IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15535 of 2009(J)
1. SMT.C.K.SARADA,AGED 51 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DEPUTY DIRECTOR (EDUCATION),
For Petitioner :SRI.M.A.SHAFIK
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/08/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.15535/2009-J
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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
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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
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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
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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