IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 11697 of 2009(F) --------------------------------------- PETITIONER(S): ----------------------- USHA JOHN, LPSA, C.M.S.L.P. SCHOOL, MULLIKULANGARA, MAVELIKARA TALUK, (KIZHAKKEKKOKKAPALLIL, THONACKAD P.O., CHERIANAD, ALAPPUZHA DISTRICT). BY ADVS. MR.K.SASIKUMAR MR.S.SREEDUTT MR.S.ARAVIND RESPONDENT(S): ----------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. DISTRICT EDUCATIONAL OFFICER, MAVELIKARA. 5. ASSISTANT EDUCATIONAL OFFICER, MAVELIKARA. 6. HEADMASTER, C.M.S.L.P. SCHOOL, MULLIKULANGARA, MAVELIKARA. 7. CORPORATE MANAGER, CMS SCHOOLS, KOTTAYAM. BY SR. GOVT. PLEADER SMT.T.B.RAMANY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11697/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DT. 12.8.04 ISSUED BY THE 7TH RESPONDENT APPOINTING THE PETITIONER AS LPSA IN CMSP., SCHOOL PALLICKAL FROM 12.8.04 ONWARDS. P2:- COPY OF THE ORDER DT. 18.7.05 PASSED BY THE 4TH RESPONDENT. P3:- COPY OF THE LETTER DT. 14.5.07 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. P4:- COPY OF THE REPRESENTATION DT. 24.7.07 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. P5:- COPY OF THE REPRESENTATION DT. 5.7.07 FORWARDED BY THE PETITIONER TO THE IST RESPONDENT. P6:- COPY OF THE LETTER DT. 11.7.07 FORWARDED BY THE 7TH RESPONDENT TO THE IST RESPONDENT. P7:- COPY OF THE ORDER DT. 22.8.08 ISSUED BY THE 5TH RESPONDENT. P8:- COPY OF THE ORDER DT. 2.9.08 ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE LETTER DT. 3.10.08 ISSEUD BY THE 5TH RESPONDENT TO THE PETITIONER. P10:- COPY OF THE REPRESENTATION DT. 16.10.08 FORWARDED BY THE 7TH RESPONDENT TO THE 2ND RESPONDENT. P11:- COPY OF THE LETTER DT. 11.12.08 ISSUED BY the 4TH RESPONDENT TO THE 5TH RESPONDENT. P12:- COPY OF THE LETTER DT. 4.2.09 FORWARDED BY THE 5TH RESPONDENT TO THE 7TH RESPONDENT. P13:- COPY OF THE GO(P) NO.169/04/G.EDN. DT. 15.6.04 ISSUED BY THE IST RESPONDENT. P14:- COPY OF THE CIRCULAR DT. 11.9.07 ISSUED BY THE 2ND RESPONDENT NO. F3/63402/07 D.P.I. P15:- COPY OF THE ORDER DT. 8.8.07 ISSUED BY THE SIT RESPONDENT NO.35757/H2/07 G.EDN. P16:- COPY OF THE ORDER DT. 16.10.07 OF THE 2ND RESPONDENT H3/41655/07 DPI K.DIS. W.P.(C) NO.11697/2009 P17:- COPY OF THE ORDER DT. 6.11.07 ISSUED BY THE 2ND RESPONDENT F3/45667/07/DPI D/L.DIS. P18:- COPY OF THE CONSEUENTIAL ORDER ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER CONCERNED NO.C.1002/07/K.DIS. P19:- COPY OF THE ORDER DT. 7.3.08 ISSUED BY THE ADDITIONAL D.P.I. K/DIS/F3/88530/07 DPI. P20:- COPY OF THE GO(RT) NO.4285/08/G.EDN. DT. 25.8.08 . TRUE COPY P.S. TO JDUGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.11697 of 2009 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2009. JUDGMENT The petitioner was appointed as L.P.S.A. in the C.M.S.L.P. School, Pallikkal with effect from 12.8.2004 onwards in a regular permanent vacancy caused by the transfer of one Mini Daniel to another school. Ext.P1 is the said order of appointment. That was approved only on daily wage basis in terms of G.O.(P) No.169/04/G.Edn. dated 15.6.2004. In appeal filed by the Manager, the Assistant Education Officer was directed to approve the appointment of the petitioner as L.P.S.A. from 12.8.2004 onwards. Thereafter, by Ext.P3, objection was raised regarding payment of salary, based on the order passed by the Deputy Director of Education, against which the petitioner has filed a representation as per Ext.P4. The petitioner has also filed Ext.P5 representation before the Government. While the matter was pending before the Government, the Asst. Educational Officer, by Ext.P7, passed revised orders in respect of various teachers and in the case of the petitioner it was approved from 12.8.2004 to 31.3.2005 on daily wages basis. The Government also subsequently passed Ext.P8 order by which the approval was directed to be granted on daily wpc 11697/2009 2 wages basis with effect from 12.8.2004 to 31.3.2005 and from the next academic year onwards on regular basis. The petitioner was directed to remit the excess amount drawn for the period from12.8.2004 to 31.3.2005, as per Ext.P9. 2. The petitioner is challenging G.O.(P) No.169/04/G.Edn. dated 15.6.2004 whereby the Government directed that the vacancies having duration of less than one academic year, will be filled up only on daily wages basis. It is pointed out that the vacancy herein is a permanent one, not confined to less than one academic year. 3. Learned counsel for the petitioner submitted that in the light of the decision of a Division Bench of this court in Unni Narayanan v. State of Kerala (2009 (2) KLT 604), the matter will have to be reconsidered. In the above said decision, this court held that without amending the statutory rules, a Government Order cannot be pressed into service. It was held that “if the vacancy is having a duration of one academic year or more, appointment can be made to fill up the same. The term of appointment need not be co-terminus with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved.” Ultimately, in para 12, a direction was issued as follows: “12. In the case of the writ petitioners in these cases, orders, if wpc 11697/2009 3 any passed, approving their appointments on daily wage basis, relying on Ext.P2 Government Order are quashed. All appointments, whether pending approval or already rejected, shall be considered/reconsidered by the Educational Officers concerned and fresh orders shall be passed in the light of the declaration of law made by us in W.P.(C) No.25176 of 2008. The salary found due to be paid to the incumbents concerned shall be released immediately. The action in this regard shall be completed within six weeks from the date of production of a copy of this judgment.” 4. Accordingly, Exts.P7 and P8 whereby the approval of appointment of the petitioner is restricted on daily wages basis for the period from 12.8.2004 to 31.3.2005, are quashed. The Asst. Educational Officer will pass fresh orders in accordance with the directions issued by the Division Bench in the above case and in the light of the findings rendered therein, within a period of two months from the date of receipt of a copy of this judgment. The consequential direction issued pursuant to Exts.P7 and P8 to recover the excess salary will also stand set aside. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/