Kerala High Court
State Of Kerala vs Asha V on 13 January, 2021
Equivalent citations: AIRONLINE 2021 KER 27
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
WA.No.1321 OF 2020
AGAINST THE INTERIM ORDER DATED 13.02.2020 IN IA NO.2/2019 IN
WP(C) 24474/2018(H) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1-4 IN WPC:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695 014
3 THE DEPUTY DIRECTOR OF EDUCATION,
KOLLAM-691 001
4 THE ASSISTANT EDUCATIONAL OFFICER,
PUNALUR, KOLLAM DISTRICT-691 305
BY SR.GP SRI. A.J. VARGHESE
RESPONDENTS/PETITIONER & 5TH RESPONDENT IN WPC:
1 ASHA V.
LOWER GRADE HINDI TEACHER., EDAMON U.P.SCHOOL,
EDAMON, PUNALUR VIA, KOLLAM DISTRICT-691 307,
RESIDING AT MANKOLACKAL VEEDU, EDAMON P.O., PUNALUR
VIA, KOLLAM-691 307
2 THE MANAGER,
EDAMON U.P.SCHOOL, EDAMON, PUNALUR VIA, KOLLAM
DISTRICT-691 307
R1 BY ADV. SMT.K.R.KRISHNAKUMARI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2021,
THE COURT ON 13-01-2021 DELIVERED THE FOLLOWING:
WA No.1321/2020
-:2:-
JUDGMENT
Dated this the 13th day of January, 2021 Shaffique, J.
This appeal is filed against the interim order dated 13/2/2020 in IA No.2/2019 in WP(C) No.24474/2018. State and its officers have preferred this appeal against the aforesaid interim order by which the learned Single Judge modified its earlier order dated 20/7/2018 and directed the appellants to pay salary to the writ petitioner from July 2018 onwards and continue to pay the same until disposal of the writ petition. It is made clear that directions issued are subject to orders by the Division Bench in WA No.2440/2017 and connected cases.
2. The writ petition was filed by the 1 st respondent herein challenging Ext.P8 order by which she was deployed from the school in which she was working as Head Teacher to Government School, Malappuram. Her parent school was Upper Primary School, Edamon where she was working in the capacity of Lower Grade Hindi Teacher w.e.f. 15/7/2007. Consequent to finalisation WA No.1321/2020 -:3:- of staff fixation of the parent school of the petitioner for the year 2015-16, petitioner was rendered surplus and she was included in the teachers bank. However, she was retained in the parent school as Head Teacher. While the petitioner was working as Head Teacher, Government issued GO(P) No.199/2016/G.Edn dated 3/12/2016 by amending the Kerala Education Rules. Since the petitioner was not qualified to be accommodated against the post of UPST, Ext.P8 order came to be issued, and in order to accommodate the petitioner, she was deployed to Government School at Malappuram.
3. The contention urged by the petitioner is that she ought to be accommodated in the post of Head Teacher, as during the academic years 2016-17 and 2017-18, she was accommodated as Head Teacher. Therefore, she sought for continuance in the said post. According to her, even during the academic year 2018-19, a vacancy of Head Teacher is available and therefore she should be accommodated in the said post. The Government however contended that since the Head Teacher post is to be given to UPST and the petitioner does not have the WA No.1321/2020 -:4:- qualification to be appointed as UPST, she cannot continue in that position.
4. By an interim order dated 20/7/2018, while admitting the writ petition, the petitioner sought permission to continue in the same school at her risk and without any salary and accordingly, the following interim order had been passed:-
"Notice before admission to the fifth respondent. Learned Government Pleader takes notice for respondents 1 to 4.
The petitioner shall be permitted to continue at her risk without any salary.
Post on 31/7/2018."
5. However, during the pendency of the writ petition, she filed IA No.2/2019 seeking for modification of the said order and seeking salary to be paid while she was working in the said school. Before the learned Single Judge, it was inter alia contended that the amendment to KER made as per Government Order dated 3/12/2016 has been interfered by this Court in WA No. 2425/2017 and connected cases and since there was a direction to maintain status quo as on 19/12/2017 to the appointments, approval and deployment of teachers on the basis of the 2016 amendment to the KER, the petitioner is entitled for WA No.1321/2020 -:5:- salary in the post of Head Teacher.
