Kerala High Court
Reena C.P vs The Director Of Higher Secondary ... on 18 September, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942
WP(C).No.28327 OF 2016(M)
PETITIONER:
REENA C.P.
HSST (MALAYALAM), KKV MEMORIAL PANOORHIGHER
SECONDARY SCHOOL, PANOOR,KANNUR DISTRICT-670 692.
BY ADV. SRI.R.K.MURALEEDHARAN
RESPONDENTS:
1 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM
.695001
2 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION,REGIONAL OFFICE,
KANNUR,KANNUR DISTRICT.670001
3 ADDL.R3. THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION
DEPARTMENT, TRIVANDRUM-695001.
ADDL.R3 IS IMPLEADED AS PER ORDER DATED 30.05.2019
IN IA.NO.3/2019.
R1 BY GOVERNMENT PLEADER
OTHER PRESENT:
SR. GP P.M. MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-09-
2020, THE COURT ON 18-09-2020 DELIVERED THE FOLLOWING:
W.P.(C).No.28327/2016 2
JUDGMENT
Dated this the 18th day of September 2020
1. This writ petition is filed with the following prayers:-
"i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P5 order of the 2 nd respondent dated 30.11.2015, Ext.P6 audit report to the extent of revising the approval of the petitioner and directing to refund the excess salary, Ext.P7 communication of the 2nd respondent dated 08.01.2016 and Ext.P9 staff fixation order to the extent of non sanctioning of HSST (Mal) in KKV Memorial Panoor Higher Secondary School with effect from the academic year 2008-09 onwards; And
ii) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to continue to pay salary and other allowances to the petitioner attached to the post of HSST (Mal) from November 2015 onwards with 9% interest, recoverable from 2nd respondent; And
iii) Issue such other orders as this Hon'ble Court may deem fit to grant.W.P.(C).No.28327/2016 3
iv) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exts. P14 and P15 communication by the 2nd respondent;
v)Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 2nd respondent to sanction 2014 pay revision benefits, increments from 2015 onwards, DA etc attached to the post within a time frame and further direct the 2nd respondent to refix the pensionary benefits and fowarded to the Accountant General within a time frame."
2. Heard the learned counsel for the petitioner and the learned Government Pleader.
3. The petitioner was appointed as HSST (Malayalam) in the KKV Memorial Panoor Higher Secondary School in 1988. When a HSST (Malayalam) retired, selection was conducted and the petitioner was appointed by transfer from 30.7.2008 onwards. The appointment was duly approved by the Regional Deputy Director, Kozhikode by Ext.P3 dated 7.8.2009. She retired from service on 31.5.2017. By Ext.P5 order dated W.P.(C).No.28327/2016 4 13.11.2015, the RDD, Kannur modified the approval granted to the petitioner as HSST (Junior). An audit report which is produced as Ext.P6 was relied on to support the review of the order of approval. Thereafter, by Ext.P7 proceedings dated 8.1.2016, the petitioner was required to refund the salary of HSST drawn by her from 30.7.2008. to 31.10.2015.
4. The learned counsel for the petitioner submits that it was on the basis of Ext.P8 report of the second respondent for the academic year 2008-2009 which clearly shows that there were 18 hours of work per week in Malayalam that one post of HSST had been sanctioned in the school and the petitioner was granted appointment against a retirement vacancy of HSST. It is submitted that Ext.P6 audit report and Ext.P9 proceedings of the second respondent proceed on the basis that there are only 12 periods of work per week in Malayalam for the year 2006-2007 onwards and that the HSST post could have been sanctioned only from 2011-2012 onwards and that the post was sanctioned only from 15.7.2013. It was on the W.P.(C).No.28327/2016 5 basis of Ext.P6 and P9 that Ext.P7 order has been issued. It is submitted by the petitioner that the roll strength and verified strength of the students for the year 2008-2009 would show that there were 68 students in Malayalam for Plus one and 51 students for Plus two classes. It is stated that the Government by Ext.P12 Order dated 28.3.1998, Government had sanctioned one additional division to language classes of 50 students with a margin of 10 students. It is contended that the student strength clearly justified a post of HSST from 2006-2007 onwards. It is further contended that since the petitioner had been appointed as HSST in a retirement vacancy and had been paid salary, the contention that the appointment was erroneous on the basis of an audit inspection and a verification of student strength conducted long after was an impermissible exercise. It is submitted that though the petitioner had approached the Government against the illegal action, by Ext.P14 order dated 9.3.2019 the request of the petitioner has been turned down. It is stated in Ext.P14 order that the post available in the school was only W.P.(C).No.28327/2016 6 HSST (Junior). Though it is admitted that the petitioner was appointed as HSST (Malayalam) in the retirement vacancy of Smt. Premavalli, it is stated that the post available as on the date of the petitioner's appointment was only that of HSST Junior. It is further stated that an additional batch was sanctioned in the school from 2011-2012 and that there was workload to justify the upgradation of the post as HSST from 2011-2012 onwards. It is stated that the post was sanctioned by the Government only on 15.7.2013. It is stated that though the post of HSST Malayalam was available in this school from 15.7.2013, the Manager had not reappointed the petitioner as HSST and sent up fresh appointment for approval and that therefore the petitioner had no claim for the pay and allowances of HSST till date of her retirement. By Ext. P15 proceedings, the second respondent has reiterated that it is only if the manager had appointed the petitioner as HSST after the post of HSST became available on 15.7.2013 that her appointment as HSST could have approved and pay and benefits disbursed to her.
