IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 8580 of 2004(U) ------------------------- PETITIONER(S): --------------- ASHA K.S., RESIDING AT ALPHA COTTAGE, POTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY SCHOOL, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVT.V.H.S.S., PIRAPPANCODE, THIRUVANANTHAPURAM. GOVT. PLEADER SHRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.2.2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 8580/04. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PROVISIONAL APPOINTMENT ORDER. P2. COPY OF THE JUDGMENT IN O.P.No. 11968/02 OF THIS COURT. P3. COPY OF THE GOVT. ORDER DTD.23.9.03. P4. COPY OF THE JUDGEMENT DTD.11.12.03 IN W.P.(C).No. 35978/03. P5. COPY OF THE ATTENDANCE CERTIFICATE DTD.20.4.02. P6. COPY OF THE DUTY CERTIFICATE DTD.27.4.02. P7. COPY OF THE LETTER DTD.22.6.04 BEFORE R3. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 8580 of 2004 ================== Dated this the 19th day of February, 2010 J U D G M E N T By Ext.P1 order, the petitioner was appointed as a temporary Non Vocational Lecturer in Physics in the Vocational Higher Secondary Education Department of the State, in the scale of pay of Rs.6675- 10550. When the provisional appointment was sought to be terminated, the petitioner filed O.P.No.11968/2002 before this Court seeking regularisation in service and for other reliefs. This Court admitted the writ petition and, by an interim order dated 3.5.2002, allowed the petitioner to continue in service for six weeks. While so, the 1st respondent issued order dated 26.8.2002 regarding regularization of provisional hands. The petitioner filed a representation dated 27.11.2002 before the 1st respondent seeking the benefit of that Government order. Thereafter, this Court disposed of O.P.No.11968/2002 by Ext.P2 judgment dated 23.1.2003, directing the 1st respondent to consider and pass orders on the representation filed by the petitioner. The petitioner continued in service for the year 2003-2004 also. According to the petitioner, by virtue of Rule 9(a)(i) of KSR&SSR, the petitioner was entitled to continue at least till the closing date of the school for the annual vacations for the academic year 2003-04. But from 28.6.2003 onwards the petitioner was not w.p.c.8580/04 2 allowed to continue in service. The petitioner was also not paid salary as stipulated in Ext.P1 for the period from April 2002 till June 2003. Pursuant to Ext.P2 judgment, by Ext.P3 order, the 1st respondent rejected the claim of the petitioner. Aggrieved by Ext.P3 order and non-disbursal of salary for the period from April 2002 to June, 2003, the petitioner again filed W.P.(C).No.35978/2003 before this Court. By Ext.P4 judgment, that writ petition was disposed of on 11.12.2003 holding that the petitioner is entitled to the benefit of the Government order dated 26.8.2002 and directing the 3rd respondent to take note of the petitioner's claim when vacancy arises. It was also directed to take immediate steps for effecting payment of salary for the service rendered by the petitioner. Although pursuant Ext.P4 judgment the petitioner filed a representation before the 2nd respondent seeking disbursal of arrears of salary due, the 2nd respondent directed disbursal of salary to the petitioner only on hourly remuneration basis and not in the scale of pay applicable as per Ext.P1 appointment order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to disburse the petitioner's salary, for the period from April 2002 to June 2003, in the scale of pay provided in Exhibit P1; ii. grant such other reliefs as deem just and proper in the nature and circumstances of the case.” w.p.c.8580/04 3 2. Pending disposal of the writ petition, the petitioner was paid an amount of Rs.17,920/- which was accepted by the petitioner under protest, without prejudice to the claims of the petitioner in this writ petition, as per Ext.P7 communication from the petitioner to the principal of the school. 3. No counter affidavit has been filed by the respondents in this writ petition. 4. The learned Government Pleader submits that the petitioner was continued in service only by virtue of the interim order of this Court, which did not stipulate that the petitioner should be paid salary in the scale of pay. According to the learned Government Pleader, since the appointment was only provisional, she is entitled to salary only on hourly remuneration basis. 5. I have considered the rival contentions in detail. 6. By Ext.P1 order, the petitioner was appointed under rule 9 (a)(i) of the KS&SSR in the scale of pay of Rs.6675-10550. That appointment was being continued by virtue of the stay order of this Court. Therefore, the petitioner is entitled remuneration for the period she worked in accordance with Ext.P1 appointment order. As such, there is no merit in the contention of the learned Government Pleader. At no point of time the respondents have intimated the petitioner that the petitioner's appointment or continuance thereof is on hourly w.p.c.8580/04 4 remuneration basis. On the other hand, the petitioner has been specifically informed by Ext.P1 appointment order that the petitioner is appointed in the scale of pay of Rs.6675-10550. Therefore, even if the petitioner continued in service only by virtue of interim orders of this Court, the terms and conditions of her appointment are as per Ext.P1 appointment order. Since in Ext.P1 order she has been appointed in the scale of pay of Rs.6675-10550, the petitioner is entitled to payment of salary in the scale of pay only and not on hourly remuneration basis. Therefore, I am satisfied that the petitioner is entitled to the relief prayed for in this writ petition. Accordingly, the respondents are directed to disburse the petitioner's salary for the period from April 2002 to June 2003 in the scale of pay of Rs.6675- 10550 as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. It would be open to the respondents to deduct any amount paid to the petitioner in the meanwhile from the amount payable as directed above. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.8580/04 5