Kerala High Court
Fr.Somy Mathew vs The State Of Kerala on 12 March, 2020
Author: S.V.Bhatti
Bench: S.V.Bhatti
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941
WP(C).No.27200 OF 2019(Y)
PETITIONER/S:
FR.SOMY MATHEW
AGED 50 YEARS
S/O. K.M MATHEW, KUTTIYANICKAL HOUSE, TEEKOY P.O,
KOTTAYAM 680 580
(HIGHER SECONDARY SCHOOL TEACHER(JUNIOR-SYRIAC) HOLY
CROSS HIGHER SECONDARY SCHOOL, CHERPUNKAL)
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION (T), GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 THE DIRECTOR,
GENERAL EDUCATION , JAGATHY, THIRUVANANTHAPURAM 695
014
3 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, OFFICE OF THE REGIONAL
DEPUTY DIRECTOR, KOTTAYAM 686 001
4 THE CORPORATE MANAGER,
THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALAI,
SHALOM PASTORAL CENTRE, PALA 686 575, KOTTAYAM
DISTRICT
5 THE PRINCIPAL,
HOLY CROSS HIGHER SECONDARY SCHOOL, CHERPUNKAL 686
584, KOTTAYAM DISTRICT
R1-3 BY GOVERNMENT PLEADER
R4-5 BY ADV. SRI.S.JAYAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.03.2020, ALONG WITH WP(C).27526/2019(M), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).Nos.27200 & 27526 OF 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941
WP(C).No.27526 OF 2019(M)
PETITIONER/S:
FR.JOSEPH. E. J.,
AGED 51 YEARS
S/O. JOSEPH CHACKO, EZHUPARAYIL HOUSE, POOVARANY
P.O. PAIKA, KOTTYAAM (HIGHER SECONDER SCHOOL
TEACHER (JUNIOR SYRIAC), ST. MARYS HIGHER
SECONDARY SCHOOL, BHARANANGANAM).
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION (T), GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION
(FORMERLY DIRECTOR OF HIGHER SECONDARY EDUCATION),
OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM 695 014.
3 THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, OFFICE OF THE REGIONAL
DEPUTY DIRECTOR, KOTTAYAM 686 001.
4 THE CORPORATE MANAGER,
THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF
PALAI, SHALOM PASTORAL CENTRE, PALA, 686 575,
KOTTAYAM DISTRICT.
5 THE PRINCIPAL,
ST. MARYS HIGHER SECONDARY SCHOOL, BHARANANGANAM
686 578, KOTTAYAM DISTRICT.
R1-3 BY GOVERNMENT PLEADER
R4-5 BY ADV. SRI.S.JAYAKRISHNAN
WP(C).Nos.27200 & 27526 OF 2019
3
SR GP P.M. MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.03.2020, ALONG WITH WP(C).27200/2019(Y), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.27200 & 27526 OF 2019
4
JUDGMENT
[ WP(C).27200/2019, WP(C).27526/2019 ] Dated this the 12th day of March 2020 Heard Advocate Subhash Chand S. for petitioners, Senior Government Pleader P.M. Manoj for respondent nos. 1 to 3 and Advocate S. Jayashankar for respondent nos. 4 and 5.
2. The petitioners are approved Higher Secondary School Teachers (Junior-Syriac)(HSST) in Holy Cross Higher Secondary School Cherupunakkal/5th respondent. The circumstances relevant for disposing of these two writ petitions are substantially similar and the prayers are against inaction of respondent nos.2 and 3 in considering the proposals forwarded by 4th and 5th respondents for upgrading the posts of Higher Secondary School Teacher (Junior-Syriac) which are held by petitioners, as Higher Secondary School Teacher (Syriac).
3. The case of petitioners is that the workload in the subject school has exceeded 15 periods per week to each one of the petitioners WP(C).Nos.27200 & 27526 OF 2019 5 and the Director of General Education is under statutory obligation to upgrade the post of Higher Secondary School Teacher (Junior-Syriac) as Higher Secondary School Teacher (Syriac). Respondent nos. 3 to 5 through Exts.P11, P12, P13 and P14 have moved proposals for upgradation of the existing posts as noted above. The 2nd respondent is not taking action as is deemed obligatory in this behalf. Hence the present writ petitions are filed substantially complaining against inaction of 2nd respondent in considering and passing orders on the proposals pending in this behalf.
4. The 1st respondent has filed counter affidavit and the operative portion on material details by referring to which the petitioners pray for upgradation of the post in which they are working are admitted and for convenience this Court prefers to excerpt the relevant portion from counter affidavit hereunder:
"As per existing rules the number of students of second language up to 60 classes can be considered as one batch and the workload of one batch is six periods per week. If the number of students lies between 61 to 120 it can be taken as two batches. So the workload of Syriac language for the academic year 2012-13 is 18 periods per week and it is 24 periods per week for the academic year from 2013-14 to 2018-19. There is sufficient periods for the WP(C).Nos.27200 & 27526 OF 2019 6 upgradation of the post of HSST (Syraic) to HSST. As a matter of fact, the Government have created only the post of HSST (Junior-Syriac) in Holy Cross HSS, Cherupunnakal, Kottayam. The 3rd respondent forwarded proposal for the same to the 2nd respondent, as Government is the only authority to upgrade or create new HSST Junior/HSST post based on the work load."
5. In paragraph 8 of the counter affidavit it is further stated that the Government have made it clear that till regular posts are created, classes are conducted by the Guest Lecturers on Daily Wage basis. In the 4th respondent-School students are studying Malayalam, Hindi and Syriac as second language. For upgrading the language teachers in each subject, student strength has to be verified academic year wise. Teachers from each subject thereby seek upgradation. Once upgradation is granted to all existing posts, huge loss to Government exchequer occasions. There are instances that after getting upgradation there will be considerable loss of student strength in the subject concerned. After getting upgradation the Management will be trying for the other language subjects to be upgraded. Though batches were granted, posts were not sanctioned. Then this respondent has to verify with regard to the number of students who WP(C).Nos.27200 & 27526 OF 2019 7 opted for Syriac, from which academic year and the number of students studying the subject. It is also to be considered when and how many additional batches to Science, Commerce and Humanities were granted to the School. If permission granted, how many students opted to study Syriac is to be verified. It is verified before upgradation order is passed, from which year plus two batches were sanctioned to the School and whether Syriac was also taught from that date. These details have to be ascertained and verified on the basis of the report of the information, communication and technology cell. After the procedural formalities are completed, or, in other words, the criteria stipulated by this respondent is fulfilled then only upgradation of the post of HSST (Junior-Syriac) to HSST (Syriac) in the 4 th respondent School with prospective effect can be granted.
6. Mr. Manoj firstly has referred to the rule position and also that if the classes exceed 15 per week the existing post is required to be upgraded by Government. He has objected to the claim of petitioners for automatic consideration and upgradation of the posts, in WP(C).Nos.27200 & 27526 OF 2019 8 which petitioners are working, by pointing to the court the objections in paragraph no. 8 of the counter affidavit.
7. This Court, therefore, with a view to finding out the stand of respondent nos.4 and 5 vide order dated 04.03.2020 directed respondent nos. 4 and 5 to file counter affidavit and/or produce the record on the subject. Respondent nos. 4 and 5 have filed counter affidavit and along with the counter affidavit the Manager of 4th respondent-School filed declaration to the effect that the upgradation will not result in a claim for creating HSST (Junior-Syriac) post(s) in the School. As the thrust of objection of respondent nos. 1 to 3 is that the upgradation may result in additional financial burden etc. this Court directed the Corporate Manager to file counter affidavit adverting to all these aspects specifically. The counter affidavit states that on account of upgradation, no new post in HSST (Junior-Syriac) will arise and there will not be financial burden on the exchequer. The declaration and the statement made in the counter affidavit are taken on file and accepted.
8. Keeping in view the above circumstances the writ petitions WP(C).Nos.27200 & 27526 OF 2019 9 stand disposed of by this judgment:
(a) Petitioners, by referring to the correspondence on the subject between the Corporate Manager on one hand and 2 nd and 3rd respondents on another hand which resulted in final recommendation to 1st respondent, are given liberty to file additional representation accompanied by a copy of this judgment before 1st respondent.
(b) The petitioners may refer to and rely on the judgment of this Court reported in State of Kerala v. K.V. Sreejith for the 1 proposition that upgradation ought not to be equated with creation of post and in the case on hand, the entire endeavour of the petitioners and the School is for upgradation, by satisfying the applicable criterion to the post of HSST. The reported judgment is permitted to be enclosed with additional representation for consideration and decision by respondents 1 to
3.
(c) The 1st and 2nd respondents, within three months from the 12019 (2) KHC 686 WP(C).Nos.27200 & 27526 OF 2019 10 date of receipt of copy of representation and the judgment in the writ petition, take decision on the request of petitioners and the School for upgrading the present posts of HSST and communicate decision to petitioners and the school. The present consideration, as stated by petitioners themselves, shall not result to exchequer additional financial burden, for the petitioners have already reached the maximum scale of pay in the cadre.
(d) Petitioners are given opportunity of hearing before decision is taken.
Sd/-
S.V.BHATTI JUDGE JS/jjj WP(C).Nos.27200 & 27526 OF 2019 11 APPENDIX OF WP(C) 27200/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF APPROVAL DATED 15-06-2003 THUS ISSUED BY RESPONDENT NO.2
EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO HOLY CROSS HIGHER SECONDARY SCHOOL, CHERPUNKAL FOR THE ACADEMIC YEAR 2006-07 TO 2012 EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO HOLY CROSS HIGHER SECONDARY SCHOOL, CHERPUNKAL FOR THE ACADEMIC YEAR 2013,2013-14 TO 2014-15 EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO HOLY CROSS HIGHER SECONDARY SCHOOL, CHEREPUNKAL FOR THE ACADEMIC YEAR 2015-16 TO 2016-17 EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO HOLY CROSS HIGHER SECONDARY SCHOOL, CHERPUNKAL FOR THE ACADEMIC YEAR 2017-2018 TO 2018-19 EXHIBIT P6 TRUE COPY OF THE RULING OF THIS HON'BLE COURT IN STATE OF KERALA AND OTHERS V. K.V SREEJITH AND OTHERS (2019(2) KHC 686) EXHIBIT P7 TRUE COPY OF THE REQUEST DATED 13-09-2012 BY THE RESPONDENT NO. 5 BEFORE RESPONDENT NO 3 EXHIBIT P8 TRUE COPY OF THE REQUEST DATED 25-10-2014 BY THE RESPONDENT NO. 5 BEFORE RESPONDENT NO. 3 EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 08- 12-2014 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 3 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 08- 05-2015 SUBMITTED BY RESPONDENT NO 4 BEFORE RESPONDENT NO 3 WP(C).Nos.27200 & 27526 OF 2019 12 EXHIBIT P11 TRUE COPY OF THE RECOMMENDATION DATED 10- 06-2015 MADE BY RESPONDENT NO. 3 TO RESPONDENT NO. 2 EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 16- 01-2016 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 3 AND RESPONDENT NO. 1 EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 07- 02-2019 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 3 AND RESPONDENT NO. 1 EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 25- 02-2019 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO. 1 RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(A) A TRUE PHOTOCOPY OF THE DECLARATION DATED 05.03.2020 ISSUED BY THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALAI.
WP(C).Nos.27200 & 27526 OF 2019 13 APPENDIX OF WP(C) 27526/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF APPROVAL DATED 19.7.2002 ISSUED BY RESPONDENT NO. 2 EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO ST. MARYS HIGHER SECONDARY SCHOOL, BHARANANAGANAM FOR THE ACADEMIC YEARS 2012-2013 TO 2014-2015.
EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO ST. MARYS HIGHER SECONDARY SCHOOL, BHARANANGANAM FOR THE ACADEMIC YEAR 2015-2016 TO 2016-2017.
EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER PERTAINING TO ST. MARYS HIGHER SECONDARY SCHOOL, BHARANANGANAM FOR THE ACADEMIC YEAR 2017-2018 TO 2018-2019.
EXHIBIT P5 TRUE COPY OF THE RULING OF THIS HONBLE COURT IN STATE OF KERALA AND OTHERS V. K.V. SREEJITH AND OTHERS (2019 (2) KHC
686).
EXHIBIT P6 TRUE COPY OF THE REQUEST DATED 7.9.2012 BEFORE THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, ERNAKULAM.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 8.1.2014 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 3 EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 8.5.2015 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 3 EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 8.5.2014 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 3 EXHIBIT P10 TRUE COPY OF THE RECOMMENDATION DATED 19.6.2017 MADE BY RESPONDENT NO. 3 BEFORE RESPONDENT NO. 2 EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED WP(C).Nos.27200 & 27526 OF 2019 14 7.2.2014 SUBMITTED BY RESPONDENT NO. 4 BEFORE RESPONDENT NO. 1 RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(A) A TRUE PHOTOCOPY OF THE DECLARATION DATED 05/03/2020 ISSUED BY THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALAI.