Sanjith Kumar K. vs State of Kerala

W.P.(C)No.17547 of 2014

The petitioner herein was initially appointed as High School Assistant (Hindi) with effect from 2.6.2004 in the vacancy of Smt.C.K.Soudamini who retired from service on 31.5.2004. The appointment was duly approved by the District Educational Officer, Kannur. After the Higher Secondary Course was sanctioned, the petitioner was appointed as HSST Junior (Hindi) by transfer with effect from 12.12.2011 as per Ext.P2 appointment order dated 12.12.2011. The Regional Deputy Director of Higher Secondary Education, Kozhikode declined to approve the said appointment by Ext.P3 order passed on 7.6.2013. Aggrieved thereby, the Manager of the school filed an appeal before the Director of Higher Secondary Education. While the appeal was pending, the Manager once again appointed the petitioner as HSST Junior (Hindi) by Ext.P5 appointment order dated 7.6.2013 with effect from 23.2.2013. The Regional Deputy Director of Higher Secondary Education, Kozhikode approved the said appointment by Ext.P6 order dated 11.9.2013 with effect from 14.6.2013. Aggrieved thereby, the Manager of the school has filed Ext.P7 appeal before the Director of Higher Secondary Education wherein he has sought approval of the petitioner''s appointment as HSST Junior (Hindi) with effect from 12.12.2011. In the alternative, he has also sought approval with effect from 23.2.2013. In this writ petition, the petitioner seeks a writ in the nature of mandamus commanding the Director of Higher Secondary Education to dispose of Ext.P7 appeal within a time limit to be stipulated by this Court. He also seeks an order directing respondents 1 to 4 to disburse salary and allowances to him in the scale of pay of HSA (Hindi) for the period from 12.12.2011 to 13.6.2013.

The petitioner herein was initially appointed as High School Assistant (Natural Science) with effect from 23.9.1997. The said appointment was duly approved. Later, she was appointed as HSST Junior (Botany) by transfer with effect from 28.11.2011 as per Ext.P1 appointment order dated 28.11.2011. The Regional Deputy Director of Higher Secondary Education, Kozhikode declined to approve the said appointment by Ext.P2 order passed on 23.5.2013. Aggrieved thereby, the Manager of the school filed an appeal before the Director of Higher Secondary Education. While that appeal was pending, the Manager once again appointed the petitioner as HSST Junior (Botany) with effect from 23.2.2013 by Ext.P3 appointment order dated 23.2.2013. The Regional Deputy Director of Higher Secondary Education, Kozhikode approved the said appointment by Ext.P4 order passed on 3.10.2013 with effect from 17.6.2013. Aggrieved thereby, the Manager of the School has filed Ext.P5 appeal before the Director of Higher Secondary Education seeking approval of the petitioners'' appointment with effect from 23.2.2013. In the alternative, the Manager has also sought approval of the petitioners'' appointment as HSST with effect from 28.11.2011 onwards. In this writ petition, the petitioner seeks a writ in the nature of mandamus commanding the Director of Higher Secondary Education to dispose of Ext.P5 appeal within a time limit to be stipulated by this Court. He also seeks an order directing respondents 1 to 3 to disburse salary and allowances to him in the scale of pay of HSA for the period from 28.11.2011 to 31.5.2012.

When the writ petitions came up for admission hearing before me on 10.7.2014, learned Government Pleader was directed to get instructions. When the writ petition came up for admission hearing today, Sri.M.A.Fayaz, learned Senior Government Pleader appearing for the official respondents submitted that Ext.P7 appeal produced in W.P.(C)No.17547 of 2014 and Ext.P5 appeal produced in W.P.(C)No.17550 of 2014 are pending before the Director of Higher Secondary Education and that the Director will take an appropriate decision on the appeals at the earliest.

Sri.K.Jaju Babu, learned Senior Advocate appearing for the petitioners submitted relying on Government letter No. 48885/T1/ 2002/G.Edn. dated 10.12.2002 that Higher Secondary School Teachers appointed by transfer from the categories of HSA/UPSA/ LPSA under the same educational agency are eligible to draw salary and allowances in the lower scale of pay until their appointment in the higher time scale of pay of Higher Secondary School Teachers is approved and therefore, notwithstanding the fact that approval of appointment as HSST was granted to the petitioners only with effect from 14.6.2013 and 17.6.2013 respectively, they are entitled to salary and allowances in the scale of pay of HSA which they were drawing till they were appointed as HSST for the period from 12.12.2011 to 13.6.2013 in the case of the petitioner in W.P.(C) No. 17574 of 2014 and for the period from 28.11.2011 to 16.6.2013 in the case of the petitioner in W.P.(C)No.17550 of 2014. The learned counsel also submitted that the petitioner in W.P.(C)No. 17550 of 2014 was paid salary and allowances in the scale of pay of HSA for the period from 1.6.2012 to 16.6.2013, but salary and allowances in the lower scale of pay of HSA was not paid to him for the period from 28.11.2011 to 31.5.2012.

I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The Government letter dated 10.12.2002 referred to and relied on by the petitioners reads as follows:-

"GOVERNMENT OF KERALA General Education (T) Department No. 48885/T1/2002/G.Edn. Thiruvananthapuram,

Dated 10.12.2002

From

The Secretary to Government.

To

The Director of Higher Secondary Education, Thiruvananthapuram. All Deputy Directors of Education.

Sir,

Sub:- Higher Secondary Education - Drawal of salary in the lower time scale till the approval of the post of Higher Secondary School Teacher- Clarification - Regarding.

25% vacancies of Higher Secondary School Teachers of Higher Secondary Schools are earmarked for the qualified hands in the categories of High School Assistants/UPSA/LPSA under the same educational agencies for by transfer appointment. The Higher Secondary School Teachers appointed by transfer from among the categories mentioned above are eligible to draw their salary and allowances in their respective lower scale of pay until their approval of appointment in the higher time scale of pay of Higher Secondary School Teacher as they hold lien to the lower post. Therefore the Director of Higher Secondary Education and Deputy Directors of Education are directed to draw the salary and allowances of Higher Secondary School Teachers coming under above category in their respective lower time scale of pay attached to the lower post to which they have got lien until their appointment is approved in the post of Higher Secondary School Teachers.

Yours Faithfully, Under Secretary, For Secretary to Govt.

The Government have in the said letter clarified that Higher Secondary School Teachers appointed by transfer from among the categories of HSA/UPSA/LPSA under the same educational agency are eligible to draw salary and allowances in the lower scale of pay until their appointment in the higher time scale of pay of Higher Secondary School Teacher is approved for the reason that they hold a lien in the lower post. By that letter, the Government also directed the Director of Higher Secondary Education and Deputy Directors of Education to draw the salary and allowances of Higher Secondary School Teachers coming under the above category in their respective lower time scale of pay attached to the lower post in which they have a lien, until their appointment is approved in the post of Higher Secondary School Teachers. In the case of the petitioner in W.P.(C)No.17547 of 2014 though he was appointed by transfer as HSST (Hindi) by Ext.P2 appointment order dated 12.12.2011 and still later by Ext.P5 appointment order dated 7.6.2013 with effect from 23.2.2013, it was approved only with effect from 14.6.2013. The question whether the petitioner in W.P.(C)No.17547 of 2014 is entitled to have his appointment approved with effect from 12.12.2011 and in any case with effect from 23.2.2013 is pending in appeal before the Director of Higher Secondary Education. The petitioner in W.P.(C)No.17550 of 2014 was appointed by transfer as HSST Junior (Botany) by Ext.P1 appointment order dated 28.11.2011 with effect from that date and still later by Ext.P3 appointment order dated 23.2.2013 with effect from that date. His appointment was however approved only with effect from 17.6.2013. The question whether he is entitled to have his appointment as HSST approved with effect from 28.11.2011 and in any case with effect from 23.2.2013 is pending in appeal before the Director of Higher Secondary Education.

In such circumstances, as the petitioner in W.P.(C) No. 17547 of 2014 held a lien in the post of HSA till 13.6.2013 and the petitioner in W.P.(C)No.17550 of 2014 held a lien in the post of HSA till 16.6.2013, I am of the opinion that notwithstanding the dispute regarding approval of their appointment as HSST from an earlier date and the pendency of appeals in that regard before the Director of Higher Secondary Education, the official respondents should take steps to draw and disburse salary and allowances to the petitioners in the lower scale of pay applicable to the post of HSA until 13.6.2013 in the case of the petitioner in W.P.(C)No.17547 of 2014 and till 16.6.2013 in the case of the petitioner in W.P.(C) No. 17550 of 2014. I accordingly dispose of the writ petition with the following directions:-

i. The Director of Higher Secondary Education shall within four months from the date on which the petitioner produces a copy of this judgment along with a copy of the writ petition complete in all aspects before him, dispose of Ext.P7 appeal produced in W.P.(C) No. 17547 of 2014 and Ext.P5 appeal produced in W.P.(C)No.17550 of 2014, after notice to and affording the petitioners as also the Manager of the school and the Regional Deputy Director of Higher Secondary Education, Kozhikode/Kannur an opportunity of being heard.

ii. The Director of Higher Secondary Education shall after orders are passed, communicate copies thereof to all the parties.

iii. The Deputy Director of Education Kozhikode/Kannur shall within one month from the date of receipt of the arrear salary bill of the petitioner in W.P.(C)No.17547 of 2014 for the period from 12.12.2011 to 13.6.2013 and for the period from 28.11.2011 to 31.5.2012 in the case of the petitioner in W.P.(C)No.17550 of 2014, take steps to draw and disburse arrears of salary and allowances in the scale of pay of HSA which post they were holding, together with applicable increments. Needless to say, in the event of their appointments being approved in the category of HSST with effect from an earlier date, they will be entitled to claim salary and allowances applicable to the post of HSST.

iv. The Principal of the school shall in order to enable the Director of Higher Secondary Education/Deputy Director of Education to act as directed above, submit the arrear salary bill of the petitioners in respect of the aforesaid period within two weeks from the date on which the petitioners produce a copy of this judgment before him.