IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 OP.No. 38646 of 2002(A) ----------------------------------- PETITIONER(S): --------------------- A. SOBHANA, W/O. R. PRASANTH, AGED 29 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, SARVAJANA HIGH SCHOOL, PUTHUCODE, PALAKKAD DISTRICT. BY ADV. SRI.V.A.MUHAMMED, SRI.E.S.ASHRAF. RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 4. THE MANAGER, SARVAJANA HIGH SCHOOL, PUTHUCODE, PALAKKAD DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT.RANI DIOTHIMA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 38646 of 2002(A) ORDER ON C.M.P. NO.65146/2002 IN O.P. NO. 38646/2002 DISMISSED 30/05/2011. SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER. EXT.P2: COPY OF THE APPOINTMENT ORDER. EXT.P3: COPY OF THE APPOINTMENT ORDER. EXT.P4: COPY OF THE APPOINTMENT ORDER. EXT.P5: COPY OF THE ORDER NO.B1-3989/2000/L. DIS. OF THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER NO.EMS/61646/01/DPI OF THE 2ND RESPONDENT. EXT.P7: COPY OF THE G.O.(RT) NO.3967/02/G.E. OF THE GOVERNMENT. EXT.P8: COPY OF THE ORDER NO.B1/3980/2000/K. DIS. OF THE 3RD RESPONDENT. EXT.P9: COPY OF THE PETITION FILED BEFORE THE GOVT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs T.R.RAMACHANDRAN NAIR,J. ------------------------------------- O.P.No.38646 Of 2002 -A ----------------------------------------------------- DATED THIS THE 30th DAY OF MAY, 2011 J U D G M E N T Challenge is against Exhibit P5 order which has been confirmed in revision by the Director of Public Instruction as per Exhibit P6 and by the Government as per Exhibit P7. 2. The petitioner was initially appointed as an Upper Primary School Assistant in a retirement vacancy from 17.11.1995 to 20.1.1996, which was approved as per Exhibit P1. She became a Rule 51A claimant and therefore she was later accommodated in the promotion vacancy of Smt.Jessy Thomas on 3.6.1996. That appointment was later shifted to the leave vacancy from 16.7.1996, which was also approved as per Exhibit P2 order dated 16.7.1996. 3. The incumbent who was on leave returned on 5.7.1999 and therefore the petitioner could continue only till 4.7.1999, even though approval was granted upto 14.7.2000. Thereafter, the Manager shifted the petitioner to the promotion vacancy of the UPSA from 3.6.1996. But that was not approved. O.P.No.38646/02 -2- 4. The petitioner is now continuing in service based on appointment in a regular vacancy from 6.6.2001 which has been approved. 5. The problem arose for the petitioner when Exhibit P2 order was revoked by Exhibit P5 by the District Educational Officer without notice by stating that as per the Staff Fixation during 1996-97, the school was sanctioned 22 posts of UPSAs and three excess staffs were given the benefit of G.O.(P) No.240/99/Gen.Edn. dated 29.9.1999 and there was no provision for appointing the petitioner. Finding that the approval granted is not in order, Exhibit P5 order was passed. 6. It was contended by the learned counsel for the Manager in the Revision Petition that four UPSAs were given promotion as HSAs and therefore the appointment is done in a regular manner. But the said contention could not be established by the Director of Public Instruction and hence Exhibit P5 order was confirmed by Exhibit P6. The same reasoning has been reiterated by the Government also in Exhibit P7. 7. The learned counsel for the petitioner submitted that O.P.No.38646/02 -3- there were established vacancies for accommodating the petitioner and the finding otherwise is not correct. My attention was invited to the grounds stated in the Writ Petition. It is also pointed out that the District Educational Officer has no power to revoke the order granting approval, namely Exhibit P2, by a later order issued as per Exhibit P5. 8. True, there is no suo motu power for review, conferred on the District Educational Officer. The said order has been confirmed in revision by the Director of Public Instruction and now the Government has also exercised the power under Rule 92. Therefore, there is ample power for the Government to consider the irregularity in the grant of approval. Hence the said contention will not help the petitioner. 9. With regard to the availability of sufficient posts, no documentary evidence has been produced in the Writ Petition. The Manager has also not produced any records to show that four UPSAs were promoted and fresh promotion vacancies were available to accommodate the petitioner. 10. Therefore, the conclusion arrived at by the District O.P.No.38646/02 -4- Educational Officer that there were 25 persons working and sanctioned posts were only 22 cannot be said to be wrong. If that be so, as three excess staffs were accommodated based on certain Government Orders, there was no scope for appointing a fresh hand like the petitioner. Therefore, the reasons stated in Exhibits P5, P6 and P7 cannot be held to be wrong and the orders are therefore not liable to be interfered with in these proceedings. 11. The learned counsel for the petitioner then brought to my notice the proceedings of the Government namely, G.O.(Rt) No.1442/2006/G.Edn. Dated 4.4.2006 in a revision petition filed by another teacher namely Sri K.Viju, HSA (Mathematics) wherein the statement of facts show that the issue that was considered by the Government was regarding the number of sanctioned posts of UPSAs during the identical period, namely, 1997-98. 12. Finally, the Government directed to regularise the appointment by accommodating the petitioner against the resignation vacancy of Shri K.P.Gopinath with effect from O.P.No.38646/02 -5- 1.10.1997. Consequently, the Deputy Director of Education, Palakkad has issued an order No.B4-8749/2006 dated 6.7.2006 whereby the appointment of the petitioner as UPSA in the resignation vacancy of Shri K.P.Gopinath has been regularised with effect from 1.10.1997, Smt.Y.Bindu's appointment has been regularised from 1.6.1998 and that of Shri K.Viju as UPSA has been regularised with effect from 15.7.1998. 13. Therefore, what remains now to be considered is the direction to refund salary which will now be confined to the period from 16.7.1996 to 1.10.1997. Evidently, the petitioner has worked during the said period and the school was benefited by her appointment also. The appointment which was approved as per Exhibit P2 order, alone enabled her to claim salary. This was recalled only after about four years by Exhibit P5. Therefore, the submission by the learned counsel that the salary already paid may not be directed to be refunded is only reasonable. 14. Therefore, the orders impugned, Exhibits P5 to P7 are upheld. But, as already noticed, in view of the subsequent Government Order dated 4.4.2006 as per G.O.(Rt) O.P.No.38646/02 -6- No.1442/2006/G.Edn. and the order passed by the Deputy Director of Education, Palakkad dated 6.7.2006, the appointment will be treated as regular from 1.10.1997. It is made clear that the orders passed by the Government as per Exhibits P5,P6 and P7 are upheld subject to the above modification and with a direction not to recover any salary from the petitioner. It is also made clear that no recovery of the said amount will be made against the Headmaster, Manager or any other Officers of the Department on this account, in the peculiar facts of this case. The Writ Petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn