JAYASREE K. K. Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner filed this Writ Petition at a time when she was kept out of service from the post of Laboratory Assistant within three months of her appointment. During the pendency of the Writ Petition she got a posting as Office Attendant. As at present her grievance is against denial of salary for the period from 18.03.2016 to 05.03.2017.

(2.) The petitioner's husband expired on 18.02.2012, while working as Laboratory Assistant in Sree Krishna College, Guruvayoor which is run by the Guruvayoor Devaswom. On 14.06.2012 petitioner submitted an application before the Managing Committee of the Devaswom requesting for compassionate appointment in the College. It is stated that the Guruvayoor Devaswom had by Ext.P1 notification dated 10.02.2012 invited applications for appointment against 5 vacancies of Peon and one vacancy of Laboratory Assistant. Pointing out the availability of vacancies and the steps for filling up the same, petitioner had approached this Court in WP(C) No.24021/2012 seeking directions to the respondents to appoint her. As per Ext.P2 order dated 12.10.2012 this Court directed that one post of Lab Assistant/Peon shall be kept vacant. Thereafter by Ext.P3 judgment dated 23.09.2015 the Writ Petition was disposed of directing that petitioner shall be given appointment against the post kept vacant, in case she satisfied the respondents that she did not have major employed children at the time of the death of her husband and that her husband was the sole bread winner of the family. Thereafter on 14.03.2016 the Administrator of the Guruvayoor Devaswom issued Ext.P4 order appointing the petitioner as Laboratory Assistant under the compassionate employment scheme. It was ordered that petitioner shall pass Attenders' Test conducted by Public Service Commission within the prescribed time limit. Petitioner thereupon joined duty as Laboratory Assistant on 15.03.2016. However from 01.06.2016 onwards the Principal did not permit her to perform duties. She thereupon submitted Exts.P5, P6 and P7 representations before the Principal, the Administrator and the Principal Secretary to Government, Higher Education Department respectively requesting to permit her to work, pointing out that she was kept out of service without even issuing any orders. Thereupon, referring to its earlier letter dated 02.05.2016 and petitioner's representation Government issued Ext.P8 letter dated 10.06.2016 directing the Devaswom to accommodate the petitioner in another suitable post and in case no vacant post of Last Grade Servant was available in the College, to submit formal application through proper channel to downgrade the post of Lab Assistant temporarily. It is submitted that Government had ordered cancellation of petitioner's appointment as Lab Assistant on the ground that she did not have Attenders' test which is required as per the University Statutes. As respondents did not take any positive action even after the direction in Ext.P8 letter, petitioner filed this Writ Petition in December 2016, pointing out that vacancy of Peon was available under the Devaswom to accommodate her. She had also sought for a direction to permit her to continue as Lab Assistant. During the pendency of the Writ Petition, the Administrator issued Ext.P9 order dated 25.02.2017 canceling the petitioner's appointment as Lab Assistant and appointing her in the vacancy existed in the post of Office Attendant subject to approval by Government. It was ordered that she would be on probation from the date on which she joined duty in the post. Accordingly petitioner joined duty on 06.03.2017. When the matter was reported before this Court, an interim order was passed on 21.03.2017 directing that the 3rd respondent shall issue orders on regularisation of the period during which the petitioner was kept out of employment from 15.03.2016 upto the date of her reappointment. Thereafter the managing committee of the Devaswom decided to regularise her services from 18.03.2016 onwards. Ext.P10 order was issued on 11.4.2017 regularising her appointment as Office Attendant from 18.03.2016 onwards and authorising the Principal to take appropriate steps to get her appointment approved.

(3.) While so the Managing Committee in its meeting held on 16.01.2018 resolved to treat the period of absence of petitioner, from 18.03.2016 onwards as duty for all purposes except for payment of salary. The Deputy Director of Collegiate Education thereafter issued Ext.P12 order dated 03.11.2018 approving the appointment of petitioner as Office Attendant with effect from 18.03.2016 provisionally. In this order it was stated that the staff pattern of non teaching staff in aided colleges was revised as per G.O. dated 29.02.2016 and the post of Lab Assistant became supernumerary and one post of Office Attendant was created. It was stated that at the time of her appointment as Lab Assistant on 18.3.2016, 5 Office Attendants were working as against the available 5 posts. It was further stated that the petitioner could have been given appointment and given approval only on promotion of any of those OAs. It was stated that Sri.Gokul Krishna- the senior-most OA was granted promotion as Lab Assistant w.e.f. 27.06.2015, as per order dated 29.10.2018. The appointment of the petitioner as Office Attendant was approved provisionally w.e.f. 18.03.2016. It was ordered that before granting salary, the Deputy Director shall ensure that there is no staff in excess. In the statement annexed to Ext.P12 order petitioner's appointment was stated to be made against the vacancy which arose on promotion of Sri.Gokul Krishana on 27.6.2015. The Deputy Director thereafter issued Ext.P13 order directing the Principal to take steps to disburse salary to the petitioner. It was directed that the period from 01.04.2016 to 05.03.2017 when the petitioner was kept out of service shall be treated as LWA/eligible leave and that period from 18.3.2016 to 31.03.2016 and the period upto 6.3.2017 onwards shall be reckoned towards duty and on completion of one year service her probation can be declared.