IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 WP(C).No. 20201 of 2011(A) --------------------------------------- PETITIONER: ------------------- DHANYA GOPAL, LOWER PRIMARY SCHOOL ASSISTANT, AIDED L.P SCHOOL, KOTTARASSERY, VIA. PUTHUKKODE, POST THEKKEPOTTA, PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM. RESPONDENTS: ------------------------ 1. THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR - 678 541. 2. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD - 678 001. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 4. THE MANAGER, ALP SCHOOL, KOTTARASSERY, VIA. PUTHUKKODE, POST THEKKEPOTTA, PALAKKAD DISTRICT - 678 546. *ADDITIONAL R.5. IMPLEADED: 5. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. *IMPLEADED AS PER ORDER DATED 23/08/2011 IN I.A. 14034/11. R1 TO R3 & ADDL. R5 BY GOVERNMENT PLEADER SMT. NISHA BOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.20201/2011-A: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE GOVERNMENT ORDER G.O.(P).10/10/G. EDN. DTD. 12/01/2010. EXT.P.2: COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2010-11. EXT.P.3: COPY OF THE INTERIM ORDER IN W.P.(C).34785/10. EXT.P.4: COPY OF THE COMMUNICATION DTD.2/11/2010 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER. EXT.P.5: COPY OF THE AFFIDAVIT SUBMITTED BY THE MANAGER. EXT.P.6: COPY OF THE APPROVAL ORDER OF APPOINTMENT OF THE PETITIONER AS L.P.S.A. WITH EFFECT FROM 01/06/2010. EXT.P.7: COPY OF THE JUDGMENT IN W.P.(C).34785/10. EXT.P.8: COPY OF THE COMMUNICATION ISSUED BY THE SENIOR SUPERINTENDENT IN THE OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR DTD. 11/04/2011. EXT.P.9: COPY OF THE REPRESENTATION DTD. 19/04/2011 SUBMITTED BY THE PETITIONER TO THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. EXT.P.10: COPY OF THE SHIFTING ORDER ISSUED BY THE MANAGER SHIFTING THE PETITIONER TO THE ADDITIONAL DIVISION VACANCY. EXT.P.11: COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER, SOUTH MALABAR. EXT.P.12: COPY OF THE ORDER DTD. 11/10/1946 ISSUED BY THE DEPUTY INSPECTOR OF SCHOOLS. EXT.P.13: COPY OF THE ORDER OF APPROVAL OF APPOINTMENT OF SMT. LOVELY CHUMMAR. EXT.P.14: COPY OF THE GOVERNMENT ORDER, G.O.(RT).301/10/G. EDN. DTD. 16/01/2010. EXT.P.15: COPY OF THE GOVERNMENT ORDER G.O.(RT).1386/01/G. EDN. DTD. 02/04/2011. RESPONDENT'S ANNEXURE:- ANNEXURE R5.A: COPY OF THE ORDER NO. V4/17280/2011/DPI DTD. 10/08/2011. //TRUE COPY// P.S. TO JUDGE Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 20201 of 2011 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of October, 2011. JUDGMENT The petitioner herein has approached this Court raising grievances against Ext.P8 order by which the payment of salary to her, has been denied. It is contended that when the appointment stands approved, there is no reason for denying the payment of salary. The reason stated in Ext.P8 to deny the salary is that the approval granted is not legal and valid. 2. The pleadings of the parties show the following: It appears that the petitioner sought the benefit of Ext.P1 Government Order and filed a writ petition before this Court wherein Ext.P3 interim order was passed. Therein, this Court directed the Assistant Educational Officer to consider the question of approval if the Manager executes a bond in terms of Ext.P1 Government Order. Thereafter, the Manager submitted Ext.P5 declaration and by Ext.P6 order, the appointment was approved from 1.6.2010 onwards in the anticipatory additional post. The writ petition including the one filed by the petitioner, have been disposed of by Ext.P7 judgment. 3. The fifth respondent has filed a statement as directed by this Court. The stand taken therein is that the appointment of the petitioner is not in an wpc 20201/2011 2 additional division vacancy, as she was initially appointed as L.P.S.A. in the promotion post of Shri Muhammed Hussain as Headmaster from 1.4.2008. She joined as L.P.S.A. on 5.6.2008. As the vacancies in the school should have to be filled up by protected hands only, the first respondent rejected the approval of appointment of the petitioner. This was confirmed by the Deputy Director of Education, the Director of Public Instruction and by the Government. Against, the same, the petitioner filed W.P.(C) NO.25539/2010 and this Court directed consideration of the revision petition within a time frame. Again, the revision petition was rejected affirming the orders passed by the statutory authorities below. The said order was challenged by the petitioner by filing W.P.(C) No.5945/2010. It is stated in the statement that the same is pending, whereas the learned counsel for the petitioner submitted that the said writ petition stands dismissed as withdrawn by judgment dated 7.9.2011. 4. With regard to the claim for appointment in the additional division vacancy, what is averred in para 3 is that the claim raised by the petitioner in W.P.(C) No.34785/2010 that the appointment was in an additional division vacancy, prima facie is not correct, as the petitioner was appointed in the promotion vacancy with effect from 5.6.2008 only and the above fact was not brought to the notice of this Court. It is contended that the wpc 20201/2011 3 approval granted by the Asst. Educational Officer with effect from 1.6.2010 is irregular, since the appointment order issued by the Manager on 5.6.2008 was converted as one issued on 1.6.2010. Annexure R5(a) is the order passed by the Director of Public Instruction with regard to the finalisation of the disciplinary proceedings against the then Asst. Educational Officer wherein one of the allegations is regarding the irregularity in the appointment of the petitioner. 5. The petitioner has filed a reply affidavit wherein Ext.P10 has been produced. It is a letter addressed to the Asst. Educational Officer by the Manager stating that the appointment of the petitioner has been shifted to the additional post with effect from 1.6.2010. Learned counsel for the petitioner submitted that in the light of the said shifting done by the Manager as per Ext.P10, there cannot be any objection with regard to the approval granted and payment of salary. It is pointed out that in the additional division vacancy, the petitioner had a rightful claim. It is also submitted that after the appointment was approved by Ext.P6, salary was paid from June 2010 to March 2011 and therefore the objection with regard to the payment of salary cannot be sustained. 6. Learned Government Pleader submitted that the only appointment order issued in favour of the petitioner as evident from the proceedings, is wpc 20201/2011 4 the original of Ext.P6 whereby the petitioner's appointment is from 5.6.2008 in the promotion vacancy of Shri Muhammed Hussain. It is pointed out that the Manager has not issued any fresh appointment order. Learned Govt. Pleader further submitted that the appointment, if any, had to be made from the list of protected teachers. 7. Of course, the approval of appointment of the petitioner has not been cancelled by any competent proceedings, but as a prelude to the various steps, by Ext.P8 the payment of salary has been withheld. But in the light of the pendency of the writ petition, nothing has proceeded further. As far as the order of approval granted by the Assistant Educational Officer is concerned, what is pointed out is that there is no fresh appointment order in the additional division vacancy sanctioned to the school in the year. Of course, learned counsel for the petitioner is relying upon Ext.P10 which is the shifting order issued by the Manager. 8. Since the entire aspect will have to be examined by the competent authority, herein the Director of Public Instruction which is the revisional authority, it is only proper that the said authority takes a decision after notice to the petitioner and the Manager. 9. There will be a direction to the Director of Public Instruction, the additional fifth respondent herein, to look into the various aspects and pass wpc 20201/2011 5 appropriate orders as directed above, within a period of six weeks from the date of receipt of a copy of this judgment, with notice to the petitioner and the Manager. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/