W.P.(C).No.28327/2016 7
5. The learned counsel for the petitioner challenges the action of the respondents on the ground that she was specifically appointed against a retirement vacancy of HSST which was duly approved. It is submitted that the review of the approval by Ext.P5 was completely devoid of any jurisdiction and that the petitioner is entitled to draw the benefits of the approval duly granted to her appointment. It is further stated that even according to the respondents, a post of HSST existed in the school from 2011 onwards and that the refusal to grant the pay scale of HSST to the petitioner at least from the said date and the corresponding retirement benefits is completely illegal. It is contended that this Court in Usuvathunisa v. Asst.Educational Officer [1992 KLT 530] held that the appointment of a teacher against a post cannot be invalidated on the basis of audit objections raised by the Accountant General.
6. A counter affidavit has been placed on record by the second respondent. It is stated that the petitioner was appointed as W.P.(C).No.28327/2016 8 HSST (Malayalam) from 30.7.2008 in the retirement vacancy of Premavalli, who was working as HSST (Malayalam). It is stated that as per the staff fixation order dated 4.1.2002, there existed one post of HSST Junior (Malayalam) in the school. It is stated that as per the Government Order dated 20.11.2004 Smt.Premavalli availed all the benefits of HSST and the same were sanctioned to her. It is submitted that as per Staff Fixation Order of the school from 2002-2003 to 2013-2014, the post of HSST junior was upgraded on 15.7.2013, though workload was available from 2011-2012 onwards. It is contended that since the petitioner had been reverted by Exhibit P5 order and no fresh appointment as HSST had been affected by the Manager and sent for approval, the petitioner is entitled only for pay and pensionary benefits in the post of HSST (Junior).
7. I have considered the contentions advanced. It is evident from Exhibit P1 that the petitioner had been appointed in a retirement vacancy as HSST (Malayalam), pursuant to a W.P.(C).No.28327/2016 9 report of the selection committee dated 23.7.2008. The appointment was approved by Exhibit P3 from 30.7.2008. The petitioner was also granted the pay fixation benefits on the basis of her appointment as HSST (Malayalam) by Exhibit P4 dated 19.9.2009. The Rules in Chapter XXXII KER defines HSST as a Higher Secondary School teacher of an aided school whose work load is 15 or more periods per week per subject. It appears that on the basis of a staff fixation effected by Exhibit P9 on 24.3.2014, it was found that there were 68 and 51 students for Malayalam in classes 11 and 12 respectively in the year 2008-2009. In the year 2009-2010, the verified strength of students who opted for Malayalam were 56 and 53 respectively. However, in respect of the year 2008- 2009 and 2009-2010, only a post of HSST (Junior) is seen sanctioned in the school. In the year 2011-2012, admittedly additional courses were sanctioned and a post of HSST was available. However, the post was formally sanctioned only on 15.7.2013. It is now contented by the respondents that though the petitioner's appointment as W.P.(C).No.28327/2016 10 HSST (Malayalam) was approved, the approval was subject to a review on a staff fixation exercise being carried out. It is stated that since the petitioner stood reverted as HSST (Junior) by Exhibit P5 proceedings and the Manager had not appointed the petitioner as HSST after the post was sanctioned on 15.7.2013, the petitioner would be entitled to pension only in the reverted post of HSST (Junior).
8. Having considered the contentions advanced, I find that the petitioner had been appointed as HSST and had been granted due approvals as well. Exhibit P14 would show that it was on the basis of an audit report and Ext.P9 staff fixation that the appointment of the petitioner as HSST was reviewed and Ext.P5 order was passed.
9. Even in case Ext.P9 staff fixation order is accepted, the petitioner, who had approved service as HSST would be entitled to continue as HSST and for scale of pay in the said post at least with effect from start of the academic year 2011- W.P.(C).No.28327/2016 11 2012 when there was admittedly student's strength to justify 24 working hours per week. In view of the records of the student strength produced by the petitioner, which stand uncontroverted, I fail to see how the third respondent had come to the conclusion that there were only 12 periods of work per week in Malayalam in the school in the year 2009- 2010.
