IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(C).No. 35861 of 2003(T) -------------------------------- PETITIONER: -------------- N. VANAJA, U.P.S.A., KUNHOME A.U.P. SCHOOL, P.O. NATTILAYAM, VALLAMUNDA, WAYANAD DISTRICT. BY MR.R.PARTHASARATHY, ADVOCATE. MS.S.LAKSHMY, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER MANANTHAVADY. 4. THE MANAGER, A.U.P. SCHOOL, KUNHOME, P.O. NATTILAYAM, VIA. VALLAMUNDA, WAYANAD DISTRICT. 5. REMA M.K., U.P.S.A., KUNHOME A.U.P. SCHOOL, P.O. NATTILAYAM, VALLAMUNDA, WAYANAD DISTRICT. 6. SREEKUMARI K., L.P.S.A. DO. 7. SATHEESAN V.K., U.P.S.A., DO. 8. BIJUMON. K., U.P.S.A., DO. WP(C).No. 35861/2003 ...2... 9. VALSALA T.K., L.P.S.A., DO. 10. SATHEESH BABU. A.E., U.P.S.A. DO. 11. MAHEENDRAN P.T., U.P.S.A., DO. BY MR.V.A.MUHAMMED, ADVOCATE, FOR R5 TO R11. MR.K.E.HAMZA, ADVOCATE, FOR R5 TO 11. MR.V.A. MUHAMMED, ADVOCATE. MS.M.R.SREELATHA, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35861/2003 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF JUDGMENT IN O.P.12040/98 DTD.19.7.99. EXT. P2 : COPY OF ORDER OF APPOINTMENT OF PETITIONER DTD.3.9.99. EXT. P3 : COPY OF ORDER OF DDE DTD.24.11.99 EXT. P4 : COPY OF ORDER DTD.30.3.00. EXT. P5 : COPY OF GOVT. ORDER DTD.1.9.03. EXT. P6 : COPY OF ORDER DTD.28.1.98 ISSUED BY THE Deputy Director of Education, WAYANAD. EXT. P7 : COPY OF ORDER DTD.21.12.98 ISSUED BY ADDITIONAL DIRECTOR. EXT. P8 : COPY OF REPRESENTATION DTD.1.11.99 SUBMITTED BEFORE THE ASSISTANT EDUCATIONAL OFFICER, MANANTHAVADY. EXT. P9(a) : COPY OF ACKNOWLEDGMENT. EXT. P9(b) : COPY OF ACKNOWLEDGMENT. EXT. P10 : COPY OF REPRESENTATION DTD.31.3.04. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.35861 OF 2003 --------------------------------------- Dated this the 7th day of December, 2009. J U D G M E N T ] The dispute herein has got a chequered history. It is the contention of the learned counsel for the petitioner that the petitioner is entitled for appointment in the school from 02.06.1997 in implementation of Exhibits P6 and P7 orders which have been affirmed by the judgment of this Court Exhibit P1. The Manager appointed the petitioner only with effect from 03.09.1999. 2. The petitioner is presently working as U.P.S.A in the 4th respondent's school. She had an earlier spell of service in a temporary vacancy from 14.06.1994 to 16.08.1994 which was approved and thus she became a claimant under Rule 51A of Chapter XIV A of Kerala Education Rules. A permanent vacancy arose on 02.06.1997. The Manager appointed the 5th respondent in that vacancy and ultimately, the above dispute was resolved W.P.(C) No.35861/2003 2 by the Deputy Director of Education as per Exhibit P6 order. Therein a direction was issued to the Manager to appoint the petitioner with effect from 02.06.1997 and to forward the copy of the order. In appeal filed by the Manager, the said order was affirmed by the Additional Director of Public Instruction by Exhibit P7. 3. The parties had approached this Court by filing various writ petitions which culminated in Exhibit P1 judgment. This Court refused to interfere with the impugned orders therein. The writ petition filed by the petitioner namely, O.P.No.12040/1998 was allowed. A specific direction was issued in Exhibit P1 that after giving approval of appointment to the petitioner in O.P.No.12040/1998 as directed, the approval of appointment of other teachers may be granted according to the eligibility and law expeditiously. But, still the petitioner was granted appointment as per Exhibit P2 only with effect from 03.09.1999. Meanwhile, the contesting respondents were seeking for payment of salary for the period they worked and finally by Exhibit P5, the Government passed an order wherein it was stated that seven W.P.(C) No.35861/2003 3 teachers whose names are mentioned therein will be entitled for payment of salary for the period they had worked. It was also specified therein that the said period will be counted only for the purpose of salary and allowance and they will not be granted any other service benefits in the light of the direction to pay salary to them. Even though the contesting respondents had prayed for grant of approval of the period prior to the approval granted to the petitioner's appointment ie. from 03.09.1999, that was not accepted by the Government. In the light of Exhibit P1 judgment, they are not entitled for approval from a prior date. 4. Heard the learned counsel for the petitioner, learned counsel appearing for the contesting respondents and the learned Government Pleader. 5. Learned counsel for the petitioner submitted that the legal right of the petitioner will be affected by Exhibit P5 and the same goes against the directions in Exhibit P1 also. It is pointed out that the teachers in whose favour Exhibit P5 order was passed are not entitled for grant of approval for those periods and therefore, the direction to pay salary cannot be justified. W.P.(C) No.35861/2003 4 6. Learned counsel for the contesting respondents submitted that it is not for the fault of theirs, the payment of salary was denied and the Government has only recognized their right to get salary for the period they had worked. It is also pointed out that it is upto the petitioner to move the authorities for getting approval from 02.06.1997. Even though notice was served in the writ petition on the Manager, there is no appearance for the Manager. Obviously, Manager has therefore not disputed the claim of the petitioner. 7. It is evident from Exhibit P1 judgment that the orders passed by the Educational Officers have been affirmed by this Court and the challenge against those orders have been repelled. Therefore, the entitlement of the petitioner for appointment from 02.06.1997 cannot be disputed at this distance of time. It is only natural that the petitioner is aggrieved by Exhibit P5 as others have been paid salary. But, the real grievance of the petitioner is for grant of approval of appointment from 02.06.1997. Going by the details available in Exhibit P5, the other teachers were appointed for the period from 05.06.1997 to 03.08.1998. But, W.P.(C) No.35861/2003 5 their appointments have been approved only in different vacancies from 03.09.1999 as evident from the latter part of Exhibit P5 itself. Therefore, by paying salary to them for the period they had worked, the petitioner's right to get approval from 02.06.1997 will not be affected. In that view of the matter, the challenge against Exhibit P5 is repelled. 8. But, the same will not redress the grievance of the petitioner. The Manager has not so far produced the appointment order appointing the petitioner in a vacancy from 02.06.1997. Even though the salary has been ordered to be paid by the Government as per Exhibit P5 to those teachers (contesting respondents herein), it has been made clear therein by the Government itself that mere payment of salary will not entitle them for any service benefits. In that view of the matter, there cannot be any objection especially in the light of Exhibit P1 judgment to approve the appointment of the petitioner from 02.06.1997, as none of them are entitled for a vacancy as on that date. Seeking for such a relief, the petitioner had moved the Assistant Educational Officer concerned by Exhibit P8. But, still W.P.(C) No.35861/2003 6 the Assistant Educational Officer will be able to take action in the matter only if the Manager produces the order of appointment with effect from 02.06.1997 in favour of the petitioner. Therefore, this writ petition is disposed of directing the 4th respondent Manager to produce the revised proposal of appointment of the petitioner from 02.06.1997 as U.P.S.A ie. the first vacancy to which one of the contesting respondents was appointed, within a period of three weeks from the date of production of a copy of this judgment, before the 3rd respondent Assistant Educational Officer. The 3rd respondent will pass appropriate orders for grant of approval of the said appointment, based on which the petitioner will be entitled for consequential benefits also. If the Manager doesn't produce the order of appointment as directed above, the Assistant Educational Officer will take appropriate action to see that the direction as above is complied with. If there is no other objection for implementing Exhibit P5 in favour of the contesting respondents, they will be disbursed salary as directed in Exhibit P5 and the payment of salary to the contesting respondents herein will not affect the W.P.(C) No.35861/2003 7 rights of the petitioner herein for service benefits as the petitioner is liable to be treated as senior to them. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp