IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 4821 of 2008(Y) -------------------------------------- PETITIONER(S): ------------------------ K.R.LEKHA, UPPER PRIMARY SCHOOL ASSISTANT, NATIONAL HIGHER SECONDARY SCHOOL IRINJALAKUDA. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE BY ADV. SRI.ANIL SIVARAMAN RESPONDENT(S): --------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA. 2. THE ASSISTANT EDUCATIONAL OFFICER, IRINJALAKUDA. 3. THE HEADMISTRESS, NHS SCHOOL, IRINJALAKUDA. 4. THE MANAGER, NHS SCHOOL, IRINJALAKUDA. *ADDL.5TH RESPONDENT IMPLEADED *ADDL.5TH: SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION(B)DEPARTMENT,GOVT. OF KERALA, THIRUVANANTHAPURAM. *ADDL.5TH RESPONDENT IMPLEADED AS PER JUDGMENT DATED 16/6/2011 IN WPC R1 & R2, R5 BY SR GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R3 BY ADVS.SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) R4 BY ADV. SRI.V.A.MUHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.4821/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE GOVERNMENT ORDER DATED 7/9/2002. P2 COPY OF THE JUDGEMENT IN W.A.2618/01 DATED 13/7/01. P3 COPY OF THE ORDER OF THE AEO. IRINJALAKUDA DATED 28/10/02. P4 COPY OF THE ORDER OF THE AEO. IRINJALAKUDA DATED 13/1/03. P5 COPY OF THE ORDER OF THE GOVERNMENT IN THE REVISION PETITION DATED 29/12/05. P6 COPY OF THE JUDGEMENT IN WP(C)NO.4113/06 DATED 5/6/07. P7 COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 18/10/07. P8 COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 27/11/07. P9 COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 9/1/2008. P10 COPY OF THE REPRESENTATION DATED 5/2/2008. P11 COPY OF THE REPRESENTATION DATED 16/10/09. P12 COPY OF THE ORDER DATED 18/8/1997. RESPONDENT'S EXHIBITS: R4(A) COPY OF THE REPRESENTATION FILED BY THE PETITIONER FILED BY THE PETITIONER BEFORE THE GOVT. R4(B) COPY OF THE LETTER OF THE MANAGER. /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 4821 of 2008-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2011. JUDGMENT The petitioner's grievance is regarding the non regularisation of service as U.P.S.A. with effect from 15.7.2002 and the non disbursement of consequential benefits. This is the second round of litigation as far as the parties are concerned, as all the other disputes with regard to her entitlement, have become final in the light of Ext.P6 judgment of this Court. 2. The history of the litigation is the following: The petitioner was initially appointed as LPSA by the Manager, in a regular vacancy with effect from 14.6.2000. Even though initially the approval of the same was declined, in a revision petition, the Government by Ext.P1 order, directed approval of appointment of the petitioner with effect from 14.6.2000. Ext.P2 is the judgment in W.A. No.2618/2001, wherein this Court allowed the continuance of the petitioner in service during the pendency of the revision petition, if a vacancy of LPSA is existing in the school. It is thereafter that Ext.P1 order was passed by the Government. By Ext.P3, the appointment was approved by the Asst. Educational Officer and the approval is effective from 14.6.2000. wpc 4821/2008 2 3. In the year 2002-2003 during the staff fixation, three divisions stood abolished, resulting in abolition of three posts of teachers. By Ext.P4 order, the Asst. Educational Officer directed to transfer the petitioner to the Upper Primary Section. Even though the Manager challenged the order before various forums, the revision filed against the same was dismissed by the Government as per Ext.P5. It appears that the Manager filed a petition for review of Ext.P5 order before the Government and it is the allegation of the petitioner that without hearing the petitioner, the Government modified Ext.P5 order which was challenged before this Court in W.P.(C) No.4113/2006. This Court, by a common judgment Ext.P6, disposed of the writ petition upholding the order passed by the Government. The Manager finally implemented Ext.P5 order by Ext.P7, whereby the petitioner was transferred a UPSA with retrospective effect from 15.7.2002 against additional division vacancy. Accordingly, she joined service on 6.8.2007 and applied to the Headmistress for granting the pay fixation and other benefits as well as release of salary. The option for revision of pay from 1.7.2004 onwards as per G.O.(P) No.145/06/Fin. dated 25.3.2006 was also submitted. The District Educational Officer, by Ext.P9 communication re- transmitted the same to the Headmistress with a direction to resubmit it after regularising the service from 15.7.2002 to 5.8.2007. The above wpc 4821/2008 3 communication has led the petitioner to approach this Court by filing this writ petition. 