Kerala High Court
Unknown vs By Advs on 30 November, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
WP(C).No.15019 OF 2020(B)
PETITIONER
SIBIL JACOB, AGED 44 YEARS, D/O.V.O.CHACKO,
HIGHER SECONDARY SCHOOL TEACHER (CHEMISTRY),
CATHOLICATE HIGHER SECONDARY SCHOOL,
PATHANAMTHITTA - 689 645.
BY ADVS.
SRI.S.PRASANTH (AYYAPPANKAVU)
SMT.VARSHA BHASKAR
RESPONDENTS :-
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
(GENERAL EDUCATION), SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF GENERAL EDUCATION
JAGATHI, THIRUVANANTHAPURAM - 695 014.
3 REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCTION, CIVIL STATION,
B2 BLOCK, MALAPPURAM - 676 505.
4 CATHOLICATE & M. D. SCHOOLS
(CORPORATE MANAGEMENT), DEVALOKAM,
KOTTAYAM - 686 004,
REPRESENTED BY CORPORATE MANAGER.
BY SRI.P.M.MANOJ, SR.GOVERNMENT PLEADER
R4 BY ADV. SRI.ROSHEN.D.ALEXANDER
R4 BY ADV. SMT.TINA ALEX THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.15019 OF 2020(B)
-: 2 :-
JUDGMENT
Dated this the 30th day of November 2020 This writ petition is filed seeking the following reliefs :-
"i) To issue a writ of mandamus or any other appropriate writ or order directing the 3rd respondent to approve the appointment of the petitioner as Higher Secondary School Teacher (Chemistry) with effect from the date of her appointment as per Ext.P5.
ii) To issue a writ of mandamus or any other appropriate writ or order directing the 3rd respondent to refix the salary of the petitioner in the post of Higher Secondary School Teacher (Chemistry) and to disburse the salary and other benefits due to her with interest at the rate of 10% p.a."
2. Heard the learned counsel for the petitioner and the learned Government Pleader.
3. The petitioner was appointed as HSST Junior (Chemistry) in one of the schools managed by the 4 th respondent on 20.12.2011 by Ext.P1. The petitioner's appointment was approved with effect from the said date. Thereafter, by Ext.P4, the petitioner was appointed as HSST (Chemistry) in the same school with effect from 23.2.2013. Later by Ext.P5, the petitioner was again appointed as HSST (Chemistry) with effect from 16.7.2013. The appointment of the petitioner was rejected on the ground that there were senior claimants and that the petitioner could not have been appointed as HSST (Chemistry) in the light of the fact that senior claimants under WP(C).No.15019 OF 2020(B) -: 3 :- the management had a claim for the same. It is submitted by the learned counsel for the petitioner that two senior claimants, that is, Smt.Helan Skariah and Sri.Sibi M. David had submitted their relinquishment for the appointment as HSST (Chemistry). It is stated that the relinquishment letter submitted by Smt.Helan Skariah was accepted. However, the relinquishment of Sri.Sibi M. David was rejected by the 3rd respondent by Ext.P8 proceedings dated 26.4.2018. Consequently, on the ground that the relinquishment of Sri.Sibi M. David was not accepted, the petitioner's appointment as HSST (Chemistry) was also not approved. The petitioner preferred a representation seeking approval of appointment as also the acceptance of the relinquishment submitted by Sri.Sibi M. David. Ext.P9 judgment was also obtained by the petitioner seeking the consideration of Ext.P5 representation by the Government. It appears that the entire issue was considered by the Government and Ext.P10 order was issued on 24.6.2019. After considering the factual aspects of the matter, the issue with regard to temporary relinquishment of appointment submitted by Sri.Sibi M. David was considered by the Government. It was found that the appointment as HSST is a by-transfer appointment and that therefore, there is no legal impediment to the temporary relinquishment of such appointment for a period of one year as has been done by Sri.Sibi M. WP(C).No.15019 OF 2020(B) -: 4 :- David from 23.2.2013. It was, therefore, held that since the seniors had relinquished the appointment, the petitioner's appointment as HSST (Chemistry) from 23.2.2013 is liable to be approved on a notional basis and on scale of pay of HSST with effect from 16.7.2013. The RDD was directed to take appropriate steps to approve the appointment. However, by Exts.P11 and P12 communications, the RDD had required the copy of the relinquishment letter of Sri.Sibi M. David and had refused to approve the appointment of the petitioner on the ground that the relinquishment letter had not been submitted.
