IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WA.No. 873 of 2008() (AGAINST THE JUDGMENT DATED 4.1.2008 W.P.C NO.30993) APPELLANT(S): RESPONDENT NO.5 THE MANAGER, VENGARA MOPLA U.P.SCHOOL, VENGARA P.O., KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): PETITIONER AND RESPONDENTS 1 TO 4 AND 6 1 M.P.NARAYANAN NAMBOODIRI, TEACHER (HINDI) VENGARA MAPPILA SCHOOL, VENGARA P.O., KANNUR DISTRICT, RESIDING AT MOOTHEDATH PERUKULATHILLAM, P.O.KADANNAPPALLI, KANNUR DISTRICT. 2. STATE OF KERALA-REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, DPI BHAVAN, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 5. THE ASSISTANT EDUCATIONAL OFFICER, MADAI, KANNUR DISTRICT. 6. THE HEADMISTRESS, VENGARA MOPLA U.P.SCHOOL, P.O.VENGARA, KANNUR DISTRICT. BY ADV. SRI.K.S.MADHUSOODANAN FOR R1 SMT. R. BINDU, GOVT. PLEADER FOR R2 TO R5 SRI. KALEESWARAM RAJ-R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 873 OF 2008 --------------------------------------------- Dated this the 19th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The first respondent/writ petitioner was a language teacher (Hindi) working in the appellant's school. As per the staff fixation order for the academic year 2003-2004, there was no post to accommodate the first respondent. So, he should have been retrenched from service on 15.7.2003. But, instead, he was retained in service and finally retrenched on 15.9.2004. Since the first respondent worked without a sanctioned post to accommodate him, the department did not pay salary to him. According to the first respondent, if benefit of the ratio 1:40 available under Ext.P5 Circular was extended, he would have been retained. Raising this claim, the first respondent filed Ext.P8 representation before the Director of Public Instructions. Since, no orders have been passed on Ext.P8, this Writ Petition was filed. The learned Single Judge found that the first respondent was made to work in the school without a sanctioned W.A. NO. 873/2008 2 post and the Manager has chosen not to file an appeal against the staff fixation order. So, the learned Single Judge held that the Government cannot be compelled to pay salary to the teacher and since the Manager was the employer, a direction was issued to the Assistant Educational Officer to ensure that the Manager pays salary to the first respondent for the period from 15.7.2003 to 15.7.2004. If the Manager does not pay the salary to the first respondent, the Deputy Director of Education is directed to take coercive steps including steps for disqualification against him. Feeling aggrieved by the above direction, the Manager has preferred this appeal. 2. At the time of hearing, the learned counsel for the first respondent pointed out that if the Director of Public Instructions considers Ext.P8 representation taking into account Ext.P5 Circular dated 2.5.2005, lowering the teacher-student ratio to 1:40 for protecting the interest of existing teachers, the first respondent can be retained in the school. In view of the above submission, the third respondent is directed to consider Ext.P8 representation filed by the first respondent/writ petitioner with notice to the first respondent and the appellant and pass final orders within two months from the date of production of a copy of this judgment. The first respondent shall produce a copy of the Writ Petition and also a copy W.A. NO. 873/2008 3 of this judgment before the third respondent. The claim of the first respondent for payment of salary by the appellant is left open. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 873/2008 4 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO. 873/2008 JUDGMENT 19th June, 2009