IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 56 of 2008(F) -------------------------------- PETITIONERS: --------------------- V.KRISHNAN,PEON,AUP SCHOOL ERAVANNUR P.O.,. ERAVANNUR P.O., NARIKUNNI, KOZHIKODE. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHAMANI SRI.T.R.RAJESH RESPONDENTS: ---------------------- 1. THE STATE OF KERALA REP. BY THE SECRETARY TO GOVT.,GENERAL EDUCATION DEPARTMENT, SECRETARIAT,TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION TRIVANDRUM. 3. THE ASST.EDUCATIONAL OFFICER THAMARASSERY. 4. V.VINOD KUMAR, PEON,AUP SCHOOL ERAVANNUR P.O., NARIKUNNI, KOZHIOKODE. BY GOVERNMENT PLEADER SMT. SUNITHA SUKUMAR ADV. MR.P.V.JYOTHI PRASAD FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 56 of 2008(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE JUDGMENT DATED 10.1.2005 IN W.P(C) NO. 19391/2004. EXT.P2 - TRUE COPY OF THE JUDGMENT DATED 25.5.2005 IN W.A. NO. 995/2005. EXT.P3 - TRUE COPY OF THE ORDER DATED 15.6.2005 ISSUED BY THE 3RD RESPONDENT. EXT.P4 - TRUE COPY OF THE G.O.(P) 145/2006/FIN. DATED 25.3.2006. EXT.P5 - TRUE COPY OF G.O.(Rt) NO. 2276/05/G/Edn. DATED 2.6.2005. /// TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P.(C) No. 56 of 2008 ................................................. Dated this the 3rd day of July, 2009 J U D G M E N T The petitioner was appointed as a peon in the AUPS, Narikunni on 3.7.1991 in a vacancy occurred on the death of the incumbent. The 4th respondent, claiming to be a dependent of a deceased employee of that school, challenged the appointment of the petitioner on the ground that as per Rule 51B of Chapter XIVA of KER he is entitled to be preferred to the petitioner for appointment to the said vacancy. Accepting the contention of the 4th respondent, the educational authorities refused to approve the appointment of the petitioner. The appeal and revision filed by the petitioner were also dismissed. The Manager and the petitioner filed O.P. Nos. 6407 of 1999 and 9460 of 1999 challenging the orders of the educational authority and the Government. This court disposed of those writ petitions directing the Government to consider the matter afresh. The Government again by order dated 1.6.2004 directed the Manager to appoint the 4th respondent in the vacancy. That order was again challenged by the petitioner and the Manager W.P.(C) No. 56 of 2008 -2- by filing W.P.(C) Nos. 19391 and 24884 of 2004. Those writ petitions were allowed and the impugned orders were quashed and the petitioners appointment was directed to be approved. The single judge also directed the creation of a supernumerary post to accommodate the 4th respondent, by Ext.P1 judgment. The 4th respondent challenged the said judgment by filing W.A. Nos. 1009 and 995 of 2005. In that writ appeal the division bench modified Ext.P1 judgment by Ext.P2 judgment directing accommodation of the petitioner in the supernumerary post and appointment of the 4th respondent in the vacancy which arose on 3.7.1991. They were so appointed. But by Ext.P3 order, it was directed that the petitioner would not be entitled to any service benefits for the period from 1.2.2005 till the petitioner was appointed in the supernumerary post. According to the petitioner, this is against the decision of the Division Bench. The petitioner would contend that when the Division Bench directed payment of salary to the petitioner with effect from 3.7.1991, the petitioner would be entitled to fixation of salary taking into account increments which accrued due, since salary includes increment. He also claims grant higher grade, taking into W.P.(C) No. 56 of 2008 -3- account the service from 3.7.1991. The petitioner therefore seeks the following reliefs: “a) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P3 order, to the extent of not counting the service rendered by the petitioner from 3.7.1991 to 1.2.2005 for confering pay revision benefits and increment to the petitioner; b) to issue a writ of mandamus or other appropriate writ order or direction directing the 1st and 3rd respondents to count the service rendered by the petitioner from 3.7.1991 for all purposes like sanctioning of increment, fixation of salary, sanction of Time Bound Grade promotion etc.; c) to issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st and 3rd respondents to pay the arrears of increment and the arrears of Time Bound Higher Grade promotion pay to the petitioner for the period of service already rendered by him from 3.7.1991 onwards; d) to issue a writ of mandamus or other appropriate writ, order or direction commanding the 3rd respondent to sanction and disburse the increment already accrued to the petitioner for the period of service rendered by the petitioner from 3.7.1991 onwards and to sanction and disburse the first and second Time Bound Higher Grade pay w.e.f. 3.7.2001 and 3.7.2007 respectively;” 2. I have heard the learned Government Pleader also. 3. The contentions of the petitioner has to be appreciated on the basis of Ext.P2 judgment. The operative portion of the same is contained in paragraph 6 of the judgment, which reads thus: W.P.(C) No. 56 of 2008 -4- “6. The Government did not file any appeal against the direction to create a supernumerary post. Considering the fact that the second petitioner was appointed and working there though his appointment has not been approved so far, we are of the opinion, that he should be given an equitable relief. He shall be accommodated in the supernumerary post created as directed by the Court. But the 4th respondent (the appellant herein) is entitled to get appointment with effect from 03.07.1991. We see no infirmity in Ext.P1, P3 and P10. On a consideration of the fact that the appellant was not working in that post from 03.07.1991 and second petitioner was actually working, we direct that the salary should be paid to him from 03.07.1991 till the date of appointment of the appellant and the appellant shall be paid salary from the date of his appointment on the basis of the judgment of the learned Single Judge. In the supernumerary post created, the second petitioner in the Writ Petition (5th respondent in the Writ Appeal) can continue to work from the date of appellant was appointed. From the date of actual appointment of the appellant, he is entitled to get salary, though service benefits has to be calculated on notional basis with effect from 03.07.1991.” 4. In the same, undoubtedly, the 4th respondent was directed to be appointed with effect from 3.7.1991. But since he did not actually work from 3.7.1991, salary was denied to him. The petitioner was directed to be appointed in the supernumerary post created, but he was directed to be given salary for the period he actually worked. That does not mean that the petitioner is entitled to other service benefits also with effect from 3.7.1991. Actually, what has been paid to the petitioner is the salary due to the 4th respondent on the ground W.P.(C) No. 56 of 2008 -5- that the 4th respondent did not work were as the petitioner worked in his place. Therefore, the petitioner is not entitled to any other benefits except the salary due. Petitioner's service would start only from 1.2.2005 on which date only he was appointed in the supernumerary post. Therefore, he is entitled to service benefits attached to such appointment only with effect form that date. In the above circumstances, I do not find any merit in the writ petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE rhs