IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WA.No. 171 of 2007() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.38114/2001 Dated 20/06/2006 .................... APPELLANTS/ RESPONDENTS ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, VATAKARA. BY GOVERNMENT PLEADER RESPONDENT/ PETITIONER ------------------------------------- N.K.SREEDHARAN, (RETD. DRAWING TEACHER FROM GUJARATHI S.N.SCHOOL, VATAKARA), RESIDING AT SAVITHALAYAM, CHOLAM VAYAL, VATAKARA. ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------ W.A.No.171 OF 2007 ------------------------------ Dated this the 23rd day of January, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The respondent herein filed the writ petition seeking to implement Ext.P2 order issued in his favour. The petitioner was a drawing teacher. As per the rules, the student strength of the school permitted only the creation of a part time post. But, the Government invoking its power to relax the rule, issued Ext.P2 order dated 8.6.2000 to approve the appointment of the petitioner as full time drawing teacher along with two other teachers, who were working in other schools. The learned Single Judge, on finding that Ext.P2 confers certain benefits on the writ petitioner and the same has not so far been implemented, issued a direction to grant the benefit of that order to the petitioner and disburse the arrears of salary with interest. The aggrieved respondents therein have preferred this appeal and along with that appeal memorandum, they have W.A.No.171/2007 2 produced Annexure-1 order dated 9.1.2002, as per which Ext.P2 order has been cancelled. So, the appellants would submit, the learned Single Judge has issued a direction to implement an order which was not in force. So, the appellants pray for reversing the judgment of the learned Single Judge. 2. We heard the learned counsel appearing for the respondent. He tried to attack Annexure-1 collaterally and tried to sustain the direction of the learned Single Judge. Collateral challenge is not permissible in this case, as the writ petition is filed by the respondent herein. If he wanted to challenge Annexure-1, he should have challenged it in that writ petition. Further, if the petitioner is not granted some benefit against that order, there cannot be any collateral challenge. If some rights already enjoyed by the petitioner are taken away and if that order is void, he can ignore it and in enforcement proceedings he may challenge it. But, the above principles do not have any application to the facts of the case as Ext.P2 was never implemented and before its implementation, it was recalled by Annexure-1. As long as Annexure-1 is in force, the judgment of the learned Single Judge cannot be sustained. Accordingly, it is reversed. This judgment will not W.A.No.171/2007 3 affect the rights, if any, of the respondent to challenge Annexure-1 order in appropriate proceedings. The Writ Appeal is allowed as above. (K.BALAKRISHNAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps