IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WA.No. 1931 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24451/2005 .................... APPELLANT(S): -------------- K.M. SUHASINI M.A., B.ED., AGED 40 YEARS, W/O.K. PREMANAND, JUNIOR LANGUAGE TEACHER (SANSKRIT) GOVERNMENT MOPILA U.P. SCHOOL, KATTAMPALLY P.O., KATTAMPALLY, KANNUR. BY ADV. SRI.KRB.KAIMAL (SR.) RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETZRY TO GOVERNMENT GENERAL EDUCATION (E2) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR P.O., KANNUR-2. GOVT.PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ---------------------------------------------- W.A. No.1931 of 2006 ---------------------------------------------- Dated 15th January, 2009. J U D G M E N T Kurian Joseph, J. Appellant is the writ petitioner in W.P.(C)24451/05. As advised by the Public Service Commission, she joined duty as High School Assistant (Part Time-Sanskrit) on 27.9.1999. After 32 days, it is submitted that she had submitted an application for leave without allowances with effect from 1.11.1999 and left the service without getting the same sanctioned. After the expiry around two years, it appears the petitioner reported for duty, but she was not permitted to join duty on the ground that disciplinary proceedings were pending against her. In the meanwhile, the petitioner was advised by the Public Service Commission for appointment as Junior Language Teacher (Part Time-Sanskrit) and she joined that service on 12.11.2001. While the petitioner was thus continuing as Junior Language Teacher the second respondent Deputy Director passed Ext.P1 order permitting the petitioner to join duty as H.S.A. (Part Time-Sanskrit), subject to the finalization of the disciplinary proceedings. The disciplinary proceedings have subsequently been dropped. The Government WA NO.1931/06 2 also was of the view that the overstay is to be condoned and the petitioner should be permitted to join duty as H.S.A.(Part Time- Sanskrit). That is Ext.P2. Despite Ext.P1 by the Deputy Director and Ext.P2 by the Government, the petitioner was not permitted to join duty and hence she approached this court praying for a direction for implementation of Exts.P1 and P2. During the pendency of the writ petition, the petitioner was permitted to join duty and she had been working from 9.8.2005, on getting relieved from the post of Junior Language Teacher (Part Time). Thereafter, she left the service also. Hence the writ petition was sought to be dismissed as not pressed. 2. The learned Single Judge however, was of the view that the respondents could not have permitted the petitioner to join duty as H.S.A.(Part Time-Sanskrit) and therefore, the salary paid to her from 9.8.2005 was to be recovered. Exts.P1 and P2 were also quashed. Aggrieved by the direction to recover the salary despite the request for permission to withdraw the writ petition itself, the petitioner has come up in appeal. 3. Having heard the learned senior counsel appearing for the appellant and the learned Senior Government Pleader, we WA NO.1931/06 3 are of the view that there is no justification in ordering the recovery. The intervening appointment was not a subject matter of the writ petition. It is to be noted that it is not the costs that is imposed while dismissing the writ petition. The writ petition itself having become infructuous since the writ petitioner left the service, she only wanted a dismissal of the writ petition as not pressed. At any rate, having worked in the post pursuant to orders issued by the Government, there is no justification in recovering the benefits flowing out of the service thus rendered by the petitioner. Therefore, we set aside the judgment of the learned Single Judge in the matter of direction for recovery of salary for the period from 9.8.2005 and the writ petition is dismissed as not pressed. The Writ Appeal is disposed of as above. KURIAN JOSEPH, JUDGE. P.R.RAMACHANDRA MENON, JUDGE. tgs KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ ---------------------------------------------- W.A. No.1931 of 2006 ---------------------------------------------- J U D G M E N T Dated 15th January, 2009.