IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 29346 of 2010(P) -------------------------- PETITIONER(S): --------------- SHYLA.V, HEADMISTRESS (RETIRED), AUP SCHOOL, PANANGATTIRI, PALAKKAD DIST., NOW RESIDING AT "THEJAS", CHATHANPARA, THOTTAKKAD (PO), KALLAMBALAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN RESPONDENT(S): --------------- 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. ASST.EDUCATIONAL OFFICER, KOLLENGODU, PALAKKAD DIST. 3. MANAGER, AUP SCHOOL, PANANGATTIRI, PALAKKAD DIST. BY G.P.SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ W.P.(C).No.29346 OF 2010 ------------------------------ Dated this the 8th day of October, 2010 JUDGMENT While the petitioner was working as Headmistress in a A.U.P School, Panangattiri, she was placed under suspension on 2.3.2005. In the disciplinary proceedings, she was found guilty of the charges and she was reverted as UPSA. Though she filed a revision against the order imposing punishment, the revision was dismissed. The petitioner challenged the original order and the revisional order in WP(C) No.25777/2007. That Writ Petition was allowed as per Ext.P1 judgment dated 19.2.2010. The operative portion of the judgment reads as follows: “Therefore, the writ petition is allowed. Exts.P2 and P5 are quashed. As the petitioner has already retired from service, no fresh proceedings with regard to imposition of punishment can be made. The petitioner will be entitled for all monetary benefits and re-computation of pensionary benefits accordingly and the respondents will be free to pass orders regarding the regularization of the period of suspension in accordance with law. As W.P.(C).No.29346 OF 2010 2 recommended in the vigilance report, an amount of Rs.450/- will be recovered from the petitioner as already proposed in Ext.P6. It can be adjusted from the monetary benefits payable to her. No costs.” 2. It is submitted by the learned counsel for the petitioner that Ext.P2 marked in Ext.P1 judgment is the order of suspension and Ext.P5 marked therein is the revisional order. 3. It is submitted by the learned counsel for the petitioner that the punishment of reversion was not stayed by this court during the pendency of W.P (C) No.25777/2007. Even before the disposal of the Writ Petition, the petitioner retired from service on 30.3.2009. After Ext.P1 judgment was passed, as per Ext.P2 dated 25.3.2010, the Manager reinstated the petitioner as Headmistress. The Assistant Educational Officer passed Ext.P3 order dated 29.5.2010 which reads as follows: “Smt.V.Shaila, Headmistress AUP School Panangattiri retired from service on 31.3.2009. At the time of retirement the teacher was working as LPSA due to reversion W.P.(C).No.29346 OF 2010 3 after suspension from 2.3.2005 to 29.7.2007. But as per judgment referred as No.4 of the Hon'ble High Court the teacher has been reinstated as Headmistress w.e.f.02.3.2005 and as per rule she is entitled for terminal surrender of earned leave at her credit at the time of retirement. As the teacher was under suspension from 02.3.2005 to 29.7.2007 and worked as LPSA from 30.7.2007 to 31.3.2009 (Date of retirement) the earned leave have been calculated up to 01.03.2005 (date prior to the suspension) since she was not attended the school on vacation and also Saturdays. The earned leave at her credit on that date works out to 251 8/11 days. As such permission is hereby granted to Smt.V.Shaila, Headmistress AUP School Panangattiri to terminal surrender of Earned leave for 251 (Two hundred and fifty one days only). The Headmaster, AUPS Panangattiri will draw the earned leave salary as per rules and disburse the retired Headmistress under proper acquittance. The expenditure is to be met under the Head of account 2071-115-01 pension and other retirement benefit of civil. This Order dated 29.5.2010 is issued in terms of Govt. circular No.31/94/Fin. Dated 2.6.94.” 4. On 28.7.2010, the first respondent issued Ext.P5 communication, directing the recipient to obtain and forward application for leave from the petitioner, for the purpose of regularizing the W.P.(C).No.29346 OF 2010 4 period of suspension from 2.3.2005 to 31.10.2005 as eligible leave/Leave Without Allowance. 5. The petitioner challenges Ext.P5 order in this Writ Petition. There is also a prayer for issue a writ of Mandamus directing the respondents to consider the period of suspension (from 2.3.2005 to 31.10.2005)as a period of duty for all purposes. Further, the petitioner has prayed for the issue of a writ of Mandamus directing the respondents to pay the pension and other monetary benefits due to the petitioner. 6. The learned counsel for the petitioner submits that when the punishment imposed on the petitioner was set aside as per Ext.P1 judgment, it follows that the period of suspension shall be treated as duty. Ext.P2 order passed by the Manager indicates that the petitioner was reinstated as Headmistress. The petitioner contends that she is entitled to the pensionary W.P.(C).No.29346 OF 2010 5 benefits. In Ext.P3 order, the Assistant Educational Officer has mentioned that the petitioner was reinstated in service as Headmistress with effect from 2.3.2005. According to the petitioner, this itself would have been sufficient to hold that the petitioner is entitled to the pensionary benefits reckoning the period of suspension as on duty. Ext.P5 is contrary to Ext.P1 judgment and Exts.P2 and P3 orders, submits the learned counsel for the petitioner. The learned Government Pleader submitted that the Government has not finalized the question whether the period of suspension is to be treated as duty and Ext.P5 is only a direction to the petitioner to submit an application for leave for the aforesaid period. 7. It is not seen on what basis Ext.P5 was issued. When the Government have not decided the question as to whether the period of suspension is to be treated as on duty or whether it should be W.P.(C).No.29346 OF 2010 6 regularized by treating it as a period of leave, there was no justification for issuing Ext.P5. Ext.P5 is accordingly, quashed. 8. The first respondent shall take a final decision in the matter and consider the question of regularization of the period of suspension, taking into account the contention of the petitioner that the said period is to be treated as on duty for computing pensionary benefits. The first respondent shall afford an opportunity of being heard to the petitioner and shall take a final decision in the matter within a period of three months' from the date of receipt of a copy of this judgment. The petitioner would be free to appear either in person or through a representative before the first respondent. The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the first respondent. The first respondent shall also take a final decision in the matter of W.P.(C).No.29346 OF 2010 7 payment of pension and shall disburse the pension to the petitioner at the earliest. The question of payment of pro-rata pension can also be considered even before passing final orders in the matter. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE. cms