6. While impugning the aforesaid interim order, learned Government Pleader submits that the petitioner was permitted to work in her parent school at Edamon only on account of the interim order dated 20/7/2018. But, she cannot work in the capacity of Head Teacher since she is not qualified. The interim order in WA No.2425/2017 and connected cases has no application to the case on hand insofar as the said interim order does not amount to a stay of 2016 amendment. But the direction is only to maintain status quo with reference to appointments, approval and deployment of teachers on the basis of the amendment. It is pointed out that no appointment had been made after the interim order based on the amendment nor was any approval granted and there was no deployment as well. As far as the petitioner is concerned, the amendment has no effect at all since she is not a person who is qualified to be appointed as a Head Teacher. She was given the posting of Head Teacher not on the basis of the amendment, but on the basis of sanctioning of such a post in order to accommodate her and therefore, WA No.1321/2020 -:6:- according to the learned Government Pleader, the order of status quo cannot enure to the benefit of the petitioner.
7. In Ext.P8 order which is under challenge, orders had been passed with reference to the academic year 2018-19 by deploying protected teachers to the other districts temporarily. It cannot be stated that Ext.P8 order is in violation of the order of status quo issued in WA No. 2425/2017 and connected cases. The deployment of the petitioner to another district has not been made based on the 2016 amendment. An additional affidavit has been filed by the appellants as IA No.3/2020 producing certain additional documents. It is contended that Edamon U.P.School, Punalur is an Upper Primary School. The petitioner was appointed as a Lower Grade Hindi Teacher and she has no qualification to teach as an Upper Primary School Teacher. During 2014-15 also, the school in which the petitioner was working faced reduction of division. Government therefore deployed the petitioner as BRC Trainer in Sarva Siksha Abhiyan, Kollam District for a period of one year as per Annexure A3 and she was working in that capacity as evident from Annexures A4 and A5. She was WA No.1321/2020 -:7:- thereafter relieved on 30/6/2016 by the Block Programme Officer. The Deputy Director of Education by order dated 26/8/2016 issued a direction to the Managers to deploy the excess protected teachers consequent to the finalisation of staff fixation orders for the year 2015-16, pursuant to which petitioner was sent back to her parent school. Further, as per order dated 16/6/2018, she was sent to PMG UPS Punalur as Part Time Teacher to teach the subject of Hindi for the first three days and for the remaining two days at GUPS, Maniyatt as Part Time Teacher. Annexure A9 had been produced to prove the aforesaid fact. Further to this, she was deployed to Malappuram Government School. According to the appellants, there was no vacancy in Kollam district to accommodate the petitioner in the post of Lower Grade Hindi teacher and it is for her benefit that she was deployed to Malappuram District. Since she does not have the requisite qualification to teach as UPST in the Upper Primary section of the school, she cannot be retained in her parent school nor she is entitled to receive any salary.
8. The claim of the petitioner is that when a post of Head WA No.1321/2020 -:8:- Teacher is available in her parent school and she was accommodated in that school for two years, she should be permitted to continue as Head Teacher.
9. Of course, if the students exceed 100 in Standards V to VII, one post of Upper Primary School Teacher (UPST) is to be sanctioned additionally by exempting the Headmaster from class charge. Petitioner does not have a case that she is qualified to be appointed as a Head Teacher. But, the request is to accommodate her in that school.
10. This is a case in which the petitioner had obtained an interim order to continue in the school with an offer that she will work without any salary. This is not a case where the petitioner was not deployed to any other school. The petitioner was admittedly deployed to a school at Malappuram. She cannot claim to continue in the very same school where there was no post. Therefore, she was working only at her own risk and without any salary.
11. As far as the pendency of WA No. 2425/2017 and connected cases are concerned, we are of the view that the WA No.1321/2020 -:9:- learned Single Judge had proceeded on the basis that the judgment in the said case may have a bearing in the deployment of the petitioner. The petitioner lost employment in the parent school only on account of the staff fixation orders right from 2014-2015. She was working in various other institutions including the parent school but she cannot claim that she would work only in the parent school when an alternate deployment had been offered to her. Learned counsel for the petitioner would submit that the petitioner was sent for election duty and was also deputed for the work relating to COVID and therefore, there is justification to claim salary. We do not want to express any opinion in that regard. We have only stated that taking into consideration the factual aspects involved in the matter, when the petitioner cannot be accommodated as Head Teacher in the school, she cannot claim salary as she had opted to remain in the school without salary. She had sought for an interim order in that fashion when she was deployed to another school where she would have been entitled to receive salary.
