IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 1513 of 2006(E) ---------------------------------- PETITIONER(S): ----------------------- P.K.DEENADAYAL, AGED 39 YEARS, S/O.DAMODARAN NAIR, THUNDIYIL HOUSE, AYANCHERRY, VATAKARA-673 544, KOZHIKODE DISTRICT. BY ADVS. SMT.PRABHA R.MENON MR.M.KRISHNAKUMAR RESPONDENT(S): -------------------------- 1. THE HEADMASTER, SANTHI NIKETAN SECONDARY SCHOOL, THIRUVALLUR, THIRUVALLUR P.O., KOZHIKODE DISTRICT. 2. THE MANAGER, SANTHI NIKETAN SECONDARY SCHOOL, THIRUVALLUR, THIRUVALLUR P.O., KOZHIKODE DISTRICT. 3. THE DISTRICT EDUCATIONAL OFFICER, VATAKARA. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R2 BY ADV. SMT.LIGEY ANTONY R3 TO R5 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1513/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DTD. 23.6.94. P2:- COPY OF THE GOVERNMENT ORDER DT. 6.4.2000. P3:- COPY OF THE ORDER DTD. 4.1.02 ISSUED BY THE 4TH RESPONDENT. P4:- COPY OF THE ORDER DTD. 20.3.02 PASSED BY THE 3RD RESPONDENT. P5:- COPY OF THE ORDER DTD. 6.1.05 PASSED BY THE 4TH RESPONDENT. P6:- COPY OF THE ORDER DTD. 19.12.05 ISSEUD BY THE 3RD RESPONDENT TO THE IST RESPONDENT. P7:- COPY OF THE INTERIM ORDER DTD. 5.12.05 IN WPC. 33724/05. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.1513/2006-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13th day of November, 2009 J U D G M E N T The petitioner herein is appointed as a Physical Education Teacher on 23/06/1994 in Santhi Niketan Secondary School, Thiruvalloor. Earlier, he was appointed in a leave vacancy from 27/09/1993 to 06/12/1993. Thereafter, he was appointed in a fresh vacancy as per Ext.P1. 2. The matter relating to the grant of approval of appointment of Physical Education Teachers including the petitioner was pending before the Government and finally by Ext.P2 order, the Government directed that appointments of 54 Physical Education Teachers will be regularised. Even though this Government Order was challenged in O.P.No.15565/2000 that was dismissed by Judgment dated 05/03/2001 and later confirmed in W.A.No.1254/2001. 3. The petitioner was granted approval only from 15/07/2000. Again the matter was taken up before the fourth respondent and by Ext.P3 a direction was issued to approve the appointments of 54 Physical Education Teachers from the date of original appointment. Accordingly, approval of appointment of the petitioner was granted as per Ext.P4. W.P.(C). No.1513/2006 -:2:- 4. Three years after, by Ext.P5, the Director of Public Instruction cancelled Ext.P3 stating that the approval can be granted only from the date of effect of the Government Order. By Ext.P6, recovery was ordered against the petitioner in regard to the excess amount of salary received by him. These are under challenge in this writ petition. 5. The respondents have filed a counter affidavit also. 6. The matter is now governed by the Judgment of this Court in W.P.(C).Nos.2315/2006 and 20652/2007 wherein the petitioners were persons included among the 54 teachers ordered to be regularised by the Government. While considering a similar question it was held therein, in paras 6 and 7 as follows:- “6. The objection now taken that the appointment can be approved only prospectively, is not supported by any Government Order. The wording in Ext.P1 shows that the Government has regularised the appointments of 54 Physical Education Teachers. That itself shows that the regularisation will take effect from the W.P.(C). No.1513/2006 -:3:- date of appointment itself. There is no direction in Ext.P1 that the appointments are to be approved only prospectively. As the Government has regularised 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 the Government in the matter. 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. W.P.(C). No.1513/2006 -:4:- 7. In the light of the above, Exts.P7 and P8 to the extent to which they affect the petitioners adversely, are quashed. The approval of appointment granted to the petitioners as per Exts.P3 to P6 will be treated as valid and they will be entitled for all consequential benefits accordingly.” 7. The petitioner herein is similarly placed and the reasoning adopted therein will govern this case also. The order Ext.P5 and the consequential direction in Ext.P6 to refund the salary cannot therefore be sustained. Once, the appointment has been regularised as per Ext.P2, the approval ordered as per Exts.P3 and P4 cannot be faulted. Hence the writ petition is allowed. Exts.P5 and P6 are hereby quashed. No costs. (T.R. Ramachandran Nair, Judge.) ms