IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 17884 of 2008(D) ---------------------------------------- PETITIONER(S): ------------------------- DEEPA CHANDRAN, L.P.S. ASSISTANT, THARAYIL L.P. SCHOOL, PALLARIMANGALAM P.O., MAVELIKKARA. BY ADV. MR.S.PRAKASH RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION (H) DEPRTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA, ALAPPUZHA P.O., 3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, MAVELIKKARA P.O., 4. THE ASSISTANT EDUCATIONAL OFFICER, MAVELIKKARA. 5. THE MANAGER, THARAYIL L.P. SCHOOL, PALLARIMANGALAM P.O., MAVELIKKARA. R1- R4 BY GOVERNMENT PLEADER MR.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17884/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS AND STAFF FIXATION STATEMENT FOR THE ACADEMIC YEAR 04-05 OF THE 4TH RESPONDENT AEC.. P2:- COPY OF THE APPOINTMENT ORDER OF H.M. OF THE 5TH RESPONDENT SCHOOL DTD. 1.4.04. P3:- COPY OF THE APOINTMENT ORDER OF THE PETITIONER DTD. 8.11.04 IN THE 5TH RESPONDENT SCHOOL. P4:- COPY OF THE ORDER OF THE 3RD RESPONDENT DEO DTD. 15.4.05. P5:- COPY OF THE ORDER OF THE 4TH RESPONDENT AEO DTD. 29.4.05. P6:- COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 20.2.08 DEMANDING REFUND OF VACATION SALARY. P7:- COPY OF THE ORDER OF THE IST RESPONDENT DTD. 5.4.08. P8:- COPY OF THE G.O.(P) 169/04/G.EDN. DTD. 15.6.04. P9:- COPY OF THE G.O.(RT) NO.3534/06 G.EDN. DTD. 10.8.06. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17884 of 2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2009. JUDGMENT The petitioner herein is working as LPSA in Tharayil L.P. School, managed by the 5th respondent. She was appointed as per Ext.P3. The 4th respondent granted approval of appointment on daily wage basis from 8.11.2004 to 31.3.2005. Actually, the petitioner was appointed in a permanent vacancy of Smt. O. Suhamakumari, who had been promoted as Headmistress with effect from 1.4.2004. 2. The Manager filed an appeal against the order granting approval on daily wage basis. The appeal was allowed as per Ext.P4. Consequential orders were also passed by the Asst. Educational Officer as per Ext.P5. The approval of appointment of the petitioner was granted with effect from 8.11.2004 and subsequently her probation was also declared. The petitioner was drawing full salary and allowances from time to time. The third respondent, by Ext.P6, withheld the payment of salary. This was based on the objections raised by the audit. The objection was that the period of service from 8.11.2004 is less than eight months and therefore, the salary received for the vacation period will have to be reimbursed. Thereafter, the 17884/2008 2 petitioner challenged the same by filing a representation before the first respondent. As per Ext.P7, the first respondent directed approval of appointment of the petitioner on daily wage basis from 8.11.2004 to 31.3.2005 in terms of G.O.(P) No.169/04/G.Edn. dated 15.6.2004. The petitioner challenges Exts.P7, P8 and P9 Govt. Orders which are in force at that point of time. 3. Learned counsel for the petitioner submitted that the issue is covered in favour of the petitioner in the light of the decision of a Division Bench of this Court in Unni Narayanan v. State of Kerala (2009 (2) KLT 604). Therein, Ext.P9 Govt. Order produced herein was under challenge. Inter alia, it was held that a Govt. Order cannot be pressed into service without amending the rules. Therefore, the petitioner is entitled to succeed in this writ petition. Herein, the appointment of the petitioner has been approved by the orders passed by the educational officers concerned. Therefore, the audit objection cannot survive. In that view of the matter also, Exts.P6 and P7 are quashed. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/