12. In the above circumstances, she cannot claim salary WA No.1321/2020 -:10:- until a final decision is taken in the matter. Learned Single Judge was therefore not justified in directing payment of salary to the petitioner. We therefore set aside the interim order of the learned Single Judge. The 1st respondent/petitioner shall seek for an early hearing of the matter to have a finality of the issue involved in the case.
Writ appeal is disposed of as above.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp JUDGE
WA No.1321/2020
-:11:-
APPENDIX
APPELLANT'S EXHIBITS:
ANNEXURE-A1 TRUE COPY OF LETTER NO.H2/47395/2018
DATED 31.08.2018
ANNEXURE-A2 GOVERNMENT CIRCULAR NO.109/J2/18/ G.EDN
DATED 14.06.2018
ANNEXURE A3 TRUE COPY OF GO(RT)NO.1043/2015 G.EDN
DATED 17.03.2015
ANNEXURE A4 TRUE COPY OF THE RDER
NO.A3/4131/2015/SSA DATED 22.04.2015 ANNEXURE A5 PHOTOCOPY OF THE ORDER NO.SSA2/94/2015 DATED 25.04.2015 ANNEXURE A6 TRUE COPY OF THE ORDER NO.SSA2/273/2016-I DATED 29.06.2016 ANNEXURE A7 TRUE COPY OF THE RELIEVING ORDER ANNEXURE A8 TRUE COPY OF THE ORDER NO.B1/22345/15(2) DATED 26.08.2016 ANNEXURE A9 TRUE COPY OF THE ORDER NO.B1/12328/2017 DATED 16.06.2018 RESPONDENTS' EXHIBITS:
ANNEXURE R1(a) TRUE COPY OF COVERING LETTER DATED 19.02.2020 WA No.1321/2020 -:12:- ANNEXURE R1(b) TRUE COPY OF CONTEMPT NOTICE DATED 05.06.2020 CASE (CIVIL)NO.1152/2020(WPCNO.24474/18 ANNEXURE R1(c) TRUE COPY OF THE CASE DETAILS OF COCNO.1152/2020 ANNEXURE R1(d)) TRUE COPY OF THE DAILY STATUS OF CONTEMPT CASE (CIVIL)NO.1152/2020 DATED 25.09.2020 ANNEXURE R1(e) TRUE COPY OF THE DAILY STATUS OF CONTEMPT CASE (CIVIL) NO.1152/2020 DATED 07.10.2020 ANNEXURE R1(f) TRUE COPY OF THE DAILY STATUS OF WPCNO.24474/2018 DATED 13.02.2020 ANNEXURE R1(g) TRUE COPY OF THE DAILY STATUS OF WPC NO.24474/2018 DATED 17.02.2020 ANNEXURE R1(h) TRUE COPY OF JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA DATED 15.10.2020 IN STATE OF MADHYA PRADESH V. BHERULAL IN SLP (C) DIARY NO.9217/2020 ANNEXURE R1(i) TRUE COPY OF THE ORDER DATED 01.08.2020 ISSUED BY THE TAHSILDAR, PUNALUR ANNEXURE R1(j) TRUE COPY OF THE APPENDIX OF THE STAFF FIXATION ORDER OF UPS, EDAMON FOR THE YEAR 2014-15 ISSUED BY THE 4TH APPLICANT.
ANNEXURE R1(k) TRUE COPY OF GO(P)NO.29/2016/G.EDN.
DATED 29.01.2016 ISSUED BY THE 1ST APPLICANT ANNEXURE R1(l) TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 12.4.2019 IN TRANSFER PETITION (CIVIL)NO.2191/2018. WA No.1321/2020 -:13:- ANNEXURE R1(m) TRUE COPY OF THE DAILY STATUS OF THIS HON'BLE COURT DATED 06.06.2019 IN W.A.NO.2440/2017.
ANNEXURE R1(n) TRUE COPY OF THE ORDER OF THE DISTRICT ELECTION OFFICER/DISTRICT COLLECTOR, KOLLAM DATED 06.12.2020 ANNEXURE R1(O) TRUE COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY THE PRESIDING OFFICER True Copy PS to Judge Rp