Kerala High Court
Nimisha V.S vs State Of Kerala on 11 November, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941
WP(C).No.17638 OF 2015(D)
PETITIONER/S:
NIMISHA V.S.,
AGED 30 YEARS,
W/O. ARUN T.R, L.P.S.A, L.M.L.P.S., PERUMANA,
RESIDING AT KAILAS, NAVAIKKULAM, PARAKKUNNU POST,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.B.MOHANLAL
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS,
GOVERNMENT OF KERALA, JAGATHY P.O.,
THIRUVANANTHAPURAM - 695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION,
THIRUVANANTHAPURAM - 695 001.
4 THE ASSISTANT EDUCATIONAL OFFICER,
KATTAKKADA P.O., THIRUVANANTHAPURAM, PIN 695001.
5 THE CORPORATE MANAGER, LUTHERAN SCHOOLS,
PEROORKKADA P.O., THIRUVANANTHAPURAM -695 005.
*ADDL. THE ASSISTANT EDUCATIONAL OFFICER, KILIMANOOR,
R6 KILIMANOOR P.O., THIRUVANANTHAPURAM.
*IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED
26.07.2016 IN I.A.NO.9925/16.
BY ADVS.
R1 TO R4 & R6 -SRI. JESTIN MATHEW, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11-11-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.17638 of 2015 2
JUDGMENT
This writ petition is filed by the petitioner a Lower Primary School Assistant (L.P.S.A) working with the 5th respondent Corporate Management, seeking to quash Ext.P8 order passed by the Assistant Educational Officer, Kattakkada dated 14.05.2012, whereby the transfer order of the petitioner from LMLPS, Arivarikuzhi, Kattupuram, Thiruvananthapuram District and posted as L.P.S.A in Lutheran LPS, Perumana with effect from 20.12.2010 onwards was rejected holding that the transfer of the petitioner is against the shift system lifting vacancy, and in the order of lifting system, it is mentioned that the resultant vacancies are only to be filled up by the protected teachers or thrown out teachers of the same school, and therefore, the transfer order is in violation of the above order. Being aggrieved, petitioner has preferred a revision and as per Ext.P14 order, the State Government have affirmed the order passed by the Deputy Director. It is thus challenging Exts.P8 and P14 orders, this writ petition is filed. Brief material facts for the disposal of the writ petition are as follows:
W.P.(C)No.17638 of 2015 3
2. Petitioner was appointed as L.P.S.A in L.M.L.P.S., Arivarikuzhy on 06.07.2006 in the transfer vacancy of one Smt. Shyna J.S., evident from Ext.P1.
According to the petitioner, the transfer vacancy of Smt. Shyna was approved by the educational authority and the salary was drawn. While the petitioner was continuing in the school in the post of L.P.S.A, there arose dispute between two divisions in Trivandrum Synod regarding the administration of the 5th respondent Management, one Manager so appointed by the Committee of the Synod ousted the petitioner and others from service as per an order dated 31.05.2007, produced as Ext.P2. Later, the appointment of the said person as Manager was set aside and the appointment of another Manager viz., Rev.Alfred for the period from 08.06.2005 to 07.06.2008 was approved, which was challenged by the previous Manager Rev. R. Vijayakumar in W.P.(C) No.7848 of 2005 before this Court, which was dismissed and aggrieved, the said person has preferred W.A.No.2311 of 2006 and as per Ext.P3 judgment dated 01.07.2008, the appointment of Rev. R.Vijayakumar with effect from 02.07.2007 is approved, and also held that Rev. C.H.Alfred cannot function as Manager after 19.11.2007, the date of approval of appointment of Rev. R. W.P.(C)No.17638 of 2015 4 Vijayakumar by the DPI. Therefore, according to the petitioner, the termination of the petitioner is illegal and without jurisdiction and the petitioner is declared to be a claimant under Rule 51(A) of Chapter XIV-A of the Kerala Education Rules.