4. Heard parties. 5. Learned Senior Counsel Shri P. Ravindran, appearing for the petitioner submitted that in the light of Ext.P5 order passed by the Government and Ext.P6 judgment of this Court, all of which have become final, the period had to be regularised. It was the Manager who did not take action initially to transfer the petitioner, but the Manager cannot take such contentions after all these objections are overruled. Finally, by Ext.P7 the petitioner was transferred with retrospective effect from 15.7.2002. Therefore, the period from 15.7.2002 till 5.8.2007 has to be regularised for all purposes and no objection can be taken in the matter. It is therefore pointed out that the District Educational Officer has acted erroneously in tranmitting the papers back to the Headmistress. 6. Shri K.E. Hamsa, who appeared for the Manager, submitted that the regularisation has to be done by the Government and therefore the communication of the District Educational Officer cannot be said to be irregular. In the counter affidavit filed by the second respondent, it is pointed out in para 6 that the break in service from 15.7.2002 to 5.8.2007 is not regularised on the absorption of the petitioner on the strength of Ext.P6 wpc 4821/2008 4 judgment and Ext.P9 order was issued to the third respondent as the proposal was submitted by the third respondent. Finally, in para 7 it is pointed out that the petitioner has not submitted any representation to the higher authorities to regularise the break in service from 15.7.2002 to 5.8.2007. 7. As rightly pointed out by the learned Senior Counsel for the petitioner, the delay on the part of the Manager in implementing Ext.P4 alone has resulted in delaying the transfer of the petitioner to the U.P. Section. Ext.P4 order itself is dated 13.1.2003. The Government in Ext.P5 order, found that the petitioner was the rightful claimant under Rule 51A of Chapter XIV-A K.E.R., especially in view of the amendment dated 17.6.2005 and accordingly her claim was accepted by the Government. After elaborately considering various contentions, this Court also, by Ext.P6 judgment upheld the claim of the petitioner. Thus, as regards the said question, a finality has been attained. 8. Therefore, this is a case where the petitioner is entitled for regularisation of the period of service from 15.7.2002 to 5.8.2007. Along with I.A. No.8853/2011 the petitioner has produced Exts.P10 and P11 representations submitted to the Asst. Educational Officer and District Educational Officer. The counter affidavit filed by the Manager shows that wpc 4821/2008 5 the representation of the petitioner, a copy of which has been produced as Ext.R4(a), has been forwarded by the Manager to the Government as per Ext.R4(b). In the counter affidavit, in para 7 it is stated by the Manager that a vacancy of UPSA was available from 15.7.2002 to provide the petitioner. Hence, a rearrangement was made as per Ext.P7 order No.C/315/07 dated 18.10.2007 as per Ext.P7. 9. Therefore, the factual scenario justifies the claim of the petitioner. There is no dispute with regard to the availability of vacancy to post the petitioner as UPSA in terms of Ext.P4 order. The delay occurred because of the various intervening circumstances and after Ext.P6 judgment was rendered, by Ext.P7 the petitioner was transferred retrospectively and she joined service on 6.8.2007. Therefore, the period from 15.7.2002 to 5.8.2007 will have to be regularised and it is declared so. 10. Of course, the formal orders will have to be issued by the Government. Even though the Government is not a party, to avoid further delay in the matter, the Secretary to the Government, General Education (B) Department, Government of Kerala, Thiruvananthapuram is impleaded suo motu as additional fifth respondent. Even though learned Senior Counsel for the petitioner submitted that the Manager himself will have to regularise the period, evidently a proper sanction has to be given by the Government. wpc 4821/2008 6 Therefore, it is only proper that the Government passes the consequential order. 11. Therefore, there will be a direction to the additional fifth respondent to pass orders on Ext.R4(a) representation forwarded to the Government through proper channel as per Ext.R4(b) by the Manager, and appropriate orders will be passed in the light of the declaration made by this Court, within a period of three months from the date of receipt of a copy of this judgment. The petitioner will forward a copy of the writ petition along with a copy of this judgment to the additional fifth respondent for compliance. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/