IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 12266 of 2008(I) -------------------------- PETITIONER: ------------ MOHAMMED FAHAD.V.M., S/O.ALAVI V.M., HIGH SCHOOL ASSISTANT, ENGLISH, DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT RESIDING AT VEERAMANGALAM HOUSE, THOOTHA, MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENTS: ------------- 1. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, D.P.I.OFFICE, THIRUVANANTHAPURAM. 3. THE HEAD MASTER, DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT. 4. THE MANAGER, DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT. BY ADV. SRI.P.J.ANILKUMAR FOR R3-4 BY GOVERNMENT PLEADER SHRI T.T.MUHAMOOD FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.12266 of 2008 I -------------------------------------- Dated this the 18th day of July, 2008. J U D G M E N T The grievance of the petitioner is that he was not paid salary in spite of the fact that his appointment with effect from 1.7.2007 was approved by the District Educational Officer, Malappuram. Ext.P2 is the order appointing the petitioner as High School Assistant(English) with effect from 1.6.2007 in the retirement vacancy of Shri S.Soman Pillai. The District Educational Officer approved the appointment of the petitioner with effect from 1.7.2007 onwards. The petitioner complains that he was not paid salary and that the salary bills presented by the Headmaster have not been counter-signed by the Educational Officer. 2. Learned Government Pleader pointed out that the petitioner was appointed for the period from 4.6.2005 to 31.1.2010 in the leave vacancy of Shri V.K.Shamsudheen, High School Assistant (Maths) who took leave from 1.2.2005 for a period of five years. The District Educational Officer, Malappuram and the Deputy Director of Education, Malappuram had rejected the approval of appointment of the petitioner on three grounds, viz., (i) being a newly opened school, all vacancies should be filled up by appointing protected hand, (ii) promotion of Rule 43 claimant with effect from 15.7.2003 stands rejected, and WP(C) No.12266/2008 2 (iii) appointment of Rule 51A claimant with effect from 1.6.2005 stands rejected. As far as grounds (ii) and (iii) are concerned, the Director of Public Instruction in Ext.P1 order dated 3.3.2008 held that those objections no longer subsist. The Director of Public Instruction in Ext.P1 order concluded as follows:- “In the circumstances, there is no established vacancy to provide the appointee with effect from 4.6.05 to 30.6.2007. The vacancy established only with effect from 1.7.07 to 31.5.2010. Hence the request of the manager to approve the approvement of Sri. Mohammed Fahad as HSA (Eng.) with effect from 4.6.05 to 31.1.2010 is hereby rejected.” It is stated in Ext.P1 that the vacancy established only with effect from 1.7.2007. Though Ext.P2 appointment order is from 1.6.2007, it was approved by the District Educational Officer with effect from 1.7.2007 onwards. Learned Government Pleader submits that Ext.P2 order passed by the District Educational Officer with effect from 1.7.2007 is illegal and that appropriate proceedings are being initiated for rectifying the mistake and for cancelling the appointment of the petitioner. 3. So long as the appointment of the petitioner is approved, as it stands, the petitioner is entitled to draw his salary. The salary of the petitioner cannot be denied on the ground that proceedings are under WP(C) No.12266/2008 3 contemplation against him to cancel his appointment. Therefore, the Writ Petition is allowed The first respondent shall pass salary bills of the petitioner with effect from 1.7.2007 onwards. Third respondent shall disburse the salary due to the petitioner for the period from 1.7.2007 onwards. The petitioner has prayed for the issue a writ of mandamus directing the second respondent to approve the appointment of the petitioner with effect from 4.6.2005 to 30.6.2007, as per relief No.(iii). Learned counsel for the petitioner submits that relief No.iii is not pressed, for the present, and the right of the petitioner in that regard may be reserved. Therefore, relief No.iii is not considered in this Writ Petition. Writ Petition is allowed to the extent indicated above. Disposal of this Writ Petition would not stand in the way of the respondents to initiate appropriate action, as per law, against the petitioner in regard to the appointment of the petitioner with effect from 4.6.2005 to 30.6.2007, which was not approved by the District Educational Officer. The disposal of the Writ Petition also will not stand in the way of appropriate action being taken in accordance with law, against the Manager as well. K.T. SANKARAN, JUDGE. cks