K.G. Suresh Kumar vs The State of Kerala

Alexander Thomas, J.—The petitioner claims that he had served in the 5th respondent''s aided school as Upper Primary School Assistant (U.P.S.A) in a leave vacancy for the period from 1.11.1995 to 9.1.1996. It is his further that he had later served in the said school in yet another spell of leave vacancy for the period from 23.7.1996 to 22.7.2006. It is the contention of the petitioner that the Government have granted protection to aided school teachers, who continued in service provided they had been in service as on 15.7.1997. It is therefore contented by the petitioner that as the petitioner was in service as on the said date, denial of protection to him is not correct. It is in this conspectus of these facts and circumstances that he has chosen to prefer this Writ Petition (Civil) with the following prayers:

Exhibit "(a) to the extent it denies approval for the years 2003-2004 and call for the records relating to Exhibits P9 and P13 and P8 2005-2006 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order.

(b) call for the records relating to Exhibit P5 to the extent it stipulates condition for granting approval of appointment of the Petitioner and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order.

(c) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st, 2nd 3rd and 4th Respondents to grant protection to the Petitioner considering the similar Government Orders produced in the Writ Petition.

(d) issue a writ of mandamus or other appropriate writ order or direction commanding the 4th Respondent Assistant Educational Officer, Kizhissery to draw and disburse salary and allowances due to the Petitioner in lieu of the latter''s service.

The 2nd respondent-Director of Public Instructions filed a counter affidavit counter affidavit dated 27.1.2009 and the 1st respondent-Government of Kerala has also filed a counter affidavit dated 28.12.2009 resisting the pleas and contentions of the petitioner.

The petitioner has also relied on Ext.P24 judgment rendered by this Court on 7.7.2009 in W.P.(C).No. 678/2008. In the said judgment, G.O(P).No.240/99/G.Edn. dated 29.9.1999 has been referred and the relevant portion of the said Government Order dated 29.9.1999, to the extent it is relevant to this case, reads as follows:

Subsequently implementation of the above certain Government have doubts Orders. arisen Accordingly , regarding Government are pleased to issue the following clarifications:-

14.7.1996 and All

i) aided school teachers who were in service as on those who are appointed as aided school teachers against regular vacancies during 1996-97 upto 14.7.1997 will be eligible for protection. However, teachers appointed from 15.7.1997 onwards will not be eligible for protection.

ii) Teachers who are working against regular division vacancy alone will be eligible for protection.

as per iii) clarification in para 2(i) above are retrenched during the If the aided school teachers who are eligible for protection subsequent years due to division fall, they will be reinstated in service in their parent school. The period during which they are out of service will be regularised as eligible leave without allowances.

Heard Sri. V.A.Muhammed appearing for the petitioner and the learned Government Pleader appearing for the official respondents.

Clause (i) of para 2 of G.O(P) No. 240/99/G.Edn. dated 29.9.1999 insists that all teachers who were in service as on 14.7.1996 and those who were appointed as aided school teachers against regular vacancies during 1996-97 upto 14.7.1997 will be eligible for protection and that however, teachers appointed from 15.7.1997 onwards will not be eligible for protection. Going by the averments of the petitioner, he was not working in a regular vacancy and was appointed only as against a leave vacancy for the academic year 1996-97, as he had served in a leave vacancy for the spell from 23.7.1996 to 22.7.2006, even as per the case projected by the petitioner. So it is evident that the petitioner was not in service as on 14.7.1996 in as much as he had worked in the academic year 1996-97 only from 23.7.1996 to 22.7.2006. Still further it is insisted in clause (i) of para 2 of the Government Order that the eligible claimants should have worked as aided school teachers against regular vacancies during 1996-97 upto 14.7.1997 in order to be eligible for protection and that the teachers appointed from 15.7.1997 onwards will not be eligible for protection. Indisputably the petitioner was not working in a regular vacancy as conceived in the above said provision of the Government order as he was appointed only in a leave vacancy. Yet it is to be noted clause (ii) of para 2 of the Government Order dated 29.9.1999 quoted above insists that teachers working against regular division vacancy alone will be eligible for protection. As already noted, the petitioner was working only in a leave vacancy and not a regular vacancy. Therefore, the petitioner cannot be said to be eligible to make a claim for protection in terms of G.O(P) No. 240/99/G.Edn. dated 29.9.1999.

Faced with this situation, the learned counsel for the writ petitioner submitted that there are several other Government orders as in Exts.P14 to P23, though related to similar posts like Physical Education Teacher, whereby the Government has allowed claims of protection. The learned counsel for the petitioner submits that the petitioner may be given liberty to approach the Government seeking consideration of his claim for protection on the basis of Exts.P14 to P23 and other Government orders that have been issued by the Government later and that this Court, by Ext.P24 judgment, had directed re-consideration of the claim of an incumbent based on orders as in Ext.P14 herein and other Government Orders. Since the petitioner has been remaining outside the service, it is only fair and reasonable that the petitioner is given a reasonable opportunity to agitate his claims based on such Government orders as in Exts.P14 to P23 and other Government orders, so that the Government will have a chance to consider such contentions and take a decision on the request of the petitioner based on such submissions. Accordingly, it is ordered that the petitioner will be at liberty to submit appropriate representation before the 1st respondent-State Government as indicated above, within a period of three weeks from the date of receipt of a certified copy of this judgment. The petitioner may submit such representation within the said time limit along with a certified copy of this judgment, addressed to the Government of Kerala in the General Education Department. Copies of such representation may also be given to the 4th respondent-Assistant Educational Officer, the 3rd respondent-Deputy Director of Education and the 2nd respondent-Director of Public instruction. Upon receipt of such representation by respondents 2 to 4, they may submit necessary reports regarding the submissions made by the petitioner to the 1st respondent Government in such representation, within a period of three weeks from the date of receipt of a copy of such representation. The Government, thereafter, shall afford an opportunity of hearing to the petitioner either personally or through authorised representative and after considering all relevant aspects in the matter, may consider the representation and take a decision in the matter. Final orders on the representation as above should be passed by the Government without much delay. Since the matter is pending for a long time, it is ordered that the Government may take decision on such representation within the outer time limit of four months from the date of production of a certified copy of this judgment.

The Writ Petition (Civil) stands finally disposed of. There will be no order as to costs.