10.The petitioner's appointment had been approved as HSST on the basis of a staff fixation report which was in effect. The previous teacher, Smt.Premavalli, had also been approved as HSST and it is seen from the counter affidavit filed by the 1 st respondent that she had been granted all the benefits as per the Government Order 351/2004 Gen.Edn dated 20.11.2004. Even if the contentions of the respondents with regard to the workload are accepted in toto, there is no explanation for the discrepancies between Exhibits P8 and P9. Exhibit P8 report with regard to the availability of 18 hours of work per week is not explained in Exhibit P9, the audit report, or the counter W.P.(C).No.28327/2016 12 affidavit filed by the respondents. The availability of students is also not disputed. Exhibit P8 would show that there were 18 periods per week in Malayalam and that the post sanctioned was of HSST. However, Exhibit P9 would show that though there were 68 and 51 students in class 11 and 12 studying Malayalam, only 12 hours of work are reckoned and only a junior post is sanctioned.
11.In any view of the matter, from the academic year 2011-12 onwards there was sufficient workload, that is, 24 periods of work per week in Malayalam and the post of HSST could have been sanctioned from the said year. In the above factual situation, I am of the opinion that Exhibit P5 order by which the post had been downgraded as HSST (Junior) the pay of the petitioner was reckoned that as of HSST (Junior) till 13.7.2015 was completely unjustified.
12.In the result Exhibits P5 and P14 orders and Ext.P15 communication are set aside. The claim of the petitioner for W.P.(C).No.28327/2016 13 pay in the scale of HSST from the start of academic year 2011-12 shall be granted and her pay and pensionary benefits shall be re-fixed and appropriate benefits shall be granted within two months from the date of receipt of a copy of this judgment. The request of the petitioner for approval as HSST from 30.7.2008 shall be considered by the Government within a period of three months from the date of receipt of a copy of the judgment. Appropriate follow-up action shall be taken and the amounts found due shall be calculated and disbursed to the petitioner within a further period of two months thereafter.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.28327/2016 14 APPENDIX PETITIONER'S EXHIBITS:
EXT.P1 A TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 24.07.2008 EXT.P2 A TRUE COPY OF THE ORDER OF APPOINTMENT IN FORM 27 BY THE MANAGER DATED 30.07.2008 EXT.P3 A TRUE COPY OF THE ORDER OF APPROVAL OF THE RDD, KOZHIKODE DATED 07.08.2009 EXT.P4 A TRUE COPY OF THE PROCEEDINGS OF THE RDD, KOZHIKODE DATED 19.09.2009 EXT.P5 A TRUE COPY OF THE ORDER DATED
13.11.2015 EXT.P6 A TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT REPORT OF THE SCHOOL.
EXT.P7 A TRUE COPY OF THE COMMUNICATION DATED
08.01.2016
EXT.P8 A TRUE COPY OF THE REPORT OF THE 2ND
RESPONDENT FOR THE ACADEMIC YEAR 2008-
09
EXT.P8(A) A TRUE COPY OF THE
GO(MS)NO.398/2002/G.EDN DATED
29.11.2002
EXT.P9 A TRUE COPY OF THE RELEVANT PAGES OF
THE STAFF FIXATION ORDER ISSUED BY THE
2ND RESPONDENT DATED 24.03.2014
EXT.P10 A TRUE COPY OF THE SALARY BILL FOR THE
MONTH OF NOVEMBER AND THE COMMUNICATION
RETURNING THE BILL.
W.P.(C).No.28327/2016 15
EXHIBIT P11 TRUE COPY OF THE REPORT OF THE VERIFIED
STRENGTH AND ROLL STRENGTH OF PLUS ONE
DURING 2008-09.
EXHIBIT P11(A) TRUE COPY OF THE REPORT OF THE VERIFIED
STRENGTH AND ROLL STRENGTH OF PLUS TWO
DURING 2008-09.
EXHIBIT P12 A TRUE COPY OF THE ORDER DATED
28.03.1998.
EXHIBIT P13 A TRUE COPY OF THE PROCEEDINGS RELEVANT
PAGE OF GO(MS)NO.192/2005 G.EDN DATED
23.06.2005.
EXHIBIT P14 A TRUE COPY OF THE GO(ORD)
NO.931/2019/G.EDN DATED 09.03.2019.
EXHIBIT P15 A TRUE COPY OF THE COMMUNICATION FROM
THE 2ND RESPONDENT DATED 12.04.2019.
EXHIBIT P16 A TRUE COPY OF THE VERIFICATION REPORT
ISSUED BY THE ACCOUNTANT GENERAL.
EXHIBIT P17 A TRUE COPY OF THE CERTIFICATE ISSUED
BY THE PRINCIPAL OF THE SCHOOL DATED
16.05.2019.
True copy
PS to Judge