Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 OP(KAT) NO.80 OF 2021 AGAINST THE ORDER DATED 10.6.2019 IN OA 1621/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONERS/RESPONDENTS IN O.A:
1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 THE DIRECTOR VOCATIONAL HIGHER SECONDARY EDUCATION DEPARTMENT, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM, PIN-695 014. 3 THE DIRECTOR OF AGRICULTURE VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN-695 033. SRI.B.VINOD, SR.GOVT.PLEADER,
RESPONDENT/APPLICANT IN THE O.A: DIVYA.S, AGED 37 YEARS W/O. R.RAJESH, PRINCIPAL, GOVERNEMNT HIGHER SECONDARY SCHOOL, VITHURA, THIRUVANANTHAURAM, PIN-695 551, RESIDING AT 'USHUS', T.C.4/1020, KOWDIAR JUNCTION, KOWDIAR, THIRUVANANTHAPURAM, PIN-695 003. SRI.B.REGHUNATHAN, ADVOCATE THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS & K.BABU, JJ. =========================== [arising out of the order dated 10.06.2019 in O.A No.1621/2015 on the file of the KAT, Tvm. Bench] =========================== Dated this the 31st day of March, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India are as follows (see page No.12 of the paper book of the O.P) : “1. To set aside the Exhibit P4 Order of the Kerala Administrative Tribunal in O.A.1621/2015.
2. To dismiss the Exhibit P1 Original Application No.1621/2015
filed by the Respondent before the Kerala Administrative Tribunal, holding that the said Respondent is not eligible for any of the reliefs claimed in the Exhibit P1 Original Application.
3. To declare that Exhibit P1(A13) Order is valid and legally
sustainable and declare that the Respondent is not eligible for getting the period of her deputation reckoned for the purpose of Time Bound Higher Grade, or any other incidence of her service for increment, promotion and seniority.
4. Any other order or direction as this Honourable Tribunal may deem fit and proper in the facts and circumstances of the case.”
2. Heard Sri.B.Vinod, learned Senior Government Pleader appearing for the petitioners (State of Kerala & the departmental
officials concerned) in the O.P/respondents in the O.A and Sri.B.Reghunathan, learned Advocate appearing for the sole respondent in the O.P/sole respondent in the O.A before the Tribunal.
3. The prayers in the instant Ext.P-1 original application, O.A
No.1621/2015 filed by the respondents herein before the Kerala Administrative Tribunal, Thiruvananthapuram Bench are as follows (see page Nos.26 & 27 of this paper book) : “i) to issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to Annexure A13 and quash the same. ii) to issue a writ of mandamus or other appropriate writ, direction or order to the 1 st respondent directing to reckon the period of deputation as Vocational Teacher in Agriculture from 18.7.2003 to 7.6.2007 in Agriculture Department with regular service as Vocational Teacher in Agriculture from 8.6.2007 onwards for all service and attendant benefits. iii) to grant such other orders which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case. and iv) to award the cost of this application to the applicant.”
4. The Tribunal after hearing both sides, has rendered the
impugned Ext.P-4 final order dated 10.06.2019 in the instant O.A No.1621/2015, whereby the impugned rejection order at Annexure-A13 G.O (Rt.) No.2969/2015/G.Edn dated 22.07.2015 issued by the competent authority of the State Government in the General Education
Department, has been quashed and the matter has been remitted to the State Government, for consideration afresh, inasmuch as Annexure- A13 order has omitted to consider various relevant aspects of the matter as mentioned therein and that it is also vitiated by taking into account irrelevant and extraneous considerations and that the 1 st petitioner herein will reconsider the matter in Annexure-A8 representation afresh in the light of the observations made by the Tribunal in the said final order at Ext.P-4. It is this final order at Ext.P- 4 that is under challenge in the instant original petition filed at the instance of the State of Kerala and the department officials concerned.
5. The respondent herein (hereinafter referred to as the
original applicant/applicant) was regularly appointed to the post of Agricultural Officer in the Agricultural Department of the State Government as per advice memo dated 31.01.2003 issued by the Kerala
Public Service Commission and pursuant to the appointment order
issued in that regard, she had joined duty in the said post in the
Agriculture Department on 07.04.2003. Later, by Annexure-A1 order
dated 08.07.2003, the competent authority of the Government in the General Education Department had accorded sanction for appointing the applicant on deputation basis as Vocational Teacher in Agriculture
in the Vocational Higher Secondary Schools under the 2 nd petitioner- Director of Vocational Higher Secondary Education for a period of one year on usual terms and conditions of deputation, but without the deputation allowance. Accordingly, she was relieved from her parent department (Agriculture Department) on 07.07.2003 and she had joined duty as Vocational Teacher in the subject of Agriculture in the Government Vocational Higher Secondary School at Vithura, Thiruvananthapuram District on 08.07.2003. It is common ground that the said period of deputation of the applicant has been consistently extended for one year each, as can be seen from orders in the nature of Annexures-A2, A3 & A4, passed by the Government. Later, while continuing as Vocational Teacher on deputation basis, the applicant was regularly selected and appointed to the post of Vocational Teacher in the Vocational Higher Secondary Education Department through the selection process conducted by the Public Service Commission. Pursuant thereto, she had secured advice memo dated 30.04.2007 issued by the Kerala Public Service Commission and consequent to which, she was also offered order of appointment dated 04.06.2007 issued by the Director of Vocational Higher Secondary Education. Thereupon, to complete the formalities, she had sought for reversion to
her parent department (Agriculture Department), which was sanctioned as per Annexure-A5 consequent to which, she was relieved from the post of Vocational Teacher on 07.06.2007 and joined her parent department (Agricultural Department) on the same day and on request, she was relieved from the Agriculture Department on the same day to enable her to join duty in the new department. Thus it appears that she had joined duty pursuant to her regular selection and appointment as Vocational Teacher in the subject of Agriculture, under the Vocational Higher Secondary Education Department on 08.06.2007. Later she has been promoted to the post of Principal on 11.07.2013 and is continuing as such.
6. The case of the applicant is that her deputation was on
public interest and exigencies of service and that she was not getting any deputation allowance and that all throughout during her deputation period, her lien was in the parent department (Agriculture Department). But she had actually served in her parent department (Agriculture Department) as Agricultural Officer only for a short period from 07.04.2003 to 17.07.2003. The major portion of her service while holding lien in the Agriculture Department was in the Vocational Higher Secondary Department and after securing regular appointment
as Vocational Teacher, she continued in the said Vocational Higher Secondary Department. Hence, it is her case that the major portion of her service while holding lien in the Agriculture Department was in the Vocational Higher Secondary Educational Department. Thereupon, she has submitted Annexure-A8 representation dated 05.05.2014 before the competent authority of the State Government in the General Education Department, requesting that the benefit of her service in the Agriculture Department, should be tagged along with her regular service as Vocational Teacher in the new department and that by Annexure-A9, her request for Higher Grade has been rejected stating that the deputation period cannot be treated as qualifying service for Higher Grade. Further it appears that in view of Annexure-A9 order, the Director of Vocational Higher Secondary Education had not forwarded Annexure-A8 representation of the applicant to the State Government. This constrained the applicant to move the Tribunal, which led to Annexure-A11 order, whereby the Tribunal had directed the State Government to consider Annexure-A8 representation and pursuant to that, the impugned Annexure-A13 order has been issued.
7. The main grounds for rejection stated by the State Government in the impugned Annexure-A13 rejection order is to the
effect that the post of Agriculture Officer in the Agriculture Department and the post of Vocational Teacher in the subject of Agriculture, under the Vocational Higher Secondary Education Department, are distinct and that the duties and responsibilities of these posts are entirely different and that the deputation of the applicant to the post of Vocational Teacher was not in public interest or in exigencies in service. It is also stated that the lien of the applicant continued in the Agriculture Department during her period of deputation in the Vocational Department and the said period cannot be reckoned for grant of time-bound higher grades in the latter service. The request has been rejected as per Annexure-A13 mainly on the ground that there are no exigencies of service and that the rules do not enable the grant of the claimed benefit in favour of the petitioner and that there are no exigencies of service or public interest to invoke the discretionary powers under Rule 39 of Part-II KS&SSR. It is also apprised to us that the original applicant had indeed secured the best teacher award for the year 2015. The Tribunal after hearing both sides has mainly found in para No.14 of Ext.P-4 that the applicant is essentially seeking only the benefit of service rendered in the same post of Vocational Teacher. That except for three months in her original parent department, she
continued on deputation basis all throughout as Vocational Teacher to teach in the subject of Agriculture in the Vocational Higher Secondary Education Department of Schools and later she was appointed on regular basis as Vocational Teacher and all what she seeks is that her service rendered on deputation basis in the Vocational Higher Secondary Education Department, may be reckoned as part of her regular service in the same department (Vocational Higher Secondary Education Department). Hence, the Tribunal found that the main ground of rejection made by the Government that the two posts are distinct and separate and the duties and responsibilities are distinct and different, etc., are not relevant basis for rejecting the plea of the petitioner and that the crucial and relevant aspects of the matter is that she is essentially claiming to reckon her service all-throughout in Vocational Higher Secondary Education Department, which she had rendered on deputation basis to be tagged along with her regular service in the same department pursuant to her regular selection and appointment to the post of Vocational Teacher.
8. After hearing both sides, we are of the view that the Tribunal is fully right in so holding the impugned verdict at Ext.P-4 that the Government has gone on a tangent by rejecting the plea on the
abovesaid grounds. Further, the Tribunal has found that the Government has not considered the crucial aspect that, if the applicant is directed to commence service afresh as a fresh recruit in the Vocational Higher Secondary Education Department, it would cause serious heartburns and inequity to an incumbent like the applicant, who has a brilliant academic and professional record, despite her 4 years deputation service in the vocational department. The Tribunal has observed in para No.21 of Ext.P-4 order that this would result in an element of serious inequity and injustice, which is likely to result in demoralisation of not only the affected employee but also among other members in service. These are aspects which should have been taken cognizance of very seriously by the State Government in exercise of its discretionary powers under Rule 39 of Part-II KS&SSR.
9. However, Sri.B.Vinod, learned Senior Government Pleader
appearing for the petitioners would point out that the Tribunal has gone wrong in placing reliance on the decisions of the Apex Court in cases as in K.Madhavan v. Union of India {1987(4) SCC 566} and Sub Inspector Rooplal v. Lt.Governor {2000 (1) SCC 644}, inasmuch as those cases deal with deputation to the Central Bureau of Investigation (CBI) and the Delhi Police respectively and should be
from amongst police personnel of other police organizations. Further that, the consistent practice therein in those cases was that police personnel of other organizations used to be appointed on deputation basis to the CBI and the Delhi Police, etc. and it is in that context that the Apex Court has rendered the abovesaid decisions in K.Madhavan’s case supra {1987 (4) SCC 566} and Rooplal’s case supra {2000 (1) SCC 644} and that the approach of the Tribunal as if, the legal principles laid down by the Apex Court in the context of the special factual aspects relating to the deputation in those organizations, would apply to the facts of the present case, is a serious error and that the dictum laid down by the Apex Court in the aforecited decisions will not apply in the facts and circumstances of the case. These contentions of the learned Senior Government Pleader are opposed by Sri.B.Reghunathan, learned counsel appearing for the original applicant. For a matter like this, where the Tribunal has only remitted the matter to the Government for consideration afresh, it is not necessary for us to resolve the said issue, except to state that it will be open to the competent authority of the State Government to examine and consider whether the dictum laid down by the Apex Court in the aforecited decisions as in K.Madhavan’s case supra {1987(4) SCC
566}, Rooplal’s case supra {2000(1) SCC 644}, etc. would apply to the facts and circumstances of this case. To that extent, the orders and observations of the Tribunal in that regard will stand modified as above.
10. But after hearing both sides, we are of the view that the
Government has not considered various crucial and relevant aspects of the matter. The applicant is said to have a brilliant academic career and she has secured her professional degree in B.Sc in Agriculture from the Kerala Agricultural University. It is pointed before us by Sri.B.Reghunathan, learned counsel appearing for the original applicant that through a tough competitive selection process conducted through the Public Service Commission, she had come out successful and as regularly selected and appointed to the post of Agricultural Officer in the earlier parent department (Agricultural Department), as per Advice Memo dated 31.01.2003 and she had joined duty on 07.04.2003 in the Agricultural Department. Further it is pointed out that it is well known that the career advancement opportunities in the Agricultural Department, for a new recruit as Agricultural Officer is quite vast and immense compared to the limited opportunities available in the Vocational Higher Secondary Education Department,
where utmost a Vocational Teacher might aspire to become a Principal, subject to other limited promotional or career advancement opportunities. That, in spite of this, the appellant has chosen to opt for vocational department only, because of her aptitude and commitment to the teaching profession. Further, it is pointed out that at the initial establishment of the Vocational Higher Secondary Education system in the State, regular special rules were not framed and in view of the fluidity of the situation, the Government and the Department found it almost impossible to get qualified hands to teach in vocational subjects, more particularly in rare vocational subjects like the Agriculture. In this context, that the Government and the Department themselves had taken proactive interest to secure the valuable services of qualified hands as Vocational Teacher to teach the rare subject of Agriculture by seeking deputation from the Agriculture Department. That otherwise, it would have been well-nigh impossible for the Government and the Department to secure even the temporary or provisional services of candidates who are qualified to hold the post of Vocational Teacher in Agriculture even through the employment exchange process. Hence, it is pointed out that the bland stand taken by the respondents in the O.A as if, the deputation given in favour of the petitioner was not on
account of exigency of service or out of public interest, etc., is factually wrong and untenable. It is only later, that the special rules were framed for regulating the service conditions of teachers in the vocational and non-vocational streams in the Vocational Higher Secondary Education Department. Hence, it is pointed out that the deputation of the applicant as Vocational Teacher in the Higher Secondary Education Department was only to mainly effectuate Public Interest and for better interest of the vocational department and hence, the stand of the Government that no exigencies of service or public interest are involved in this case, is absolutely untenable, etc. Further, it is pointed out that the applicant was genuinely having aptitude for her teaching career and that is why she had voluntarily sought to forgo her rightful claims in her parent department (Agriculture Department) and was thus interested to continue in the teaching career as Vocational Teacher, so as to serve the better interest of the State and the student community at large. It is not as if the applicant was provisionally or temporarily appointed through the employment exchange, etc. and it is through her sheer hardwork and merit, that she was regularly selected and appointed both in the Agriculture Department as well as in the Vocational Department. That it is only out of her genuine and sincere
interest and attitude to serve as a Vocational Teacher, that she had sought regular selection and appointment as Vocational Teacher.