4. The learned counsel for the petitioner submits that Ext.P8 order passed by the 3 rd respondent would show that the issue of relinquishment submitted by Sri.Sibi M. David had been considered by the RDD and orders had been passed declining such approval. The issue of rejection of relinquishment of Sri.Sibi M. David was taken up by the petitioner in the representation before the Government, which was directed to be considered by Ext.P9 judgment. In Ext.P10, the issue of temporary relinquishment by Sri.Sibi M. David had been considered and it was found that such temporary relinquishment of a by-transfer appointment as HSST is possible. There was a clear direction in Ext.P10 to approve the relinquishment of Sri.Sibi M. David from 23.2.2013 onwards, for a period of one year. There was further direction contained in Ext.P10 to approve the appointment of WP(C).No.15019 OF 2020(B) -: 5 :- the petitioner notionally from 23.2.2013 and with monetary benefits from 16.7.2013. It is also not in dispute that the relinquishment by Smt.Helan Skariah had already been accepted by the department. If that be so, the only issue that remains is acceptance of the relinquishment of Sri.Sibi M. David and the approval of the appointment of the petitioner as directed in Ext.P10. The contention raised by the respondents that the relinquishment of Sri.Sibi M. David had not been duly forwarded by the manager cannot be accepted in view of the fact that Ext.P8 would show that the question of temporary relinquishment of Sri.Sibi M. David had been considered by the 3rd respondent and an adverse order has been passed thereon. Ext.P8 order dated 26.4.2018 was also an issue in Ext.P10 before the Government.
5. In the above view of the matter, the 3rd respondent is duty bound to carry out the directions contained in Ext.P10 order of the Government. In case the 4 th respondent has not forwarded a copy of the relinquishment of Sri.Sibi M. David, the same shall be forwarded forthwith by the 4th respondent to the 3 rd respondent. The 3rd respondent shall pass immediate orders approving the relinquishment of Sri.Sibi M. David dated 23.2.2013 as directed in Ext.P10. Consequential orders of approval of the petitioner's appointment with effect from 23.2.2013 with notional effect and with monetary benefits WP(C).No.15019 OF 2020(B) -: 6 :- from 16.7.2013 shall also be passed by the 3 rd respondent without any further delay. Orders as directed above shall be passed within a period of four weeks from the date of receipt of a copy of this judgment. The monetary benefits due to the petitioner shall also be calculated and paid within a period of two months thereafter.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE Jvt/1.12.2020 WP(C).No.15019 OF 2020(B) -: 7 :- APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO.HSS.9/1367/11 DATED 20.12.2011 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF GO(RT) NO.4635/2015/G.EDN. DATED 01.10.2015 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER NO.G/4129/14/RDD/MLPM/HSE DATED 27.01.2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF ORDER NO.HSS.9/254/14 DATED 23.02.2013 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF ORDER NO.HSS.9/254/14 DATED 16.07.2013 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 25.07.2017 OF THIS HON'BLE COURT IN WP(C) NO.23345/2017.
EXHIBIT P7 TRUE COPY OF GO(RT) NO.287/2018/G.EDN. DATED 18.01.2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF ORDER NO.G/6505/2014/RDD/HSE/MLPM DATED 26.04.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 10.07.2018 OF THIS HON'BLE COURT IN WP(C) NO.22938/2018.
EXHIBIT P10 TRUE COPY OF GO(RT) NO.2509/2019/GEDN. DATED 24.06.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P11 TRUE COPY OF LETTER NO.G/7368/18/RDD/HSE/MLPM DATED 01.10.2019 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P12 TRUE COPY OF LETTER NO.G/7368/18/RDD/HSE/MLPM DATED 30.12.2019 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE SENIORITY LIST OF HSST(JR) CHEMISTRY AS ON 16.7.2013 UNDER THE CORPORATE EDUCATION AGENCY OF 4TH RESPONDENT.