IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WP(C).No. 5650 of 2007(V) -------------------------------------- PETITIONER(S): ------------------------- P. SARADA, SEWING TEACHER, KULP SCHOOL, VENGOOR, THEVANNOOR P.O., KOLLAM DISTRICT. BY ADV. SRI.T.RAVIKUMAR RESPONDENT(S): --------------------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, VELIYAM, KOLLAM. 4. THE MANAGER, KULP SCHOOL, VENGOOR, THEVANNOOR P.O. * 5. THE MANAGER, NEERVELI U.P. SCHOOL, NEERVELI, LONDON HOUSE, P.O. KADIRUR, KANNUR-670642. ( D E L E T E D) *5TH RESPONDENT IS DELETED AS EPR ORDER DTD. 9/03/2007 IN I.A.NO.3390/07. GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 TO 3 ADV. SRI.ANUP.R. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON 29/10/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.5650/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER NO.F-1553/99 DTD. 26/10/1999 ISSUED BY R2 TO R3. RESPONDENT'S EXHIBIT: EXT.R4(A): REQUEST TO THE DIRECTOR OF PUBLIC INSTRUCTION. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 5650 OF 2007 V = = = = = = = = = = = = = = = Dated this the 29th day of October 2008 J U D G M E N T The prayer in this writ petition is to direct the respondents to approve the appointment of the petitioner based on Ext. P1 report and to grant consequential benefits. 2. Petitioner submits that she was appointed as a Sewing Teacher with effect from 1.6.1989 in a retirement vacancy in the school of which the 4th respondent is the Manager. According to her, she is not being paid salary from the date of appointment and she is continuing to work without salary. It is stated that the authorities are keeping silence with regard to the approval of the appointment of the petitioner and that led to non-payment of salary. 3. Petitioner contends that Ext. p1 is a report made by the AEO informing the DPI that there is no other specialist teacher in the school and that from 1989 onwards till 2000 on an average, 128 W.P.(C) No. 5650 OF 2007 -2- students have been attending the sewing class. It is also stated that the petitioner is a fully qualified person. Therefore, what the petitioner wants is that her appointment should be approved and on that basis she should be paid salary and other benefits. 4. However, it is seen from the counter affidavit that the Manager appointed the petitioner as a Part-time Sewing Teacher with effect from 1.6.1989 in the retirement vacancy of Smt. G. Indiramma, Sewing Mistress who retired from service on 31.3.1989. It is stated that Smt. Indiramma was working in the school from 3.7.1962 and was granted protection as per G.O.(MS) 56/71/G. Edn. dated 19.5.1971 with effect from 8.6.1971. According to the respondents as the post was a protected one, there was no scope for continuing the post once the incumbent retired from service. It is stated that on the retirement of the incumbent, the post was abolished in terms of the provisions contained in Rule 2 of Chapter XXIII, K.E.R. 5. It was for the above reasons the appointment of the petitioner was rejected by the AEO. The Manager preferred an appeal. That was rejected by the Deputy Director, Kollam by order W.P.(C) No. 5650 OF 2007 -3- dated 13.10.1989 and the D.P.I. also rejected the appeal vide order dated 28.3.1990. In so far as Ext. P1 report is concerned, it is stated that the figures mentioned in Ext. P1 were those supplied by the Manager and that the effective strength is much less than what is stated therein. In so far as the petitioner's contention that the DPI had scheduled a hearing on her request in 1998 and that there has not been any progress in the matter, it is stated that the D.P.I. also considered the matter and rejected her complaint by order dated 17.9.1998. 6. Thus the dispute boils down to the petitioner's claim for approval of her appointment. Only if her appointment is approved, can the petitioner claim salary from the respondents. As already noticed, the retired teacher was a protected hand. If that be so, once the protected hand has retired, the post could not have been filled up. In addition to this, the post itself has been abolished as early as in 1989-90. If this be the factual situation, if at all the petitioner has been appointed with effect from 1.6.1989, such appointment was obviously irregular and the State cannot be saddled with any liability arising therefrom. W.P.(C) No. 5650 OF 2007 -4- 7. Once rejection of her appointment by the AEO which has been confirmed by all other authorities is upheld, the claim of the petitioner for salary is only to be rejected. Relying on the Full Bench decision of this Court in Jolly v. State of Kerala {2003(2) KLT 192} counsel for the petitioner contended that the Government is bound to pay salary and other allowances for the period the petitioner had worked and that thereafter it is upto them to recover the amount from the Manager. Though this argument would appear to be attractive at the first blush, I am not persuaded to accept this contention either. Unlike the case dealt with by the Full Bench, in this case the post itself was abolished way back in 1989-90 and approval was rejected by the AEO and that was confirmed by the Deputy Director by his order dated 13.10.1989 and the DPI by his order dated 28.3.1990. Once the question of approval has become final if the petitioner was allowed to continue in the school, it can only be at the peril of the Manager and not at the peril of the State or the educational authorities. That apart, in paragraph 2 of the counter affidavit the D.E.O. has also stated that since the rejection of her approval, “the teacher was not continuing in the school”. W.P.(C) No. 5650 OF 2007 -5- Thus, for both reasons, I am not persuaded to direct respondents 1 to 3 to pay the salary or other allowances to the petitioner. If the petitioner has worked as stated by her it is upto her to claim and realise the amounts due from the Manager and not from the State or the educational authorities. I am not persuaded to grant any relief. Writ petition fails and is dismissed. ANTONY DOMINIC JUDGE jan/-