11. After hearing both sides, we are of the firm view that the
Government has not examined the abovesaid crucial aspects of the matter. If some of these major aspects are factually true and tenable, then these relevant aspects which would empower the Government to exercise its discretion in terms of Rule 39 of Part-II KS&SSR, so as to relax the rigour of the Rules and so as to give the claimed benefit in favour of the petitioner. As mentioned hereinabove, what is sought for by the applicant is essentially that her service as Vocational Teacher on deputation basis, should be tagged along with her regular service as Vocational Teacher. It may be true that there may not be any provisions in the statutory Rules or in the norms, as per executive orders, so as to regulate the situation of the present nature. It is to deal with such rare and exceptional cases that the subordinate legislature has conferred the discretionary powers on the Government, in terms of Rule 39 of Part-II KS&SSR. These factual aspects would require serious examination at the hands of the State Government. Accordingly, it is ordered that the Director of Vocational Higher Secondary Education Department will immediately conduct an enquiry
either by himself or through an authorized officer not below the rank of the Regional Deputy Director/Deputy Director of Vocational Higher Secondary Education Department and to ascertain about the academic record as well as about the professional record of the applicant as a Vocational Teacher in the various Government Vocational Higher Secondary Schools, where she has served. An impartial and fair enquiry should be conducted by the said officer to ascertain the factual aspects of the matter and a report in that regard should be duly submitted by the Director of the Vocational Higher Secondary Education Department to the competent authority of the State Government in the General Education Department, without any further delay, at any rate within six weeks from the date of receipt of a certified copy of this judgment. In the abovesaid enquiry, the Director of the VHSE Department will also ascertain about the best teacher award said to have been given in favour of the original applicant in the year, 2015, etc. and any such other relevant aspects regarding her professional career as a Vocational Teacher. The Director of the Vocational Higher Secondary Education Department will also ensure that a copy of the said report is also given to the respondent in advance by registered
speed post. Thereafter, the competent authority of the State Government in the General Education Department will afford reasonable opportunity of being heard to the respondent either in person or through her authorized representative/counsel, if any, as per her choice and then should take a considered decision on the various matters directed to be considered by the Tribunal as well as the findings and observations made by us hereinabove. A well-considered decision should be taken by the competent authority of the State Government in the matter, without much delay, preferably within a period of two months from the date of receipt of a copy of the report to be submitted by the Director of the VHSE Department, as directed above. As mentioned hereinabove, the orders and directions issued by the Tribunal, as per Ext.P-4, will stand modified as above. With these observations and directions, the above Original Petition will stand finally disposed of.
Sd/- ALEXANDER THOMAS, JUDGE Sd/- K.BABU, JUDGE vgd
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE O.A.NO.1621/2015 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL. ANNEXURE A1 TRUE COPY OF G.O(RT.)NO.2626/2003/G.EDN. DATED 08.07.2003 ANNEXURE A2 TRUE COPY OF G.O(RT.)NO.2176/2004/G.EDN. DATED 02.06.2004 ANNEXURE A3 TRUE COPY OF G.O(RT.)NO.2230/05/G.EDN. DATED 31.05.2005 ANNEXURE A4 TRUE COPY OF G.O(RT.)NO.2395/06/G.EDN. DATED 13.07.2006 ANNEXURE A5 TRUE COPY OF G.O(RT.)NO.2564/07/G.EDN. DATED 06.06.2007 ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED 18.02.2009 ADDRESSED TO THE 1ST RESPONDENT (HONOURABLE MINISTER OF EDUCATION) ANNEXURE A7 TRUE COPY OF THE LETTER DATED 09.05.2009 OF THE 2ND RESPONDENT ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED 05.05.2014 ANNEXURE A9 TRUE COPY OF THE LETTER DATED 08.11.2013 OF THE 1ST RESPONDENT ANNEXURE A10 TRUE COPY OF THE LETTER DATED 16.06.2014 OF THE 2ND RESPONDENT TO THE ASSISTANT DIRECTOR, VHSE REGIONAL OFFICE, KOLLAM ANNEXURE A11 TRUE COPY OF THE ORDER OF THE TRIBUNAL IN O.A NO.90/2015 ANNEXURE A12 TRUE COPY OF THE NOTE DATED 15.06.2015 SUBMITTED TO THE 1ST RESPONDENT ANNEXURE A13 TRUE COPY OF THE G.O(RT.)NO.2969/2015/G.EDN. DATED 22.07.2015 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
06.04.2017 FILLED BY THE 2ND PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 24.11.2017 FILLED BY THE 1ST PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL EXHIBIT P4 CERTIFIED COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 10.06.2019.