S.B.SABHEESH v. THE STATE OF KERALA

SRI. BIJOY CHANDRAN, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3091 OF 2015 2 P.V.KUNHIKRISHNAN, J. ------------------------------ W.P.(C)No. 3091 of 2015 ---------------------------------------------- Dated this the 09th day of January, 2024 JUDGMENT Petitioner was appointed in the 5th respondent School as Part-time Sanskrit teacher with effect from 01.06.2010 against a retirement vacancy. Ext.P1 is the appointment order. In the meanwhile, it is submitted that, after realising the mistake linked with the appointment order, the Manager issued Ext.P2 appointment order appointing the petitioner as full time instead of part time. According to the petitioner, in 2010-11, the School was sanctioned with 5 UPSA posts and one post of Sanskrit. Though the petitioner was appointed as Sanskrit teacher from

01.06.2010, she got approval only with effect from

01.06.2011. Aggrieved by the same, the Manager filed an WP(C) NO. 3091 OF 2015 3 appeal before the District Educational Officer. But the decision of the Assistant Educational Officer was confirmed. It is the case of the petitioner that, he was permitted to impart Sanskrit as full time teacher from the date of appointment and the full time post was created in the School by way of Group 'C' diversion from the year 1976 onwards. Exts.P3 and P4 are the staff fixation orders of 1976 and 1982. It is submitted that, once full time post is created by way of Group 'C' diversion such post can not be re-converted as part time and treated as protected. Petitioner relied on Ext.P5 Government Order. The Director of Public Instruction and the Government have issued orders restoring full time posts against retirement vacancies from the date of their appointments is the submission. Exts.P6, P6(a) P6(b), P6(c) and P6(d) were produced to prove the same. According to the petitioner, he has been offering his service as full time Sanskrit WP(C) NO. 3091 OF 2015 4 teacher covering 15 periods of work per week since

01.06.2010. Ext.P7 is the certificate issued by the Headmistress of the School. Hence it is submitted that there is no embargo to approve the appointment of teachers against the retirement, promotion, death and leave vacancies before and after the academic year 2010 and the Government have unambiguously declared so is the submission. Hence the petitioner filed a revision petition to the Government against the order of the Director of Public Instruction. But without adverting to the relevant factual position, the Government issued Ext.P8 order dismissing the revision, is the submission. Aggrieved by the same, this Writ petition is filed.

2. Heard the learned counsel appearing for the petitioner and the learned Government Pleader.

3. The petitioner is mainly challenging Ext.P8 order. This Court perused Ext.P8 order. It will be beneficial to WP(C) NO. 3091 OF 2015 5 extract the relevant portion of Ext.P8 order: “3. Government have examined the matter in detail with the relevant rules and orders in force. The appointment of Shri.Sabheesh S.B was approved with effect from 01/6/2011 on the basis of the request of the Manager of the school to reconsider the appointment made by him in respect of Shri.Sabheesh S.B. in the light of the approval of senior appointees with effect from 01/6/2011 as per G.O. (P)No.199/2011/G.Edn dated 01/6/2011. As per Kerala Education (Amendment) Rules, 2014 the prior service of teachers whose appointment was approved with effect from 1/6/2011 cannot be reckoned for any service benefit. Hence the request contained in the Revision Petition read 1st paper above cannot be considered.

4. The Revision Petition read 1st paper above is disposed of as above in compliance with the directions contained in the judgment read 2nd paper above.”

4. I am of the considered opinion that the Government has not considered the issue raised by the petitioner. The contention of the petitioner is that, once full time post is created by way of Group 'C' diversion, such post can not be reconverted as part time post. This Court WP(C) NO. 3091 OF 2015 6 in the judgment dated 25.07.2023 in W.P. (C)No.32219/2015 considered a similar issue. It will be better to extract the relevant portion of the above judgment. “7. Having considered the contentions advanced, I notice that Ext.P2 Government Order proceeds on the assumption that only two specialist periods were available for each class in the school and periods have already been diverted for full time benefits for Urdu and Arabic. Even if that be so, I notice that it is the specific case of the petitioner that the petitioner had been appointed in a retirement vacancy of Sri.T.Dasan, who had been granted the full time benefits on Group C diversion. It is stated in Ext.P2 also that the petitioner was appointed as Full Time Sanskrit Teacher with effect from 5.6.2006 in the retirement vacancy of T.Dasan, who was in receipt of full time benefit. It is further stated that the post of Sanskrit Teacher was approved as full time upto 1992-'93 through Group C diversion and thereafter converted as part time and given the full benefit by Government Order dated 2.5.1973. It is, therefore, evident that the post of Sanskrit Teacher was approved as full time on the basis of Group C diversion and the post was in existence as a full time. In the above factual situation and in view of the fact that the petitioner WP(C) NO. 3091 OF 2015 7 specifically contends that there were 54 periods for PT, Music and Drawing and Craft in the UP Section of the school for the year 2006-'07 and the staff fixation order does not show that any specialist teacher was in service in the school at the relevant time, I am of the opinion that the petitioner is entitled to the reliefs as sought for. In the above view of the matter, Ext.P2 Government Order is set aside. There will be a direction to the respondents to grant the petitioner full time benefits as Sanskrit Teacher from 5.6.2006 with attendant benefits. Appropriate orders shall be passed, in accordance with law, within a period of three months from the date of receipt of a copy of this judgment. The benefits shall also be calculated and released to the petitioner within a period of three months thereafter. This writ petition is ordered accordingly.” In the light of the above decision, I am of the considered opinion that the Government has to reconsider the matter. Therefore, this Writ petition is disposed of in the following manner: i. Ext.P8 is set aside. ii. The 1st respondent is directed to reconsider the matter WP(C) NO. 3091 OF 2015 8 after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a stamped certified copy of this judgment. iii. While deciding the matter, the 1st respondent will consider the applicability of the dictum laid down by this Court in judgment dated 25.07.2023 in W.P. (C)No.32219/2015. Sd/- DM P.V.KUNHIKRISHNAN JUDGE WP(C) NO. 3091 OF 2015 9 APPENDIX OF WP(C) 3091/2015 PETITIONER EXHIBITS EXT.P1.TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1/6/2010. EXT.P2.TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 11/10/2014. EXT.P3.TRUE COPY OF THE STAFF FIXATION ORDER 1976-77 DATED 15/7/1976. EXT.P4.TRUE COPY OF THE STAFF FIXATION ORDER 1982-83 DATED 15/7/1982. EXT.P5.TRUE COPY OF THE G.O.(MS) NO.371/2000/G.EDN DATED 13/11/2000 OF THE GOVERNMENT EXT.P6.TRUE COPY OF THE ORDER NO.RA (4)/85813/2010 DATED 23/3/2011 OD THE 2ND RESPNDENT DPI/D.DIS EXT.6(A).TRUE COPY OF THE G.O. (RT).NO.2020/12/G.EDN. DATED 2/5/2012 OF THE GOVERNEMNT EXT.P6(B).TRUE COPY OF THE G.O. DATED (RT).NO.4975/2011/G.EDN. 10/11/2011 OF THE GOVERNEMNT EXT.P6(C).TRUE COPY OF THE LETTER 72037/E2/2011/G.EDN. DATED 8/6/2012 OF THE GOVERNEMNT EXT.P6(D).TRUE COPY OF THE ORDER NO.D.DIS RA(4)/43053/11/DPI DATED 1/10/2011 OF THE 2ND RESPONDENT EXT.P7.TRUE COPY OF THE CERTIFICATE WP(C) NO. 3091 OF 2015 10 ISSUED BY THE HEADMDISTRESS OF THE SCHOOL DATED 15/10/2014. EXT.P8.TRUE COPY OF THE G.O. (RT).NO.5521/14/G.EDN. DATED 11/2/2014 OF THE GOVERNEMNT EXT.P9.TRUE COPY OF THE JUDGMENT IN WA NO.333/2008 DATED 8/12/2009 OF THIS COURT. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE