Kerala High Court
Anu K.Abraham vs State Of Kerala on 13 July, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
WP(C) NO. 28137 OF 2012
PETITIONERS:
1 ANU K.ABRAHAM
UPSA, (UPPER PRIMARY SCHOOL ASSISTANT), ST.GEORGE'S
HIGH SCHOOL, VENNIKULAM, KOKKAPILLY.P.O, DEPLOYED AS
LOWER PRIMARY SCHOOL ASSISTANT, K.C.L.P.SCHOOL,
CHITHRAPUZHA.
2 LINDA PAUL
UPSA, (UPPER PRIMARY SCHOOL ASSISTANT), ST.GEORGE'S
HIGH SCHOOL, VENNIKULAM, KOKKAPILLY.P.O, DEPLOYED AS
LOWER PRIMARY SCHOOL ASSISTANT, M.D.L.P.SCHOOL,
KARINGACHIRA.
BY ADVS.
SRI.K.JAJU BABU
SRI.BRIJESH MOHAN
SMT.DHANYA CHANDRAN
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM-695 014.
3 THE DISTRICT EDUACTIONAL OFFICER
ALUVA-683 101.
4 THE ASSISTANT EDUCATIONAL OFFICER
TRIPUNITHURA-682 301.
5 THE CORPORATE MANAGER
SCHOOLS UNDER THE CORPORATE MANAGEMENT OF ST.GEORGE
JACOBITE SYRIAN CATHEDRAL, KARINGACHIRA, IRUMPANAM,
ERNAKULAM-682 309.
WP(C) NO. 28137 OF 2012 2
6 SMT.SOUMYA JOB
LOWER PRIMARY SCHOOL ASSISTANT, M.D.L.P.SCHOOL,
KARINGACHIRA, DEPLOYED AS UPPER PRIMARY SCHOOL
ASSISTANT, ST.GEORGE HIGH SCHOOL, VENNIKULAM,
KOKKAPILLY.P.O, PIN-682 305.
7 SMT.BINCY ABRAHAM
LOWER PRIMARY SCHOOL ASSISTANT, M.D.L.P.SCHOOL,
KARINGACHIRA, DEPLOYED AS UPPER PRIMARY SCHOOL
ASSISTANT, ST.GEORGE HIGH SCHOOL, VENNIKULAM,
KOKKAPILLY.P.O, PIN-682 305.
BY ADVS.
GOVERNMENT PLEADER
SRI.K.E.HAMZA
SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
SRI.G.MANU KRISHNAN
SRI.VARGHESE C.KURIAKOSE
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 28137 OF 2012 3
JUDGMENT
The petitioners say that they were appointed as Upper Primary School Assistants (UPSA) in the services of "St.George's High School", Vennikulam, through Exts.P1 and P2 respectively; and that same were approved by the competent Educational Authority, which is evident from the endorsements contained therein. They say that, however, subsequently, the Manager issued Ext.P5, accommodating respondents 6 and 7 to the post of UPSA and consequently reverting them as Lower Primary School Assistants (LPSA), and that too, on temporary basis.
2. The petitioners allege that, to make matters worse, the Manager also issued Ext.P6 proceedings, asking them to refund the amounts received by them as salary in the post of UPSA.
3. The petitioners assert that Exts.P5 and P6 are illegal, particularly because they, concededly, do not hold the qualification of WP(C) NO. 28137 OF 2012 4 Teachers Training Course (TTC for short), which is a mandatory qualification to be accommodated as LPSA. They say that, therefore, their appointment as LPSA, consequent to Ext.P5, would never obtain the approval of the Educational Authorities; but that without considering any of these aspects, Government has now issued Ext.P11 order approving the same. The petitioner, therefore, prays that Exts.P5, P6 and P11 be set aside and they be allowed to continue as UPSA in the School in question.
4. I have heard Shri.Brijesh Mohan, learned counsel appearing for the petitioners; Smt.P.A.Jenzia, learned counsel appearing for respondents 6 and 7 and the learned Senior Government Pleader, Shri.P.M.Manoj, appearing for the official respondents. Even though notice from this Court has been validly served on the 5th respondent - Manager, he has chosen not to be present in person or to be represented through counsel, inferentially guiding me to the WP(C) NO. 28137 OF 2012 5 impression that he has nothing to say in opposition to the contentions of the petitioners.
5. Smt.P.A.Jenzia, learned counsel appearing for respondents 6 and 7, submitted that her clients were entitled to be accommodated as UPSA because they both enjoyed a superior and senior claim, under Rule 41A, Chapter XIVA of the Kerla Education Rules (KER for short). She thus asserted that her clients were entitled to be accommodated either as LPSA or UPSA and that law permits this expressly. She, therefore, prayed that this Court may not pass any orders to the detriment of her clients in this writ petition.
6. The learned Senior Government Pleader, Shri.P.M.Manoj justified Ext.P11 order of the Government, saying that the entire mischief appears to have been done by the Manager because he had accommodated the petitioners to the vacancies to which they were not entitled to be considered. He added that since respondents 6 and 7 have a superior claim under Rule 41A, Chapter WP(C) NO. 28137 OF 2012 6 XIVA of the KER, the Manager ought to have first accommodated them and only then could he have appointed the petitioners. He, therefore, prayed that Ext.P11 be not interdicted.
7. I am afraid that I cannot find favour with the submissions of the learned Senior Government Pleader as afore because, as rightly stated by Shri.Brijesh Mohan, petitioners were appointed as UPSA with effect from 01/06/2009 and 01/06/2010 respectively and same was also approved, as is evident from the endorsements contained in Exts.P1 and P2. Therefore, to now say that their appointments were incorrect or that approval was granted in error cannot be countenanced because it is now well settled in law, requiring no need for reinstatement, that any such approval can be cancelled only as per the mandate of the KER and that too only by the competent Authority under Rule 8A, Chapter XIVA thereof. Since this has not been admittedly done, it is obvious that petitioners continue to be WP(C) NO. 28137 OF 2012 7 approved teachers.
8. The next question is whether accommodation of respondents 6 and 7 was valid. This issue I do not require to consider - because that is not an aspect which is directly in question before this court. However, consequent to the accommodation of respondents 6 and 7, the Manager sought to deploy the petitioners as LPSAs on a temporary basis. This is challenged herein.
9. As submitted by Shri.Brijesh Mohan, petitioners have not acquired the TTC qualification. It is conceded before me even by the learned Senior Government Pleader that without the TTC qualification, petitioners could not have been appointed as LPSAs. This makes matters even worse because the Manager, in spite of this, tried to deploy them as LPSAs consequent to the posting of respondents 6 and 7 as UPSAs. Unfortunately this has been offered favour by the Government through Ext.P11.
10. I am, therefore, certain that Ext.P11 has WP(C) NO. 28137 OF 2012 8 not been issued by the Government noticing the fact that petitioners could not have been deployed as LPSAs on account of the fact that they do not have the necessary qualification.
11. In the afore circumstances, I am of the opinion that Ext.P11 cannot find the imprimatur of this Court and that the matter will have to be reconsidered by the Government, taking note of the above observations.
Resultantly, this writ petition is ordered and Ext.P11 is set aside; with a consequential direction to the Government to rehear the petitioners, respondents 6 and 7 and the Manager of the School - either physically or through video conferencing - and take a fresh decision on the internecine claims of the parties - particularly that of the petitioners that they cannot be deployed as LPSAs - leading to an appropriate order thereon, as expeditiously a is possible, but not later than four months from the date of receipt of a copy of this judgment. WP(C) NO. 28137 OF 2012 9
Needless to say, the status quo with respect to the position of the petitioners as on date shall be maintained by all the parties until the afore exercise is completed and the resultant order communicated to them.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/13.7 WP(C) NO. 28137 OF 2012 10 APPENDIX OF WP(C) 28137/2012 PETITIONER ANNEXURE Exhibit P1 COPY OF THE APPOINTMENT ORDER NO. B4- 9878/11/D.DIS. DATED 12/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.
Exhibit P2 COPY OF THE APPOINTMENT ORDER NO.
B4/9881/11/D.DIS. DATED 12/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.
Exhibit P11 THE TRUE COPY OF THE ORDER GO(RT) NO.1316/2014/G.EDN. DATED 17/03/2014. Exhibit P3 COPY OF THE ORDER DATED 25/06/2012 VIDE NO. GO(RT) NO. 2958/2012/G.EDN. ISSUED BY THE 1ST RESPONDENT.
Exhibit P4 COPY OF THE ORDER NO.
F5/19966/12/DIRECTOR OF PUBLIC INSTRUCTIONS/K.DIS DATED 31/07/2012 ISSUED BY THE 2ND RESPONDENT.
Exhibit P5 COPY OF THE PROCEEDINGS NO.7/2012 DATED 23/08/2012 ISSUED BY THE 5TH RESPONDENT.
Exhibit P6 COPY OF THE PROCEEDINGS NO.75/2012 DATED 24/08/2012 ISSUED BY THE HEADMASTER, ST. GEORGE'S HIGH SCHOOL, VENNIKULAM, TO THE 2ND PETITIONER. Exhibit P7 COPY OF THE ORDER NO. B4/7273/2012 DATED 14/09/2012 ISSUED BY THE 3RD RESPONDENT.
Exhibit P8 COPY OF THE ORDER NO.
C/2936/2012/K.DIS. DATED 10/10/2012 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER.
Exhibit P9 COPY OF THE ORDER NO. C/2935/2012/K.DIS DATED 10/10/2012 ISSUED BY THE 4TH WP(C) NO. 28137 OF 2012 11 RESPONDENT TO THE 2ND PETITIONER. Exhibit P10 COPY OF THE HEARING NOTICE NO.38901/LE/2013/G.EDN. DATED 18/11/2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P11 THE TRUE COPY OF THE ORDER GO(RT)NO.1316/2014/G.EDN. DATED 17.03.2014.
RESPONDENT'S/S EXHIBITS:
Exhibit R6(A) TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 04/06/2007.
Exhibit R6(B) TRUE COPY OF THE APPOINTMENT ORDER OF SMT. SOUMYA JOB DATED 06/06/2007.
Exhibit R6(C) TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 20/05/2010.
Exhibit R6(D) TRUE COPY OF THE APPOINTMENT ORDER OF SMT. SOUMYA JOB DATED 01/06/2010.
Exhibit R6(E) TRUE COPY OF THE GO(MS) NO.42/2011/G.EDN. OF THE GOVERNMENT DATED 16/02/2011.
Exhibit R6(F) TRUE COPY OF THE APPEAL FILED BEFORE THE DEPUTY DIRECTOR DATED 24/09/2012.