, the question that arises for consideration in this appeal is whether the judgment of the learned Single Judge to the extent it holds that there are no grounds to proceed against the first respondent under Rule 7(4) of Chapter III KER is sustainable or not. 8. According to the learned Government Pleader, the second respondent had been thrown out from service on 14.7.2008. One Smt.T.N.Umadevi H.S.A.(Hindi) had been accommodated in the W.A.No. 1598 of 2017 -:7:- N.S.S.High School, Othera. However, on 10.10.2012, she was promoted as a Full time H.S.A. Since Smt.T.N.Umadevi had been appointed to the said post, in similar circumstances, the second respondent also ought to have been appointed to the said post, according to the learned Government Pleader. However, that was not done. Therefore, she had approached this Court by filing a writ petition, which culminated in Ext.P1 judgment and a Division Bench of this Court had also directed that the second respondent ought to be appointed with effect from 10.10.2012. Instead of complying with the said direction, the Manager issued Ext.P2 order followed by Ext.P4 appointment order. Both the said proceedings are in violation of the direction in Ext.P1. It was taking into account the said conduct that the Government had ordered recovery from the first respondent as per Ext.P7. It is contended that the learned Single Judge erred in interfering with the said order. 9. Advocate Subash Chand.S., who represents the second W.A.No. 1598 of 2017 -:8:- respondent also advances contentions more or less on the lines as the learned Government Pleader. It is pointed out by the learned counsel that the poor teacher has not been receiving her salary and other benefits, all these years. Therefore, it is contended that the conduct of the first respondent requires to be taken serious note of. In the face of the clear direction contained in Ext.P1, the first respondent had no authority to introduce a concept of notional appointment as done by Ext.P2. Thereafter, in Ext.P4, she was appointed only with effect from 1.6.2015. It was for the said reason that the second respondent had challenged the said order in revision before the Government, culminating in Ext.P7. Therefore, it is contended that, the direction in Ext.P7 was fully justified in the facts and circumstances of the case. 10. Advocate P.Gopal, who appears for the first respondent, on the other hand, points out that as per the Government Orders in force, only protected teachers could be appointed to uneconomic schools. Reliance is placed on G.O(P) No.259/06/G.Edn. dated W.A.No. 1598 of 2017 -:9:- 12.10.2006 to support the above contention. The Government Order was followed by a circular issued by the Director of Public Instructions dated 18.5.2007, prohibiting the filling up of vacancies available in uneconomic schools by posting Rule 51A claimants. Since the above orders were in force, it is pointed out by the learned counsel that it was not possible to post the second respondent in the vacancy that arose on 10.10.2012. It is true that the teacher had taken up the matter before this Court and by Ext.P1, this Court had directed her appointment, but the said judgment is dated 31.3.2015. Therefore, her right had crystalized only on the said date. Immediately thereafter, she has been appointed. Consequently, it is contended that the first respondent is not responsible for the delay in appointing her. To a pointed question as to why Smt.T.N.Umadevi, who was also not a Protected Teacher had been appointed to the school up to 10.10.2012, the counsel answers saying that her appointment was also not approved. Reliance is placed on a decision of another W.A.No. 1598 of 2017 -:10:- v. Division Bench of this Court reported in **Nair Service Society Government of Kerala** [2015(2) KLT 625] to contend that, Government Orders restricting the appointment of Rule 51A claimants and Circulars issued by the D.P.I. cannot be treated as executive orders issued in derogation of the statutory rules. According to the learned counsel, there are no grounds to interfere with the judgment of the learned Single Judge. 11. It is no doubt true that the second respondent was not a Protected Teacher. It is also not in dispute that she was a Rule 51A claimant. She had become an excess teacher and was thrown out on 14.7.2008. To the said vacancy, Smt.T.N.Umadevi, who was senior to her had been appointed, though she was not a protected teacher. She continued to work there till 10.10.2012, on which date she was promoted as a Full Time H.S.A. (Hindi). However, to the resultant vacancy, the second respondent was not appointed by the first respondent. In the meanwhile, she had been included in the Teachers' Package and was posted as BRC Co-ordinator. It W.A.No. 1598 of 2017 -:11:- was in the above circumstances that, as per Ext.P1 judgment, an order for the release of her salary and allowances as H.S.A. (Part Time) for the period from 13.7.2007 to 14.7.2008 and to reappoint her as H.S.A.(Part Time)(Hindi) in the promotion vacancy of Smt.T.N.Umadevi from 10.10.2012 was issued. It is true that the said judgment was rendered only on 31.3.2015. However, there is no answer to the question as to why the first respondent had not appointed the second respondent, on 10.10.2012, to the vacancy caused by the promotion of Smt.T.N.Umadevi. Considering the fact that Smt.T.N.Umadevi had been posted in the said vacancy, though she was not a protected teacher, the contention put forward on the basis of the Government Order and the circular of the DPI prohibiting the appointment of Rule 51A claimants to such vacancies lacks conviction. The counsel for the first respondent points out in the above context that it was because Smt.T.N.Umadevi's appointment had not been approved that the second respondent had not been appointed. Even if the said W.A.No. 1598 of 2017 -:12:- contention is accepted, there is absolutely no justification for the non-appointment of the second respondent, even after Ext.P1 judgment. It is worth noticing that the learned Single Judge had in W.P(C) No.37140/2009 filed by the second respondent directed her appointment from 13.7.2007 to 14.7.2008 to be approved treating her as a protected teacher. It was the said judgment that was challenged by the first respondent in W.A.No.63/2015, inviting Ext.P1 judgment. After having suffered the said judgment, we are of the opinion that, the first respondent ought to have complied with the directions contained therein. Instead, by Ext.P2 proceedings, the second respondent was 'notionally' appointed as a Part Time H.S.A.(Hindi) on 10.10.2012. To make matters worse, the first respondent issued Ext.P4 appointment order which purported to appoint the second respondent as a Part Time H.S.A. (Hindi) from 1.6.2015 onwards in the vacancy of Smt.T.N.Umadevi, who was promoted from the school on 10.10.2012. Ext.P4 further declares that the appointment was in W.A.No. 1598 of 2017 -:13:- compliance with the judgment of this Court, Ext.P1. 12. The conduct of the first respondent clearly betrays an absolute lack of bona fides on his part. The contention that the Government Order in force did not permit appointment of a claimant under Rule 51A, to fill up a post in an uneconomic school, cannot be accepted for the reason that Smt.T.N.Umadevi, who was not a Protected Teacher, had been accommodated in the post, that was occupied by the second respondent, with effect from 14.7.2008, after retrenching her. The reason stated for ousting her is that Smt.T.N.Umadevi was senior to the second respondent. Be that as it may, the first respondent ought to have accommodated the second respondent in the said post with effect from 10.10.2012 when Smt.T.N.Umadevi was promoted. That was also not done. Thereafter, by Ext.P1 judgment, a Division Bench of this Court directed that the second respondent to be appointed as Part Time H.S.A. (Hindi) with effect from 10.10.2012 in the N.S.S. High School, Othera. The first respondent did not choose to comply ## W.A.No. 1598 of 2017 ## -:14:- with even the said direction which was issued on 31.3.2015. In view of the above, issue of Exts.P2 and P4 proceedings has to be viewed with the seriousness that such conduct deserves. 13. As a consequence of Exts.P2 and P4, the second respondent was again compelled to approach this Court with W.P(C) No.22415/2015. The same was disposed of by Ext.P6 judgment directing her revision to be considered and it was accordingly that Ext.P7 was passed. In the above factual scenario, the direction in Ext.P7 to recover the salary and other benefits payable to the second respondent from the first respondent, cannot be found fault with. 14. A perusal of Clause (4) of Rule 7 of Chapter III, KER is appropriate in the above context. Clause (4) of Rule 7 of Chapter III, KER reads:- “In the case of a Manager who commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by teachers/Government shall be recoverable from the Manager under the provisions of the Revenue Recovery Act for the time being in force as if it is an arrear of public revenue due on and, in the following cases, namely:- W.A.No. 1598 of 2017 -:15:- (a) Denial of appointment to a qualified thrown out teacher who has a rightful claim for re-appointment by virtue of his/her holding the post earlier, under rule 51A Chapter XIV-A. (b) ............” It is clear from the above that, the denial of appointment to a qualified thrown out teacher, who has a right to claim for reappointment under Rule 51A has been specifically made an instance in which the above provision would be attracted. It is clear from the facts referred to above that, the said provision is squarely attracted in the present case. 15. In the above view, we are satisfied that the learned Single Judge has erred in interfering with Ext.P7 and setting aside the direction to proceed against the first respondent, invoking Rule 7(4) of Chapter III KER. The judgment of the learned Single Judge to the said extent is therefore set aside and the said direction in Ext.P7 is restored. The Government shall therefore be at liberty to proceed in accordance with the direction contained in Ext.P7. 16. The learned Single Judge has further directed in the ## W.A.No. 1598 of 2017 -:16:- judgment appealed against that the second respondent be issued with a proper appointment order appointing her at the N.S.S.High School, Othera with effect from 10.10.2012, as directed in Ext.P1 judgment. The third appellant herein has also been directed to approve such appointment, expeditiously. A further direction that the second respondent shall be entitled to all consequential benefits upon such approval including the benefits given to her under Ext.R5(b) produced along with her counter affidavit in the writ petition has also been issued. The said directions are confirmed. In the result, this writ appeal is allowed in part and the judgment of the learned Single Judge to the extent indicated above is set aside. Sd/- ## **K.SURENDRA MOHAN, Judge** Sd/- ## **MARY JOSEPH , Judge** MBS/ W.A.No. 1598 of 2017 -:17:- W.A.No. 1598 of 2017 -:18:-