IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 7195 of 2008(F) -------------------------------------- PETITIONER(S): ----------------------- V.SUDHI, PHYSICAL EDUCATION TEACHER, ATHMA VIDYA SANGHAM UP SCHOOL, CHERUVANNUR, KOLATHARA, KOZHIKODE DISTRICT. BY ADV. MR.R.K.MURALEEDHARAN RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 4. THE ASSISTANT EDUCATIONAL OFFICER, FEROKE, KOZHIKODE. 5. THE MANAGER, ATHMA VIDYA SANGHAM UP SCHOOL, CHERUVANNUR, KOLATHARA, KOZHIKODE DISTRICT. R1 TO R4 BY SR. GOVT. PLEADER MR.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.7195/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER. P2:- COPY OF THE ORDER OF IST RESPONDENT DT. 6.4.2000. P3:- COPY OF THE REPRESENTATION TO 2ND RESPONDENT DTD. 8.11.01. P4:- COPY OF THE CIRCULAR NO.H4-29303/2000/DPI DTD. 4.1.02 OF THE 2ND RESPONDENT. P5:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD. 18.7.03. P6:- COPY OF THE ORDER DTD. 11.8.03 OF THE 4TH RESPONDENT P7:- COPY OF THE COMMUNICATION OF THE 4TH RESPONDENT. P8:- COPY OF THE REPRESENTATION DTD. 21.3.05. P9:- COPY OF THE COMMUNICATION TO THE HEADMASTER DTD. 7.2.08. P10:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT. P11(a):- COPY OF THE INTERIM ORDER DTD. 5.12.05. P1(b):- COPY OF THE INTERIM ORDER DTD. 29.9.06. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.7195/2008-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of July, 2009 J U D G M E N T The petitioner is really aggrieved by orders directing the refund of salary that was paid to him on the basis of competent orders of approval. 2. The petitioner was appointed as Physical Education Teacher, as per Ext.P1, with effect from 28/07/1995, by the Manager. The appointment was in a regular vacancy which arose due to the retirement of one Smt.K.Soumini on 31/03/1995. By Ext.P2, Government directed regularisation of appointment of 54 Physical Education Teachers. Thereafter, the appointment of the petitioner was approved with effect from 17/07/2000 in the light of Ext.P2. The petitioner thereafter, moved the Director of Public Instructions by filing Ext.P3 seeking for approval of appointment from the date of appointment. By Ext.P4, the Director of Public Instructions issued a general order to the Educational Officers directing them to approve the appointments of 54 Physical Education Teachers from the date from which they were appointed if the appointments are otherwise in order. Accordingly, by Ext.P5, the files in respect of W.P.(C). No.7195/2008 -:2:- petitioner was reopened and, by Ext.P6, approval of appointment has been granted from 28/07/1995. 3. Thereafter, the Assistant Educational Officer , based on a direction issued by the Director of Public Instructions, ordered that the salary paid may be refunded, against which the petitioner filed Ext.P8 representation. But, by Ext.P9, the direction to refund the salary was again re-issued by the Assistant Educational Officer. Ext.P10 is the direction issued by the Director of Public Instructions in the matter. 4. The learned counsel for the petitioner submitted that in the light of the specific directions in Ext.P2 for regularisation, the petitioner is entitled for approval of appointment from the date of appointment itself and therefore, what is done by the Assistant Educational Officer, as per Ext.P6 order, is perfectly justified. The learned counsel for the petitioner placed reliance on a decision of this Court in W.P.(C).Nos.2315/2006 and 20652/2007 which is in respect of two other teachers who were governed by the very same order, Ext.P2. Therein, after considering various aspects, it was held in paragraph (6) in the following terms:- “The objection now taken that the appointment can be approved only prospectively, is not supported by any W.P.(C). No.7195/2008 -:3:- Government Order including Ext.P1. The wording in Ext.P1 shows that the Government has regulairsed the appointments of 54 Physical Education Teachers. That itself shows that the regularisation will take effect from the date of appointment itself. There is no direction in Ext.P1 that the appointments are to be approved only prospectively. As the Government has regularised the appointments as such, the Director of Public Instruction could not have issued a later order, Ext.P7, without having received any other direction issued by the Government in the matter. Therefore, the objection that is raised in Ext.P7 cannot be sustained.” The case of the petitioner herein, is identical. It is clear from the representation-Ext.P3, orders passed by the District Educational Officer- Ext.P5 and by the Assistant Educational Officer-Ext.P6 that the petitioner is also one of the appointees governed by Ext.P2 order. In that view of the matter, since the Government had directed regularisation of service, the regularisation of appointment has to be effected from the date of appointment itself. W.P.(C). No.7195/2008 -:4:- 5. Therefore, the writ petition is allowed. Exts.P9 and P10 are quashed. It is reported that in the light of Ext.P9, increment as well as higher grade benefits due to the petitioner have not been sanctioned so far. The fourth respondent will examine the matter and pass appropriate orders regarding the monetary benefits due to the petitioner, by way of increments and higher grade. Orders as above will be passed within a period of three months. No costs. (T.R. Ramachandran Nair, Judge.) ms