IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 28014 of 2008(I) --------------------------------------- PETITIONER(S): ------------------------ SAJINA.K.P. , ASSISTANT TEACHER, CHERANDATHUR LP SCHOOL, P.O.CHERANDATHUR, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA REP. BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION,TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE ASSISTANT EDUCATIONAL OFFICER, VADAKARA. R1 TO R4 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28014/2008 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DTD. 5/06/2000 AND THE ORDER OF APPROVAL. P2: COPY OF THE RELEVANT PAGE OF THE STAFF FIXATION ORDER DTD. 14/07/2005 OF CHERANDATHUR LPS. P3: COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 3/2/2006. P4: COPY OF THE ORDER OF THE 4TH RESPONDENT DTD. 5/07/2006. P5: COPY OF THE ORDER OF THE 4TH RESPONDENT. P6: COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 25/05/2007. P7: COPY OF THE REVISION DT. 16/06/2007 FILED BY THE PETITIONER. P8: COPY OF THE ORDER DTD. 27/05/2008 OF THE 1ST RESPONDENT. P9: COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF SRI.C.C.KUNHIRAMAN. P10: COPY OF THE PROCEEDINGS OF THE MANAGER CHERANDATHUR L.P.SCHOOL DTD. 1/06/2006. P11: COPY OF THE ORDER OF THE 4TH RESPONDENT DTD. 22/11/2006. P12: COPY OF THE ORDER OF THE DEO VADAKARA DTD. 18/08/2007. P13: COPY OF THE ORDER OF THE DPI DTD. 16/04/2008. RESPONDENT'S EXHIBTS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.28014/2008-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of June, 2011 J U D G M E N T The petitioner is aggrieved by Ext.P8 order and later orders passed by the Government whereby the eligibility of the petitioner for receipt of salary for the period from 01/04/2006 to 31/05/2006 is now declined. She was appointed as Assistant Teacher with effect from 05/06/2000 onwards and the said appointment was approved as per Ext.P1. During the year 2005-06, one class division was reduced and the petitioner was liable to be retrenched with effect from 15/07/2005 being the junior most teacher which is evidenced from Ext.P2 staff fixation order. But, another teacher one Shri C.C.Kunhiraman, whose date of retirement was 31/05/2006 took half pay leave from 13/07/2005 to 31/05/2006. In the appeal filed by the Manager against the staff fixation order, the third respondent passed Ext.P3 order whereby the claim of the petitioner for continuance in the school from 15/07/2005 to 31/05/2006 was allowed. Later, the Assistant Educational Officer issued a consequential order as per Ext.P4. Going by W.P.(C). No.28014/2008 -:2:- the said order, the petitioner was accommodated from 15/07/2005 to 31/05/2006 in the leave vacancy of Shri C.C.Kunhiraman for the same period. But later, the Assistant Educational Officer suo moto modified it by Ext.P5 order, restricting the period only upto 31/03/2006 and with a direction to recover the salary for two months period. The petitioner filed an appeal against Ext.P5 before the Deputy Director of Education but the order was confirmed by Ext.P6 order. Further challenge before the Government resulted in Ext.P8 order. When the said teacher, Shri C.C.Kunhiraman retired from service, the petitioner was appointed as per Ext.P10 order by the Manager w.e.f.01/06/2006. The proposal for approval was rejected as per Ext.P11 order. The matter was taken up in appeal and in revision before the District Educational Officer and Director of Public Instruction respectively. The Director of Public Instruction by Ext.P13 took the view that the approval granted from 05/06/2006 onwards is correct. All these orders are challenged in this writ petition. W.P.(C). No.28014/2008 -:3:- 2. The learned counsel for the petitioner submitted that Ext.P8 order passed in revision is without hearing the petitioner and on that ground itself, it cannot survive. It is further submitted that the reason stated in Ext.P8 that Shri C.C.Kunhiraman did not avail leave from 01/04/2006 to 31/05/2006 is also not correct. My attention was invited to the relevant page of the service book of Shri C.C.Kunhiraman which is produced as Ext.P9. Further, it is pointed out that the said teacher did not rejoin duty and he retired from service on 31/05/2006. Therefore at no point of time the period from 01/04/2006 to 31/05/2006 was not treated otherwise than as leave as far as the said teacher is concerned. It is further pointed out that since the petitioner was continuing in service, he was entitled for appointment in regular vacancy which arose on 01/06/2006 and, therefore, non approval of the said period from 01/06/2006 to 04/06/2006 is also not justified. 3. In the counter affidavit filed by the third respondent, the orders are sought to be justified and it is pointed out that Shri C.C.Kunhiraman had not W.P.(C). No.28014/2008 -:4:- taken any kind of leave during April, 2006 and May, 2006 and there was no vacancy to provide for the petitioner. 4. This is a crucial aspect to be considered in detail. Evidently, the revision petition was disposed of without hearing the petitioner. In the light of the fact that the teacher Shri C.C.Kunhiraman did not rejoin duty as contended by the petitioner, the plea now raised that he had received salary for the disputed period and had not submitted the leave application, prima facie is not correct. But it requires detailed examination and that too, based on the service records of Shri C.C.Kunhiraman. In that view of the matter, the Government will reconsider the revision petition which resulted in Ext.P8 order. 5. Therefore, Ext.P8 order is quashed. There will be a direction to the Government to reconsider the matter after hearing the petitioner and pass appropriate orders within a period of four months from the date of receipt of a copy of this Judgment. Depending upon the orders to be passed by the Government, the claim for regularisation from W.P.(C). No.28014/2008 -:5:- 01/06/2006 to 04/06/2006 will be considered by the Department. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms