Raji Joseph Upper Primary School Assistant vs State Of Kerala

Gopinath P, J

The petitioner was appointed as U.P.S.A in the school managed by the 5th respondent against an anticipated additional vacancy for the year 1995-1996. This appointment was not approved. For the period from 1995 to 2005, the writ petitioner worked against a leave vacancy. This service was approved. During 2005-2006 one Remani who was the juniormost U.P.S.A working against the regular post became surplus due to the reduction of a post and was shifted to the leave vacancy in which the petitioner was working as a result of which the petitioner was retrenched. The petitioner claimed protection under the applicable Government Orders on the ground that she had worked against a leave vacancy for nearly 10 years. The claim made by the writ petitioner for protection resulted in several rounds of litigation before this court. Finally, through the judgment dated 20-03-2013 in W.P (C) No.12192/2012 (Ext.P.13) this court came to the definite conclusion that the writ petitioner is not entitled to protection. It was held as follows:-

"4. Though the petitioner challenges various orders passed by the educational authorities rejecting her request for appointment on a regular basis, in so far as the Government had already taken a decision after directions issued by this Court on several occasions, I do not think that it would be possible for the petitioner to seek any relief in the matter. However, the learned counsel for the petitioner submits that if Government includes the petitioner in the teachers bank prepared by it, definitely, the petitioner being a person who had served the school for such a long period will be entitled to the service benefits based on such extended service. ......."

"6. ....... That being the situation, apparently in Ext.P25 order the Government had not considered the claim of the petitioner to be included in the teachers bank. In such circumstances, it is all the more necessary that the Government has to consider the matter regarding the petitioner's name to be included in the teachers bank in addition to the benefits that she had obtained as per Ext.P25.

In the result, the writ petition is disposed of as follows:

(i) The petitioner shall submit a representation to include herself in the teachers bank based on the relevant Government orders within a period of one month from today and the Government shall consider and pass appropriate orders as early as possible.

(ii) Until consideration of the matter by the Government, the petitioner should be permitted to work in the school without drawing any salary."

The claim of the petitioner for inclusion in the teacher's package was also rejected by the Government through Ext.P.14 order dated 06-11-2013. This writ petition was therefore filed challenging Ext.p.14 and to hold that the petitioner is entitled to be included in the teacher's package. The claim for protection is again raised. The petitioner also seeks to declare that the denial of benefits of protection to persons who worked in a leave vacancy is arbitrary and unconstitutional and against the provisions of the Kerala Education Act and the Rules framed thereunder.

The learned counsel for the writ petitioner has taken me through the various grounds raised in the writ petition and has pointed out that the petitioner was subjected to severe injustice in the matter of denial of protection. He very fairly states that the claim for inclusion in the teachers' bank may not survive in as much as the petitioner had been subsequently appointed against a regular vacancy.

The learned Government Pleader has referred to the counter affidavit dated 03-09-2014 (filed in the amended writ petition) to contend that the petitioner does not, in the facts and circumstances of the case, have a claim for protection or for inclusion in the teachers' bank as those benefits are available only to teachers who were working in the regular vacancies and not against leave vacancies.

I have considered the contentions raised. I believe that the petitioner's claim for protection cannot be examined in this writ petition, as that claim was considered and specifically rejected by Ext.P13 judgment which has admittedly become final. Even if I were to consider Ext.P.13 as not being conclusive in respect of the claim for protection, I must note that a Division Bench of this court in D.E.O., Kannur and others v. A.V. Sathyabhama and others; [2016 (4) KHC 911] has held, on an interpretation of various Government orders granting the benefit of protection that the conditions for grant of protection are that the teacher concerned should have been appointed on or before 14-07-1997 and that such appointment should have been against regular vacancies. The petitioner was, on her own showing, appointed only against a leave vacancy and not against a regular vacancy. Therefore, I have no hesitation to hold that the writ petitioner is not entitled to the benefit of protection. The claim for inclusion in the teachers' package also does not arise for consideration in as much as the petitioner has been appointed to a regular vacancy and is working as such. Thus I hold that the petitioner is not entitled to the reliefs sought in the Writ Petition.

However, taking note of the facts of this case, I am of the view that the service rendered between 12-09-1995 to 15-07-2005 can be counted as qualifying service for pension. A Division Bench of this court in State of Kerala and others v. Sabu Mathew; [2019 (3) KLT 606] after referring to its earlier judgment in Alizuamma v. Accounts Officer; [2013 (4) KLT 53] has held that the provisional service in an aided school in a leave vacancy can be counted for pension when the person concerned later joins regular service in an aided school. Taking note of the fact that the writ petitioner has a considerable length of service against a leave vacancy (stated to be approved from 12-09-1995 to 15-07-2005) this writ petition will stand disposed of directing the 1st respondent to consider the question as to whether the service from 12-09-1995 to 15-07-2005 against a leave vacancy can be treated as qualifying service for pension in the light of the law laid down by this court in Sabu Mathew (supra). It is made clear that the petitioner will not be entitled to any other benefits other than the counting of that period of service as qualifying service for pension. The 1st respondent shall consider the question taking note of the judgment of this court in Sabu Mathew (supra) and pass appropriate orders within a period of 8 weeks from the date of receipt of a certified copy of this judgment. If the petitioner desires to be heard on the question of counting of the service between 12-09-1995 to 15-07-2005 as qualifying service for pension, she may request the 1st respondent to provide such an opportunity. The writ petition will stand disposed of as above.