IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 9423 of 2011(C) ------------------------- PETITIONER: --------------- JAYAN.U.M., S/O.MARKOSE, UZHATHUKAVU MALAYIL, MULAKULAM NORTH.P.O., PIRAVOM.68664.(LGFT HINDI TEACHER, CMS HIGH SCHOOL KATTANAM). BY ADV. SRI.S.SUBHASH CHAND SRI.T.NIKLAVU SMT.V.AJITHA RESPONDENT(S): ----------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. PIN-695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. PIN-689 001. 3. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, MAVELIKARA. PIN.689 121. 4. THE CORPORATE MANAGER, CMS SCHOOL, DIOCESAN OFFICE, BISHOP MEMORIAL BUILDING, CATHEDRAL ROAD, KOTTAYAM. 686 001. BY GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.9423/11 PETITIONER'S EXTS: EXT.P1: COPY OF ORDER NO.569/08 DT.28.7.08 ISSUED BY THE 4TH RESPONDENT. EXT.P2: COPY OF ORDER BEARING NO.554/10 DT.5.8.10 PASSED BY THE 4TH RESPONDENT. EXT.P3: COPY OF ORDER DT.24.1.11 PASSED BY THE 1ST RESPONDENT. EXT.P4: COY OF GOVERNMENT ORDER DT.12.1.10. EXT.P5: COPY OF ORDER DT.2.7.10 IN WPC.6960/10 PASSED BY THIS COURT. EXT.P6: COPY OF ORDER DT.7.3.11 IN WPC.6955/11 PASSED BY THIS COURT. RESPONDENTS' EXTS: NIL TRUE COPY P.A.TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)No.9423 of 2011 -------------------------------------------------- DATED THIS THE 11th DAY OF NOVEMBER, 2011 JUDGMENT The petitioner who is working as a Lower Grade Full Time Hindi Teacher in C.M.S.High School, Kattanam is aggrieved by Exhibit P3 order passed by the Director of Public Instruction, which does not reflect any adjustment as far as the transfer and posting given to the petitioner with retrospective effect from 28.7.2008. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The service particulars of the petitioner show that he entered service under the management initially in a short term vacancy and then as a regular Lower Grade Part Time Hindi teacher on 8.6.1998. Later, he was promoted and appointed as a Lower Grade Full Time Hindi Teacher in a regular vacancy in KM UPS, Kalavamkode with effect from 5.6.2000 onwards. 4. Consequent on a disciplinary action against the petitioner, he was transferred to CMS High School, W.P.(C)No.9423/11 -2- Kumpalampoika with effect from 28.7.2008 onwards. He started working there from the said date itself. It was an additional division vacancy to which he was accommodated, which is evident from Exhibit P1 order passed by the management. 5. Even though the petitioner was given the said appointment, he was not getting any salary and the management later passed Exhibit P2 order whereby the lien of the petitioner from CMS High School, Kumplampoika to CMS High School, Kattanam was shifted from 28.7.2008 onwards. Alternatively, the lien of another junior teacher namely Smt.P.Suja Jacob was transferred from CMS High School, Kattanam to CMS High School, Kumplampoika with effect from 28.7.2008. Even though the said order was forwarded to the Director of Public Instruction, the same was rejected by Exhibit P3. 6. The learned counsel for the petitioner points out that the view taken in Exhibit P3 is that in CMS High School, Kumplampoika due to insufficiency of periods, the post of LG Hindi Teacher was not sanctioned for the year 2007-08. But in the U.P.section sufficient number of students were there for sanctioning an additional division. The said position continued W.P.(C)No.9423/11 -3- during the later years. The Director of Public Instruction has taken the view that as the ban order has been lifted by the Government as per G.O.(P)No.10/10/G.Edn. dt.12.1.2010, on the Manager executing a declaration/bond, additional divisions can be sanctioned. Accordingly, as the bond is yet to be executed by the Manager, the application was rejected by the Director of Public Instruction. 7. Evidently, Exhibit P2 order shows that the petitioner is transferred and posted in the CMS High School, Kattanam with retrospective effect from 28.7.2008 onwards, instead of CMS High School, Kumplampoika. Sl.No.2 therein is Smt.Suja Jacob, who is the juniormost LG Hindi Teacher who is transferred and posted in CMS High School, Kumplampoika with retrospective effect from 28.7.2008 onwards. Therefore, it is pointed out that at least to the extent of the posting given to the petitioner from 28.7.2008 onwards, appropriate immediate directions ought to have been issued by the Director of Public Instruction. 8. Exhibit P2 order is dated 5.8.2010. It is pointed out that from the date of the said order, the petitioner is working in CMS High School, Kattanam. But in the absence of order W.P.(C)No.9423/11 -4- approving Exhibit P2, the petitioner is not getting salary even now. Therefore it is pointed out that unless the same is approved, the petitioner will be put to real hardship and harassment. 9. Evidently, against the judgment of this Court rejecting the Writ Petitions filed by the Managers challenging G.O.(P) No.10/10/G.Edn. dated 12.1.2010, Writ Appeals are pending before this Court. Therefore, presumably, it may be the reason for the Manager in not executing the bond so far. But, as rightly pointed out by the learned counsel for the petitioner, the petitioner being the senior among the two teachers, the Director of Public Instruction ought to have considered the lien adjustment sought for by the Manager. The said aspect having not been considered in detail in Exhibit P3, the matter will have to be reconsidered by the Director of Public Instruction. Therefore, Exhibit P3 to the extent to which it did not consider the transfer and posting of the petitioner in CMS High School, Kattanam is quashed. There will be a direction to the Director of Public Instruction to pass appropriate orders after considering all aspects and after hearing the petitioner and the Manager and any W.P.(C)No.9423/11 -5- other affected teachers, within a period of two months from the date of receipt of a copy of this judgment. The learned counsel for the petitioner prays for a direction for payment of salary from 5.8.2010. Evidently, with regard to the said claim normally there cannot be any dispute also, as he is said to be working in the new school from that date. Therefore appropriate direction will be issued by the Director of Public Instruction with regard to payment of salary from 5.8.2010 and he will issue appropriate directions to the the 3rd respondent- District Educational Officer in the matter within three weeks from the date of receipt of a copy of this judgment. The petitioner can file an application showing the details of payment yet to be sanctioned and disbursed from 5.8.2010. The Writ Petition is allowed as above. No costs. SD/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn