IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 15535 of 2009(J) --------------------------------------- PETITIONER(S): ------------------------ SMT.C.K.SARADA,AGED 51 YEARS, W/O.RADHAKRISHNAN,PRE-PRIMARY TEACHER, GOVERNMENT U.P.SCHOOL,MANICKAMANGALAM P.O., KALADY,RESIDING AT SMP COLONY,EROOR SOUTH P.O., TRIPUNITHURA,ERNAKULAM DISTRICT. BY ADVS.MR.SHAFIK M.ABDULKHADIR MR.R.SREERAJ MR.SHAFIK M.A SMT.SHAMEENA SALAHUDHEEN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), ERNAKULAM DISTRICT,ERNAKULAM. R1 TO R3 BY GOVERNMENT PLEADER MR.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C NO.15535/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.A4-18459/08 DTD. 8.11.06 ISSUED ON BEHALF OF THE 3RD RESPONDENT. P2:- COPY OF THE CERTIFICATE ISSUED BY THE HEADMISTRESS, GHS, ERNAKULAM. P3:- COPY OF THE LETTER NO.56905/P1/07/G.EDN. DTD. 31.12.08 ISSUED ON BEHALF OF THE IST RESPONDENT. P4:- COPY OF THE REPRESENTATION DTD, 17,2,09 SUBMITTED BEFORE THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15535/2009-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of August, 2009 J U D G M E N T The petitioner is a Pre Primary Teacher working under the third respondent. She joined the Government service on 02/07/1986 at the Thalassery Government Girls School. After she sought for a transfer to Ernakulam District in 1988, she was transferred to Kalady Government U.P.School during 1994. During 1997, when a vacancy arose in Government Girls High School, Ernakulam, she was transferred and accordingly, she joined the said school. 2. In the year 2006, due to shortage of students, one division in the pre-primary section was reduced whereby the petitioner became surplus. Since no orders of retrenchment or transfer was issued, she continued there. The petitioner has got a case that one K.R.Sheela was appointed by the third respondent on the basis of the nomination from Employment Exchange at Kalady U.P.School in the existing vacancy. Aggrieved by the same, the petitioner submitted a representation before the Hon'ble Education Minister and by Ext.P1 order she was transferred to Government U.P.School, Kalady. The petitioner joined there on 17/11/2006. Till 16/11/2006, she was W.P.(C). No.15535/2009 -:2:- working at Government Girls High School, Ernakulam. But she has not been paid salary from September 2006 onwards. Ext.P2 is the attendance certificate issued by the Headmistress to show that she was working in the Government Girls High School upto 16/11/2006. 3. What remains is the regularisation of service for the period from 01/09/2006 to 16/11/2006 and payment of salary. Even though the petitioner moved the Government, by Ext.P3 it was directed that since the petitioner was working without a post, the above period cannot be regularised for pay and allowances and therefore, the said period has to be regularised by treating it as eligible leave. The petitioner thereafter filed Ext.P4 representation against the same. It is pointed out in Ext.P4 that there was a vacancy available in Ernakulam District itself, i.e., in the Kalady U.P.School wherein K.R.Sheela was appointed. 4. In the counter affidavit filed on behalf of the third respondent, it is averred in paragraph (4) that the petitioner was rendered surplus due to division fall and was posted as Pre-Primary Teacher in Government U.P. School, Kalady as per order dated 08/11/2006, and she joined there on 17/11/2006. She was not given pay and allowances for the period from 01/09/2006 to 16/11/2006 as there was no vacancy of Pre-Primary Teacher W.P.(C). No.15535/2009 -:3:- in the district to adjust the lien against the aforesaid period. Again it is revealed from the said paragraph that on 01/04/2005 a retirement vacancy arose in the Ernakulam District and it was reported to the P.S.C on 08/09/2005 and as per the Non Availability Certificate of the P.S.C, the vacancy was filled up through the Employment Exchange during 2005-06 till 16/11/2006 i.e. the date of joining of the petitioner. 5. Therefore, the above averments really goes against the contentions of the department that there was no vacancy to adjust the lien of the petitioner. The vacancy arose during 2005-06 and actually the petitioner was posted in Government U.P.School, Kalady consequent on the issuance of the order dated 08/11/2006, on her representation, in the very same vacancy. In that view of the matter, the stand taken that there was no available post in Ernakulam District to adjust the lien of the petitioner is not correct. Therefore, Ext.P3 is quashed. Fresh orders will be passed by the first respondent for adjusting the lien of the petitioner for the period from 01/09/2006 to 16/11/2006 in the vacancy that was in existence during 2005- 06 as mentioned in paragraph (4) of the counter affidavit (against the retirement vacancy that arose on 01/04/2005). Therefore, the petitioner will be entitled for payment of salary also for the said period. Appropriate W.P.(C). No.15535/2009 -:4:- orders shall be passed within a period of two months from the date of receipt of a copy of the judgment. Depending upon the orders to be passed, the benefit of grade promotion on completion of 23 years of service available to the petitioner will also be sanctioned in terms of the Government Orders in force. The writ petition is allowed. No costs. (T.R. Ramachandran Nair, Judge.) ms