3. However, due to the abolition of shift system in Lutheran L.P.S., Perumana of the 5th respondent Management an additional post was allowed during 2010- 2011, and a permanent teacher viz., Smt. Anitha R. from L.M.L.P.S, Arivarikuzhi was transferred against the additional post and the resultant vacancy in L.M.L.P.S was filled up by the 5th respondent by appointing the petitioner to the post of L.P.S.A from 20.12.2010 as per order dated 15.12.2010, evident from Ext.P4. However, petitioner entered on maternity leave from 05.07.2011 to 30.12.2011 and on the expiry of the leave, requested for appointment, and the 5th respondent posted the petitioner to L.M.L.P.S., Perumana against the existing vacancy post with effect from 20.12.2010 as per Ext.P4. The transfer of Smt. Anitha has not been approved by the Assistant Educational Officer, Kattakkada, Thiruvananthapuram, evident from the order bearing No.D/6176/2010 dated 06.06.2011 and Smt. Anitha has been re-transferred from L.M.L.P.S., Perumana to W.P.(C)No.17638 of 2015 5 L.M.L.P.S., Arivarikuzhy, retaining the lien of the petitioner in L.M.L.P.S., Perumana. The Corporate Manager appointed the petitioner to the post of L.P.S.A in L.M.L.P.S., Arivarikuzhy with effect from 01.06.2011 as per Ext.P5 order dated 01.06.2011. Ext.P4 transfer order was not approved and the 5th respondent Manager issued an order dated 14.07.2011, re-transferring Smt. Anitha to L.M.L.P.S., Arivarikuzhy, evident from Ext.P6.
4. Consequent to Ext.P4 order, the Manager issued a proposal dated 10.01.2012, requesting the Deputy Director of Education, Thiruvananthapuram to approve the appointment of the petitioner with effect from 20.12.2010, evident from Ext.P7, which was rejected by the 4th respondent as per Ext.P8 order. Even though petitioner has preferred a revision, it was rejected as per Ext.P14 order. These are the basic background facts put forth by the petitioner to secure the reliefs as are pointed out above.
5. The 2nd respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, petitioner was appointed as L.P.S.A in L.M.L.P.S, Arivarikuzhy by the W.P.(C)No.17638 of 2015 6 then Corporate Manager Rev. C.H. Alfred, with effect from 06.07.2006 against the transfer vacancy of Smt. Shyna transferred to L.M.L.P.S., Thumarichal. The transfer of Smt. Shyna was approved later by the Department and pay and allowances disbursed. But the appointment of the petitioner was not approved since senior hands were awaiting for appointment.
6. It is also submitted that, while the petitioner was continuing in the school as L.P.S.A., dispute arose between two divisions in Trivandrum Synod concerning the administration of the Management. Before the approval of appointment of the petitioner could be considered, petitioner was ousted from service by the next Corporate Manager, Rev. Vijayakumar as per order dated 31.05.2007. In the meantime, the period during which the petitioner worked as L.P.S.A at L.M.L.P.S., Arivarikuzhy was adjusted by shifting the lien of one Smt. Jeeja Bhasker as per the directions of the Director of Public Instruction, Thiruvananthapuram, as Smt. Jeeja Bhasker was found to be the eligible claimant.
7. It is also pointed out that, due to the abolition of shift system in Lutheran L.P.S., Perumana, an additional post was allowed during 2010-2011 and a W.P.(C)No.17638 of 2015 7 permanent teacher, Smt. Anitha R. from L.M.L.P.S., Arivarikuzhy was transferred against the additional post and the resultant vacancy in L.M.L.P.S., Arivarikuzhy was filled up by the 5th respondent, Manager by appointing the petitioner with effect from 20.12.2010. However, the said appointment was not approved since the resultant vacancy which arose due to the abolition of shift system ought to have been filled up by protected/retrenched teachers of the same school. As such, neither the appointment of the petitioner nor the transfer of Smt. Anitha was approved by the Department for the said reason. It was accordingly that the Manager re-transferred the petitioner with effect from 15.07.2011 to L.M.L.P.S., Perumana and Smt. Anitha to L.M.L.P.S., Arivarikuzhy.
8. It is also submitted that, the transfer of Smt. Anitha back to L.M.L.P.S., Arivarikuzhy was approved. However, the period from 10.12.2010 to 14.07.2011 was not approved, which caused a break in service of the permanent teacher, Smt. R. Anitha, who has approved service with effect from 1998 onwards. Therefore, the proposal of the Manager for shifting the lien of Smt. Anitha from L.M.L.P.S., Perumana to L.M.L.P.S., Arivarikuzhy for the period from 20.12.2010 W.P.(C)No.17638 of 2015 8 to 14.07.2011 was rejected by the Assistant Educational Officer, Kattakkada, since the petitioner was working at L.M.L.P.S., Arivarikuzhy for the said period. The 5th respondent requested the 3rd respondent Deputy Director of Education to approve the appointment of the petitioner with effect from 20.12.2010, but the same was rejected on the ground that the transfer of the petitioner is against the vacancy due to the abolition of shift system and since the resultant vacancy ought to have been filled up with protected or retrenched teachers.
9. That apart, it is submitted that, aggrieved by the order of the Department, petitioner filed W.P.(C) No.11557 of 2014 before this Court. Smt. R. Anitha filed revision petition before the Government. As per the judgment dated 25.04.2014, the 1st respondent Government was directed that needful shall be done within a period of two months from the date of receipt of a copy of the judgment. In pursuance to the compliance of judgment, 1st respondent heard the petitioner and passed an order dated 12.09.2014, directing the Director of Public Instruction to ascertain the conditions of service of the petitioner and fix her seniority if not done already and W.P.(C)No.17638 of 2015 9 accommodate her against a valid post under the Management as per the Rules in force along with the exercise as ordered in Circular No.31894/H2/13/G.Edn. dated 13.06.2014. The Government also ordered that the lien of Smt. R.Anitha at L.M.L.P.S., Perumana for the period from 20.12.2010 to 14.07.2011 shall also be suitably adjusted so as to accord her continuity of service.
10. Based on the Government Order, the DPI has issued order dated 24.10.2014 with direction to the Assistant Educational Officer, Kilimanoor, Kattakkada and Nedumangad to implement the direction in the Government Order dated 12.09.2014 evident from Ext.R2(a). It was pursuant to the compliance of the above Government Order, the Manager, Lutheran Corporate Management issued an order dated 24.02.2015, adjusting the lien of Smt. Anitha R. at L.M.L.P.S., Perumana for the period from 20.12.2010 to 14.07.2011 against the established vacancy in L.M.L.P.S., Arivarikuzhy. A clarification on the issuance of the order dated 24.02.2015 and the details of appointment of the petitioner and one Russel Mosses are called for from the Manager, evident from Ext.R2(b). But no reply has been received from the Manager till date. Thereupon, W.P.(C)No.17638 of 2015 10 direction has been given to the Assistant Educational Officer, Kattakkada and Kilimanoor in the matter. However, there also no reply has been received.
11. The Manager, as per letter dated 25.02.2015 has also reported to the Assistant Educational Officer, Kattakkada that Sri. Russel Mosses who has been working under the Management since 2005 as senior to the petitioner filed W.P.(C) No.8080 of 2014, seeking the Management not to effect fresh appointments without granting approval to Sri. Russel Mosses. The Manager had also taken the stand that a decision will be taken in the case of the petitioner on receiving the final verdict in the aforesaid writ petition filed by Sri. Russel Mosses. On 04.03.2016, 2nd respondent issued another letter, directing the Manager to implement the direction issued by the Government, failing which, action was threatened, evident from Ext.R2(c). Therefore, the sum and substance of the contention put forth by the 2nd respondent is that, neither the appointment of Smt. R. Anitha nor the petitioner could be considered since the vacancy which arose due to the abolition of shift system ought to have been filled up with protected/retrenched teachers. W.P.(C)No.17638 of 2015 11
12. I have heard learned counsel for the petitioner and the learned Government Pleader, and perused the pleadings and the documents on record.
13. The facts that are dealt with elaborately above would show that there was no vacancy for appointment of the petitioner in the post of L.P.S.A, consequent to abolition of the shift system and consequent creation of posts and the requirement of appointing the protected or retrenched teachers. The issue was considered by the State Government elaborately and it was taking into account all the attendant circumstances, Ext.P14 order was passed by the State Government. According to the Government, it was due to the indifferent attitude of the Management, a chaotic situation has occurred, rendering the approval of eligible teachers under the Management almost impossible. The petitioner's situation is one among the many similarly placed teachers under the Management. It is also evident that even though the DPI has finalized the seniority list of unapproved and eligible teachers working under the different schools of the Lutheran Management and has directed the Management not to make fresh appointment, but without heeding to the directions, appointment of fresh hands W.P.(C)No.17638 of 2015 12 were made bypassing the norms.
