IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 31882 of 2010(I) -------------------------- PETITIONER(S): --------------- SARIKA.E., PHYSICAL EDUCATION TEACHER, KUTTAMBOOR HIGH SCHOOL, THAMARASSERY, KOZHIKODE DISTRICT. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 695001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 695001. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 001. 4. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE - 673 573. 5. THE MANAGER, KUTTAMBOOR HIGH SCHOOL, THAMARASSERY, KOZHIKODE - 673 573. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.31882 of 2010 --------------------------------------------- Dated this the 22nd day of November, 2010 JUDGMENT Kuttamboor High School, Thamarassery, is a newly opened school, which necessitates appointment of a protected teacher as per the Government Orders in force. On 31.3.2008, on the retirement of a Physical Education Teacher, a vacancy arose. Another vacancy of Urdu Teacher arose on 31.5.2008 as a result of the retirement of an Urdu Teacher. The Manager appointed the petitioner as Physical Education Teacher and one Noushad as Part Time Urdu H.S.A.. The District Educational Officer rejected the proposal for approval of the aforesaid two teachers. On appeal, the Deputy Director of Education passed an order dated 7.7.2009 to approve the appointment of the petitioner. Accordingly, the District Educational Officer approved the appointment of the petitioner. The Deputy Director of Education also directed to approve the appointment of T.K.Noushad on daily wage basis. It would appear that WPC No.31882/2010 2 Noushad filed a Writ Petition before the High Court. The High Court directed the Deputy Director to take a final decision after hearing all the affected parties and considering all the relevant facts. 2. The Director of Public Instruction, probably invoking the jurisdiction under Rule 8A of Chapter XIVA KER, passed Exhibit P4 order dated 23.9.2010 setting aside the order dated 10.2.2010 passed by the District Educational Officer approving the appointment of the petitioner. Exhibit P4 is under challenge in this Writ Petition. 3. The learned counsel for the petitioner also submitted that consequent on Exhibit P4, the District Educational Officer has initiated proceedings for recovery of the salary drawn by the petitioner from 2.6.2008 to 31.8.2010. 4. The learned Government Pleader submitted that Exhibit P4 order is revisable under Rule 92 of Chapter XIVA of the WPC No.31882/2010 3 Kerala Education Rules. That Exhibit P4 order is revisable under Rule 92 of Chapter XIVA KER is not in dispute. However, the learned counsel for the petitioner submitted that in the peculiar facts and circumstances of the case, in spite of having an alternative remedy, the Writ Petition is liable to be entertained. He also submitted that as per Exhibit P10 order, proceedings have been initiated for recovery of the salary already drawn by the petitioner. 5. In the facts and circumstances of the case, I am of the view that the petitioner should be relegated to the alternative remedy available to him under Rule 92 of Chapter XIVA of the Kerala Education Rules. Since the petitioner has an effective alternative remedy, I do not think it is necessary to entertain the Writ Petition at this stage. However, the petitioner contended that if the proceedings for recovery of the salary drawn by the petitioner for the period from 2.6.2008 to 31.8.2010 is proceeded with, she would be put to great hardship. In these circumstances, I am of the view that until the matter is decided by the WPC No.31882/2010 4 Government in a revision to be filed by the petitioner before the Government under Rule 92 of Chapter XIVA of the Kerala Education Rules, the proceedings for recovery initiated as per Exhibit P10 are liable to be kept in abeyance. The petitioner shall file the revision before the first respondent within a period of three weeks. The first respondent shall dispose of the revision in accordance with law. Till the revision is disposed of, proceedings for recovery of the salary, as per Exhibit P10, shall be kept in abeyance. The petitioner shall produce a copy of the Writ Petition, copy of I.A.No.16009 of 2010 and certified copy of the judgment before the first respondent. The Writ Petition is disposed of as above. K.T.SANKARAN JUDGE csl