IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 WP(C).No. 17023 of 2010(C) -------------------------- PETITIONER(S): --------------- SOLLY JOSEPH, W/O.ALBY TOM HSA (MALAYALAM), S.H.H.S.RAMAKALMEDU, RAMAKKALMEDU P.O., IDUKKI DISTRICT. BY ADV. SRI.GEORGE MECHERIL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI. 4. THE DISTRICT EDUCATIONAL OFFICER, IDUKKI. 5. THE CORPORATE MANAGER, DIOCESE OF KANJIRAPPALLY, KOTTAYAM DISTRICT. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 17023/2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 6.6.2008 BY THE FIFTH RESPONDENT. EXT.P2: COPY OF THE ORDER OF THE D.E.O. DATED 11.3.2009. EXT.P3: COPY OF GOVT. ORDER G.O.(P) NO.104/2008/G.EDN. DATED 10.6.2008. EXT.P4: COPY OF APPOINTMENT ORDER DATED 1.6.2009 ISSUED BY THE FIFTH RESPONDENT. EXT.P5: COPY OF ORDER NO.E.C.(2)/84849/09/DPI/K.DIS. DATED 5.3.2010. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.17023 of 2010 --------------------------------------------- Dated this the 18th day of October, 2010 JUDGMENT The petitioner was appointed as HSA (Malayalam) in SHHS, Ramakkalmedu in Idukki District with effect from 6.6.2008. The District Educational Officer, as per Exhibit P2 order, rejected the proposal for approval of appointment of the petitioner on the ground that as per the Government Order then in existence, the appointment order could not be approved. It is stated that the Government Order referred to in Exhibit P2 is G.O.(P) No.104/2008/G.Edn. dated 10.6.2008 which provides that if the period of appointment does not cover one academic year, that is, from the reopening day of the school after summer vacation to the closing day for summer vacation, the appointment shall be made only on daily wages. Aggrieved by Exhibit P2 order, the fifth respondent Manager took up the matter before the Deputy Director of Education in appeal. The appeal was disposed of as per Exhibit P5 order dated 5.3.2010 holding that the W.P.(C)No.17023/2010 2 appointment of the petitioner from 6.6.2008 to 31.3.2009 shall be on daily wage basis and that the appointment from 1.6.2009 can be approved on regular basis. 2. The prayer in the Writ Petition is to quash Exhibits P2 to P5 and for a declaration that the petitioner is entitled to get approval of appointment of HSA (Malayalam) with effect from 6.6.2008 with all consequential benefits including seniority. 3. The learned counsel for the petitioner submitted that G.O.(P) No.104/2008/G.Edn. dated 10.6.2008 was challenged in a batch of Writ Petitions and a Division Bench in Unni Narayanan vs. State of Kerala (2009(2) KLT 604) held that the Government Order was clearly against the statutory provisions and therefore invalid. It was held in paragraphs 11 and 12 of the judgment as follows : “11. In the result, the Writ Petition is allowed. The approval of Ext.P1 appointment order made on daily wage basis and up to W.P.(C)No.17023/2010 3 31.3.2009 is quashed. The petitioner's appointment shall be approved in the time scale of pay from 6.10.2008 to 7.7.2013 and she shall be retained in service as HSA till the vacancy is available. The order of approval shall be passed and arrears of salary shall be released to her, by the D.E.O. within six weeks from the date of production of a copy of this judgment. W.P.(C) Nos.25176, 27687, 29000, 29199, 30636, 30641, 33567, 34264, 36130, 36310, 36324, 36446, 36631 and 36733 of 2008, 475, 1312, 1586, 2039, 2169, 2388, 2527, 2668, 2912, 6640 & 7021 of 2009. 12. In the case of the Writ Petitioners in these cases, orders, if any passed, approving their appointments on daily wage basis, relying on Ext.P2 Government Order are quashed. All appointments, whether pending approval or already rejected, shall be considered/ reconsidered by the Educational Officers concerned and fresh orders shall be passed in the light of the declaration of law made by us in W.P. (C) No.25176 of 2008. The salary found due to be paid to the incumbents concerned shall be released immediately. The action in this regard W.P.(C)No.17023/2010 4 shall be completed within six weeks from the date of production of a copy of this judgment.” 4. The learned Government Pleader submitted that the Government filed Special Leave Petition before the Supreme Court challenging the judgment in Unni Narayanan vs. State of Kerala (2009(2) KLT 604) and that the SLP is pending. An interim order was granted by the Supreme Court holding that for the time being, the salary need be paid on the basis of G.O.(P) No.104/2008/G.Edn. dated 10.6.2008. In the light of the Division Bench decision in Unni Narayanan vs. State of Kerala (2009 (2) KLT 604) Exhibits P2, P4 and P5 are quashed. The District Educational Officer shall consider the proposal for approval of appointment of the petitioner on the basis of Exhibit P1 afresh in the light of the Division Bench decision in Unni Narayanan vs. State of Kerala (2009(2) KLT 604), as expeditiously as possible and at any rate, within a period of six weeks from the date of receipt of a copy of the judgment. Salary payable to the petitioner shall be in consonance with the interim order passed by the Supreme Court. It is also made clear that the order W.P.(C)No.17023/2010 5 passed by the District Educational Officer shall be subject to the decision of the Supreme court in Unni Narayanan's case. The Writ Petition is allowed as above. K.T.SANKARAN JUDGE csl