IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 OP.No. 16348 of 2002(U) ---------------------------------- PETITIONER: ------------------- VIGNESH SHARMA .U., S/O.GOPALAKRISHNA BHAT, SANSKRIT TEACHER (FT), A.U.P SCHOOL, MOVVAR, P.O.MOVVAR, KASARAGOD DIST. BY ADV. MR.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, KUMBALA AT BADIADUKA, P.O.PERDALA-671 551, KASARAGOD DT. 3. THE MANAGER, A.U.P.SCHOOL, MOVVAR, P.O.MOVVAR, KASARAGOD DISTRICT. R1 & R2 BY GOVERNMENT PLEADER MR. DILEEP MOHAN, R3 BY ADVS. MR.T.RAMPRASAD UNNI, SMT.SMITHA GEORGE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 16348/2002-U: ORDER ON C.M.P. NO. 27648/2002 & I.A. NO.2522/2007 IN O.P. NO. 16348/2002-U DISMISSED 27/01/2010. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(RT).NO.2513/95/G. EDN. DTD. 20/07/1995. EXT.P.2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 07/08/2001 IN C.C.C. 668/01. EXT.P.3: COPY OF THE LETTER DTD. 19/09/2001 SUBMITTED BY THE R.2. BEFORE THE R.1. EXT.P.4: COPY OF THE LETTER NO.36021/E1/2001/G. EDN. DTD. 28/06/2001 ISSUED BY THE R.1. TO THE R.2. RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE RESIGNATION LETTER DTD. 02/06/1993 SUBMITTED BY THE PETITIONER BEFORE R.3. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. --------------------------- O.P. No. 16348 OF 2002 -------------------------- Dated this the 27th day of January, 2010 J U D G M E N T The petitioner is now working as a Full-time Sanskrit Teacher in AUP School, Movvar. He secured that appointment after a very long drawn out legal battle. Initially, he was appointed in a leave vacancy for the period from 3.9.1991 to 2.1.1992. That appointment was duly approved by the educational authority. Thereafter, the petitioner again worked in the same post during the periods from 1.6.1992 to 10.8.1992, 11.8.1992 to 31.8.1992 and 1.9.1992 to 5.7.1993. In view of his approved service, the petitioner became entitled for preference in future appointments by virtue of Rule 51 A of Chapter XIV A of KER. But ignoring the petitioner's claim, the manager appointed another teacher by name Smt. Santhakumari, for a short period from 7.6.1993. But that appointment was not approved by the AEO. Thereafter, the petitioner filed a revision petition before the Government, for regular appointment in a permanent vacancy, which arose in the school due to the retirement of Sri. U.Ganapathy Bhat, on 1.6.1992. The manager also filed a revision petition seeking approval of O.P. No.16348/02 2 appointment of Smt. Santhakumari with effect from 7.6.1993. Both the revision petitions were heard together by the first respondent and Ext.P1 order was passed upholding the claim of the petitioner for appointment to the vacancy which arose on 1.6.1992 and rejecting the contentions of the third respondent manager. The third respondent challenged Ext.P1 order by filing O.P. No. 15013 of 1995. That original petition was dismissed by a learned Single Judge of this Court. The third respondent went in appeal by filing Writ Appeal No.2210 of 1998. That writ appeal was dismissed with costs of Rs.2,500/- to the petitioner. Even thereafter the manager did not comply with Ext.P1 order. The petitioner again approached this Court by filing C.C.C. No.668 of 2001. This Court by an interim order fixed the date for giving appointment to the petitioner under the supervision of the second respondent. Thereafter the petitioner was appointed on 1.8.2001. In view of that appointment by Ext.P2 order dated 7.8.2001, a Division Bench of this Court closed the contempt case leaving it open to the petitioner herein to move the AEO for approval of his appointment in accordance with the rules. Thereafter the petitioner's appointment was approved with effect from 1.8.2001. O.P. No.16348/02 3 According to the petitioner, the petitioner was entitled to be appointed with effect from 1.6.1992 and he had to wait for nine long years only because of the recalcitrant attitude of the third respondent-manager. The petitioner would submit that it is clear from Ext.P1 order that the petitioner was entitled to notional benefits including seniority as if he was appointed as a Full-time Sanskrit Teacher from 1.6.1992 itself. Therefore the petitioner filed a representation dated 4.8.2001 before the second respondent. The second respondent forwarded the said representation to the first respondent. The first respondent, by Ext.P4 held that without an appointment order by the Manager appointing the petitioner the period the petitioner actually worked previously cannot be approved. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) To issue a writ of certiorari or other appropriate writ or order quashing Ext.P4 as illegal, unjust and unconstitutional. (ii) To issue a writ of mandamus directing the 1st respondent to take a decision in Ext.P1. (iii) To issue a writ of mandamus directing the 1st respondent to grant all notional service benefit to the petitioner as if the petitioner was appointed as a Full Time Sanskrit Teacher in a permanent vacancy from 1.6.1992 onwards.” O.P. No.16348/02 4 2. Counter affidavits have been filed by the respondents. The first respondent puts the blame on the Manager. The third respondent manager takes the stand that he has complied with Ext.P1 and the judgments of this Court. 3. The only question to be decided in this case is as to whether the petitioner is entitled to service benefits from 1.6.1992 namely the date of occurrence of the vacancy as per Ext.P1 order. The operative portion of Ext.P1 reads thus: “In the circumstances, the request of Sri.Vignesha Sharma for appointment as Full Time Sanskrit Teacher in A.U.PP. School Movvar Kasaragod is allowed and the Manager is directed to give posting to Sri. Vignesha Sharma without any break of service. However on notional benefit will be given to him till the date of his re-joining duty.” 4. Going by the same, it is abundantly clear that the intention of the Government was to give the petitioner service benefits with effect from 1.6.1992 notionally. As such, it was incumbent on the part of the third respondent to forward an appointment order appointing the petitioner with effect from 1.6.1992 but with notional benefits, till the date of rejoining duty. Admittedly that had not been done in this case. What has been done by the manager is to forward an appointment order appointing the petitioner O.P. No.16348/02 5 with effect from 1.8.2009. A counter affidavit and additional counter affidavit has been filed by the third respondent justifying his stand. But I do not think that in view of Ext.P1 order, which has become final long long ago, the third respondent can take a contention that the petitioner is not entitled to notional benefits with effect from the date of occurrence of the vacancy. In fact, the counsel for the third respondent submits that the third respondent is prepared to issue an appointment order appointing the petitioner with effect from 1.6.1992 for approval. The learned Government Pleader would also oppose the claim of the petitioner. But the stand in Ext.P4 is that without an appointment order issued by the Manager with effect from the retrospective date, the Government cannot give approval for the prior period. In any event, in view of Ext.P1 order passed by the Government, I do not think that respondents 1 and 2 can take a stand that the petitioner is not entitled to notional benefits with effect from 1.6.1992, from which the petitioner was legally entitled to be appointed. In fact as per Ext.P1, the third respondent ought to have forwarded an appointment order with effect from 1.6.1992 with notional benefits till the date of joining. In Ext.P3 order the Division O.P. No.16348/02 6 Bench had saved the right of the petitioner for approval in accordance with rules. In the above circumstances, this original petition is allowed as follows: (i) Ext.P4 order is hereby quashed. (ii) It is declared that the petitioner is entitled to all service benefits other than monetary benefits as a Full Time Sanskrit Teacher with effect from 1.6.1992 (iii) Within two weeks from today, the third respondent shall forward an appointment order appointing the petitioner as Full- time Sanskrit Teacher in his school with effect from 1.6.1992 with notional benefits till 31.7.2001. Within one month from the date of receipt of the same, the second respondent shall approve the appointment of the petitioner notionally with effect from 1.6.1992 till 31.7.2001 and with full benefits from 1.8.2001 onwards. S.SIRI JAGAN, JUDGE vps The date “1.8.2009” occurring in the 1st line of 5th page of the judgment dated 27/01/2010 in OP No. 16348/2002 is corrected as “1.8.2001” vide order dated 19/02/2010 in I.A. No.2242/2010.