IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 21978 of 2003(N) -------------------------- PETITIONER(S): --------------- REJI RASALAM, S/O RASALAM, AGED 31 YEARS HIGHER SECONDARY SCHOOL TEACHER (MATHS) P.K.S.HIGHER SECONDARY SCHOOL, KANJIRAMKULAM, TRIVANDRUM-695 524. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, TRIVANDRUM. 4. THE MANAGER, P.K.S.HIGHER SECONDARY SCHOOL, KANJIRAMKULAM, TRIVANDRUM-695 524. BY GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON 06/03/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : APPROVAL WAS REJECTED VIDE ORDER NO.82-18/98 DATED 6/99 EXHIBIT P2 : 20.3.2002 REVISION PETITION FILED BEFORE THE GOVERNMENT. EXHIBIT P3 : 27.3.2003 GOVERNMENT REJECTED THE REVISION PETITION. EXHIBIT P4 : 19.1.2001 GOVERNMENT SANCTIONED PAY AND ALLOWANCE TO SIMILAR PERSONS. EXHIBIT P5 : 7.8.1985 THIS HON'BLE COURT HELD THAT REFUSAL TO APPROVE THEIR APPOINTMENT WOULD HAVE THE UNFORTUNATE CONSEQUENCE OF DENYING TO THE TEACHERS THE SALARY AND ALLOWANCES FOR THE PERIOD THEY HAD ACTUALLY WORKED. //TRUE COPY// PA TO JUDGE P.N.RAVINDRAN, J. ------------------------------ W.P(C) No.21978 of 2003-N -------------------------------- Dated this the 6th day of March, 2009. J U D G M E N T Heard the learned counsel appearing for both sides. The petitioner had prior approved service as UPSA in the fourth respondent’s school during the period from 25.9.1995 to 16.12.1995 and from 4.1.1996 to 11.3.1996. During the academic year 1996-97, the District Educational Officer had sanctioned 6 posts of HSA (Science), 5 posts of HSA (Mathematics) and 5 posts of HSA (Social Studies). During the academic year 1997-98, 1 post each of HSA (Science) and HSA (Social Studies) was rendered surplus. During the academic year 1997-98, Sri.S.Simon HSA (Mathematics) was appointed as Headmaster of the school. In that vacancy the Manager appointed Smt.S.T.Beena, a Rule 51A claimant as HSA (Mathematics). Since the District Educational Officer in the staff fixation order directed that Smt.R.Pramila, the surplus HSA (Physical Science) should be accommodated in the vacancy of HSA (Mathematics) that arose on the promotion of Sri.S.Simon as Headmaster, the appointment of Smt.S.T.Beena as HSA W.P(C) No.21978 of 2003-N 2 (Mathematics) was not approved by the Educational Officers and by the State Government. O.P.No.6752 of 2000 filed by Smt.S.T.Beena in this Court challenging the orders passed by the Educational Officers and the State Government was dismissed by a learned Single Judge of this Court by judgment delivered on 24.10.2001. The said judgment has become final. 2. After Smt.S.T.Beena was appointed as HSA (Maths), the Manager appointed the petitioner as HSA (Maths) in two leave vacancies during the period from 23.9.1997 to 18.12.1997 and from 30.12.1997 to 16.3.1998. The appointments were in the leave vacancy of Smt.S.Christy Bai who retired from service on 31.5.1998. In the said retirement vacancy, the Manager appointed the petitioner who continued in that vacancy till 6.8.2000. The said appointment was not approved for the reason that the appointment of Smt.S.T.Beena, the senior Rule 51A claimant in the promotion vacancy of Sri.S.Simon that arose on 1.6.1998 had not been approved. The petitioner challenged the order passed by the District Educational Officer declining to approve her appointment before the Government. By Ext.P3 order passed on 27.3.2003, the Government concurred with the District Educational Officer and W.P(C) No.21978 of 2003-N 3 declined to approve the petitioner's appointment in the leave vacancies and also in the regular vacancy with effect from 1.6.1998. Ext.P3 is under challenge in this writ petition. 3. Ext.P3 discloses that during the academic year 1997-98, a science teacher was rendered surplus and she was accommodated in the vacancy of HSA (Mathematics) that arose when Sri.S.Simon was promoted as Headmaster. As a result, the appointment of Smt.S.T.Beena, the senior Rule 51A claimant as HSA (Mathematics) was not approved. The petitioner was appointed as HSA (Mathematics) in the vacancy that arose on 1.6.1998 on the retirement of Smt.S.Christy Bai. From the materials on record, it is evident that the petitioner could not have been appointed as HSA (Mathematics) either in the leave vacancy during the period from 23.9.1997 to 18.12.1997 and from 30.12.1997 to 16.3.1998 or in the retirement vacancy of Smt.S.Christy Bai, that arose on 1.6.1998, for the reason that Smt.S.T.Beena a senior Rule 51A claimant had superior claim for being appointed against the said vacancies. In view of the judgment of this Court in O.P.No.6752 of 2000, Smt.S.T.Beena cannot claim appointment in the vacancy that arose on the promotion of Sri.S.Simon as Headmaster. Since W.P(C) No.21978 of 2003-N 4 Smt.S.T.Beena is a senior Rule 51A claimant, the petitioner cannot claim that her appointment in the leave vacancies during the period from 23.9.1997 to 18.12.1997 and from 30.12.1997 to 16.3.1998 should be approved. The petitioner could not have been appointed as HSA (Mathematics) in the vacancy that arose on 1.6.1998 on the retirement of Smt.S.Christy Bai for the reason that Smt.S.T.Beena the senior 51A claimant had to be accommodated in that vacancy. This was necessitated since Smt.R.Pramila HSA (Physical Science) had to be accommodated in the promotion vacancy of Sri.S.Simon, HSA (Mathematics) in terms of the staff fixation order. I am therefore in agreement with the Government that there was no vacancy to accommodate the petitioner on 1.6.1998. 4. The learned counsel for the petitioner, relying on the decision of the Apex Court in Deepa Augustine V Geetha Alex (2008(2) KLT 771 (SC) contended that the vacancy of HSA (Maths) cannot be occupied by HSA (Physical Science). The learned counsel contended that the Apex Court has in the aforesaid decision overruled the decision of this Court in Philomina V. State of Kerala (2002(2) KLT 519) and therefore Smt.R.Pramila, HSA (Physical Science) had no right to be accommodated in the post of HSA W.P(C) No.21978 of 2003-N 5 (Mathematics). While I find merit in the said contention, I am not in a position to grant the petitioner any relief in this writ petition for the reason that neither Smt.R.Pramila nor Smt.S.T.Beena are before me. Further in the writ petition filed by Smt.S.T.Beena in which Smt.R.Pramila and the respondents in this writ petition were on the party array, this Court had held that Smt.R.Pramila is entitled to be accommodated in the vacancy of HSA (Maths) that arose on the promotion of Sri.S.Simon as Headmaster of the school. The State of Kerala and the Manager of the school are bound by the judgment of this Court in O.P.No.6752 of 2000. The rights of Smt.S.T.Beena are also governed by the said decision. Therefore Smt.S.T.Beena cannot claim the vacancy that arose on the promotion of Sri.S.Simon, as Headmaster. The Government have in Ext.P3 stated that the petitioner is not entitled to be appointed in the vacancy that arose on 1.6.1998 on the retirement vacancy of Smt.S.Christy Bai, since Smt.S.T.Beena, the person appointed in earlier point of time has to be accommodated in the retirement vacancy that arose on 1.6.1998. The said state of affairs have been in existence for the past nearly a decade. I therefore find not merit in the challenge to Ext.P3. 5. The learned counsel for the petitioner submits that even W.P(C) No.21978 of 2003-N 6 if the petitioner’s appointment for the period from 23.9.1997 to 18.12.1997, 30.12.1997 to 16.3.1998 and from 1.6.1998 to 6.8.2000 is not approved, he is entitled to salary and allowances for the period during which he had worked. The learned counsel for the petitioner relies on Ext.P4 Government order and Ext.P5 judgment of this Court in support of the said contention. A reading of Ext.P3 discloses that the petitioner had actually discharged the duties of HSA (Mathematics) during the period from 23.9.1997 to 18.12.1997, 30.12.1997 to 16.3.1998 and from 1.6.1998 to 6.8.2000. The Government have in Ext.P4 taken the stand that it is not legal to deny payment of salary and allowances for the period the employee has actually worked. In Ext.P5, a learned Single Judge of this Court has in similar circumstances held that teachers who were appointed and had worked, should not, as far as possible, be denied payment of salary and allowances for the period they had actually worked. 6. Going by the stand taken by the Government in Ext.P4 and the principles laid down by this Court in Ext.P5 judgment, I am of the opinion that the Government should consider whether having regard to the fact that the petitioner had worked in the school, he W.P(C) No.21978 of 2003-N 7 should not be paid salary and allowances for the period he had actually worked. The Government shall also consider whether the staff pattern has changed after the academic year 1999-2000 and whether the petitioner can be accommodated against a vacancy that had arisen thereafter, taking into account the law laid down by the Apex Court in Deepa Augustine V. Geetha Alex (2008(2) KLT 771 (SC). The petitioner shall in order to enable the Government to act as directed above file an appropriate representation before the Secretary to Government, General Education Department within six weeks from today. The Government shall within four months from the date of receipt of the said representation consider the same and pass appropriate orders thereon, after notice to the petitioner and the Manager of the school an opportunity of being heard. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab W.P(C) No.21978 of 2003-N 8