IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 26084 of 2005(E) -------------------------- PETITIONER(S): --------------- 1. M.BALAKRISHNAN, PHYSICAL EDUCATION TEACHER, PERUL U.P.SCHOOL, MATHAMANGALAM.P.O., KANNUR. 2. K.VENUGOPAL, PHYSICAL EDUCATION TEACHER, ST.MARY'S U.P.SCHOOL, PAYYANNUR, P.O.PAYYANNUR, KANNUR DISTRICT. 3. P.GANGADHARAN, PHYSICAL EDUCATION TEACHER, KANAYI NORTH U.P.SCHOOL, P.O.KANAYI, M.M.BAZAR(VIA), MATHAMANGALAM, KANNUR DISTRICT. 4. GOPALAKRISHNAN.K., PHYSICAL EDUCATION TEACHER, KOROM DEVISAHAYAM A.U.P.SCHOOL, P.O.CHALAKODE, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR. GOVERNMENT PLEADER SRI. DILIP MOHAN FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioners Exhibits: Ext.P1: True copy of the G.O.(Ms)No.113/2000/G.Edn. dt.6.4.2000 Ext.P2: True copy of the order dated 30.4.2005 issued by the 4th respondent Ext.P3: True copy of the representation filed by the Association before the Hon'ble Minister for Education Ext.P4: True copy of the letter dated 4.1.2002 issued by the 2nd respondent. Ext.P5: True copy fo the judgment dated 13.7.2009 in WP(C) No.2315/2006 /True copy/ P.A. To Judge T.R. RAMACHANDRAN NAIR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 26084 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2009 J U D G M E N T The petitioners herein are aggrieved by Ext.P2, whereby recovery has been ordered with regard to pay and allowance made to them during vacation namely for the months of April and May, 2000. 2. The petitioners have been working in the respective schools from the years 1991, 1992, 1994 and 1991 respectively and their approval of appointment was pending for a long time. Ultimately, the Government as per Ext.P1 order G.O.(Ms) No.113/2000/G.Edn. dt.6.4.2000 directed the regularization of service of 54 teachers and the petitioners have also been included therein as per serial numbers 45,51, 49 and 50. 2. Later by Ext.P2 an objection was raised that salary till the re opening of the schools during 2000-2001 from the petitioners should be recovered. The petitioners filed Ext.P3 representation before the Government. Ext.P3 shows that the petitioners joined service from the year 1991 onwards, namely 16.10.1991, 2.7.1992, 1.8.1994 and 24.9.1991 respectively. 3. The orders passed by the Educational Officers approving their appointments have been mentioned in Ext.P3. 4. The respondents have filed a counter affidavit in the WPC.26084 of 2005 : 2 : matter. It is pointed out by the learned counsel for the petitioners, that the matter is covered by the judgment in WP (C) NO. 2315 of 2006 produced as Ext.P5 herein. The question was with regard to the date on which the approval of appointment has been granted. Ext.P1 herein was under consideration therein. This Court, after considering the matters in detail held that the regularization will take effect from the date of appointment itself. A reading of para 6 of the judgment is as follows: The objection now taken that the appointment can be approved only prospectively, is not supported by any Government Order including Ext.P1. The wording in Ext.P1 shows that the Government has regularized the appointments of 54 Physical Education Teachers. That itself shows that the regularization will take effect from the date of appointment itself. There is no direction in Ext.P1 that the appointments are to be approved only prospectively. As the Government has regularized the appointments as such, the Director of Public Instruction could not have issued a later order, Ext.P7, without having received any other direction issued by he Government in the mater. Therefore, the objection that is raised in Ext.P7 cannot be sustained. Apart from that, in respect of petitioners 1 and 2, by separate orders Exts.P10 and P11 the Government itself had approved the appointment from the dates shown therein. The same will prevail over Ext.P7, obviously. Once the appointment is approved, it will have to relate back to the date of appointment itself, unless otherwise shown in the order. There is no dispute that the petitioners have performed the duties as teachers also from the date of appointment. As regards petitioners 3 and 4, no other reasons have been pointed out also. 5. Since the petitioners are also included in Ext.P1, they will be entitled to the benefit of the Ext.P5 judgment. It is clear from Ext.P1 order dated 6.4.2000, that the WPC.26084 of 2005 : 3 : Government granted regularization of appointment of 54 Physical Education Teachers. Appointment of petitioners have been approved in terms of the said order. In that view of the matter there cannot be any objection regarding the payment of salary. Therefore the writ petition is allowed. Ext.P2 is quashed. It is declared that the payment of the salary of the petitioners for the months of April and May 2000 will be treated as regular. The learned counsel for the petitioners submitted that petitioners are entitled for grant of approval in terms of the directions contained in Ext.P5 as the petitioners therein are also among the 54 teachers. It is up to the petitioners to take up the matter before the competent authority by way of a representation and if such a representation is filed the same will be considered in accordance with law. Sd/- (T.R. RAMACHANDRAN NAIR, JUDGE) //True Copy// P.A. to Judge jma