14. It is also clear that two different spells of appointment of the petitioner i.e., 06.07.2006 to 31.05.2007 and 20.12.2010 to 14.01.2011 at L.M.L.P.S., Arivarikuzhy cannot be approved due to the reason that during the 1st spell, the period is seen adjusted by shifting the lien of one Smt. Jeeja Bhasker and the 2 nd spell, the petitioner is seen appointed displacing a senior hand Smt. R. Anitha, whose transfer to L.M.L.P.S., Perumana could not be approved, thereby denying continuity of service to her. It was accordingly considering various issues relating to approval of the teachers under the Management, Government have issued Circular No.31894/H2/2013/G.Edn. dated 13.06.2014, directing the DPI to examine all the aspects of the pending issues related to the approval of appointments so far made by the Management, pending disposal before the various educational officers and to take a decision suitably. The Lutheran Corporate Management was directed not to make fresh appointments without obtaining prior permission of the DPI. It was thereupon that in Ext.P14, the Government directed the DPI to ascertain the conditions of service of the petitioner and fix her seniority if not done already W.P.(C)No.17638 of 2015 13 and accommodate her against a valid post under the Management, as per the Rules in force along with the exercise as ordered in the Circular specified above.
15. However, it is seen that, since there was no established vacancy with the Corporate Management, the appointment of the petitioner could not be done. On a clear analysis of Ext.P14 order passed by the State Government, it is clear that the pros and cons of the issue was considered by the Government and certain directions were issued. However, fact remains, since the protected/retrenched teachers had to be accommodated, petitioner could not secure a suitable post.
16. In that view of the matter, and taking into account the pros and cons of the issue, I am of the considered opinion that, the interference as is sought for by the petitioner to Exts.P8 and P14 so far as against the petitioner cannot be sustained, and I do not think there is arbitrariness or illegality on the part of the State Government in passing Ext.P14 order, especially due to the fact, that order was passed assigning appropriate reasons and after hearing the petitioner and other respective parties. W.P.(C)No.17638 of 2015 14
Resultantly, the writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P.CHALY JUDGE St/-13.11.2019 W.P.(C)No.17638 of 2015 15 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER.
EXHIBIT P2 THE TRUE COPY OF THE ORDER NO.38/07 DATED 31.5.2007 ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 1.7.2008 IN WA NO.2311/2006 OF THIS HONOURABLE COURT.
EXHIBIT P4 THE TRUE COPY OF THE ORDER NO.24/2010-2011 DATED 15.12.2010 ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER. EXHIBIT P5 THE TRUE COPY OF THE ORDER NO.86/2011-2012 DATED 01.06.2011 ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER. EXHIBIT P6 THE TRUE COPY OF THE ORDER NO.109/2011-2012 DATED 14.7.2011 ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE ORDER NO.153/2011-12 DATED 10.1.2012 ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER. EXHIBIT P8 THE TRUE COPY OF THE ORDER NO.D/248/2011 DATED 14.5.2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P9 THE TRUE COPY OF THE COMMUNICATION NO.55922/H1/2012/G.EDN DATED 9.11.2012 ISSUED BY 1ST RESPONDENT OT SRI.RESSEL MOSSES.
EXHIBIT P10 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P11 THE TRUE COPY OF THE HEARING NOTE DATED 16.1.2013 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P12 THE TRUE COPY OF THE ORDER NO.F1/33548/13/DPI/K.DIS DATED 11.07.2013 ISSUED BY THE 2ND RESPONDENT.
W.P.(C)No.17638 of 2015 16EXHIBIT P13 THE TRUE COPY OF THE JUDGMENT DATED 25.04.2014 IN W.P.(C)NO.11557/2014 OF THIS HON'BLE COURT.
EXHIBIT P14 THE TRUE COPY OF THE ORDER G.O. (RT)NO.3600/2014/G.EDN. DATED 12.09.2014 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P15 THE TRUE COPY OF THE CIRCULAR NO.31894/H2/13/G.EDN. DATED 13.06.2014 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P16 THE TRUE COPY OF THE PROPOSAL FOR APPOINTMENT FORWARDED BY THE 5TH RESPONDENT TO THE ASSISTANT EDUCATIONAL OFFICER, KILIMANOOR.
EXHIBIT P17 THE TRUE COPY OF THE ORDER NO.H1/252/2017/G.EDN. DATED 03.11.2017 ISSUED BY THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS/ANNEXURES:
EXHIBIT R2(A) A TRUE COPY OF THE ORDER DATED 24.10.2014 OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION.
EXHIBIT R2(B) A TRUE COPY OF THE LETTER DATED 11.11.2015. EXHIBIT R2(C) A TRUE COPY OF THE LETTER DATED 04.03.2016. ANNEXURE R6(A) A TRUE COPY OF THE LETTER DATED 19.01.2019. ANNEXURE R6(B) A TRUE COPY OF THE LETTER DATED 31.12.2018. ANNEXURE R6(C) TRUE COPY OF THE LETTER NO.28/2019 DATED 06.02.2019.