IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 OP.No. 15202 of 1998(I) --------------------------------- PETITIONER: ------------------- S. SUSHAMA, LOWER PRIMARY SCHOOL ASSISTANT, ADITHYAVILASOM LOWER PRIMARY SCHOOL, KANNIMELCHERRY, MARUTHADY.P.O., KOLLAM-3. BY ADV. SRI.M.V.THAMBAN. RESPONDENTS: ----------------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE MANAGER, ADITHYAVILASOM LOWER PRIMARY SCHOOL, KANNIMEL CHERRY, MARUTHADY.P.O., KOLLAM-3. 3. THE ASSISTANT EDUCATIONAL OFFICER, KOLLAM. 4. G. SUNIL KUMAR, LOWER PRIMARY SCHOOL ASSISTANT, ADITHYAVILASOM LOWER PRIMARY SCHOOL, KANNIMALCHERRY, MARUTHADY, KOLLAM-3. 5. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. T.B. REMANI, ADV. SRI.V.A.MUHAMMED, ADV. SRI.K.E.HAMZA, ADV. SRI.E.S.M.KABEER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 15202/1998-I: ORDER ON C.M.P. NO. 26902/1998 IN O.P. NO. 15202/1998-I DISMISSED 16/09/2008. SD/- ANTONY DOMINIC, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE GOVERNMENT ORDER G.O.(RT).NO.4070/94/G. EDN. DTD. 03/10/1994. EXT.P.2: COPY OF THE JUDGMENT IN O.P. NO. 16881/94-I DTD. 03/01/95 OF THE HIGH COURT OF KERALA. EXT.P.3: COPY OF THE JUDGMENT IN W.A. NO. 37/95 DTD. 18/01/1996 OF THIS HONOURABLE HIGH COURT OF KERALA. EXT.P.4: COPY OF THE ORDER NO. K. DIS/4535/97/DPI/F4 DTD. 19/08/1997 OF THE R.1. EXT.P.5: COPY OF THE REVISION PETITION DT.D 09/09/1997 SUBMITTED BY THE PETITIONER BEFORE THE R.5. EXT.P.6: COPY OF THE JUDGMENT DTD. 04/11/1997 IN O.P. NO. 19362/97 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P.7: COPY OF THE GOVERNMENT ORDER G.O. (RT).NO.2218/98/GE DTD. 10/06/1998. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE ORDER NO. C.1201/93 OF THE R.3. DTD. 05/04/93. EXT.R2.B: COPY OF THE ORDER NO. L. IDS. B1-9987/93 OF THE D.E.O. KOLLAM DTD. 23/07/93. EXT.R2.C: COPY OF THE ORDER NO. 68302/L2/93/G. EDN. OF THE GOVERNMENT DTD. 09/12/1993. EXT.R2.D: COPY OF THE ORDER IN C.M.P. NO. 12499/1995 IN O.P. NO. 7075/1995 DTD. 03/07/1995. EXT.R2.E: COPY OF THE JUDGMENT IN O.P. NO. 7075/1995 OF THIS HONOURABLE COURT DTD. 01/04/96. EXT.R2.F: COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER OF THE ADINADU GOVT. U.P.S., KATTILKADAVU. O.P. NO. 15202/1998-I: EXT.R4.A: COPY OF THE REVIEW PETITION SUBMITTED BEFORE THE HONOURABLE MINISTER FOR EDN., TRIVANDRUM, DTD. 16/06/1998. EXT.R4.B: COPY OF THE NOTICE ISSUED BY THE GOVERNMENT DTD. 29/07/98. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J. = = = = = = = = = = = = = = O.P. No. 15202 OF 1998 (I) = = = = = = = = = = = = = = Dated this the 16th day of September 2008 J U D G M E N T Petitioner was appointed as an L.P.S.A. under the 2nd respondent. Initial appointment was against a maternity leave vacancy and was for the period from 7.12.1988 to 4.3.1989. However, she could work only for 11 days as according to the petitioner, there was a faction fight regarding the management of the school and as a result thereof she was obstructed from entering into the school premises. Though she complained of to the AEO and the police and a criminal case was also registered, she could work only for 11 days. 2. In the meantime, the papers submitted to the AEO for approval of the appointment were returned to the manager for resubmission after curing the defects. The manager did not do anything further. While the petitioner was pursuing the matter of approval before the higher authorities including the Government, in O.P. No.15202/1998 (I) -2- the meantime, the person who assumed the post of manager subsequently and belonging to the rival faction of the manager who appointed the petitioner, appointed the 4th respondent on 2.1.1990. 3. Much later to all these developments, by Ext. P1 order dated 3.10.1994, the 5th respondent held that the petitioner is entitled to have her appointment in the maternity leave vacancy approved. Ext. P1 order was challenged by the then manager by filing O.P. No. 16881/94. That writ petition was dismissed by Ext. P2 judgment. Against Ext. P2, W.A. No. 37/95 was filed by the Manager, the 4th respondent herein. The appeal was also dismissed by Ext. P3 judgment. Subsequent to Ext. P3, by order dated 18.3.1996 the manager appointed the petitioner recognizing her claim under Rule 51A of Chapter XIV A, K.E.R. 4. Thereafter, the petitioner claimed that her appointment should have been with retrospective effect from 2.1.1990 and also claimed that all consequential benefits should also be given. It is seen that prior to her appointment itself she had filed O.P. No. 7075/95. In that O.P., this Court passed Ext. R2(d) interim order dated 3.7.1995 which reads as follows: O.P. No.15202/1998 (I) -3- “There will be an interim direction to the 5th respondent, Assistant Educational Officer, Kollam, to grant appointment to the petitioner in the next arising vacancy of L.P. School Assistant in the School of the 6th respondent and grant approval to the appointment. It is also directed that no appointment shall be made to the post of L.P. School Assistant in the School without appointing the petitioner. 2. It is seen that inspite of Ext. P7 Judgment dated 3.1.1995 the 6th respondent has not issued an order of appointment in favour of the petitioner and the 7th respondent is allowed to continue as L.P. School Assistant and draw salary. Even though the respondents 6 and 7 have filed Writ Appeals against Ext. P7 Judgment, it is stated at the Bar that no order of stay of operation of the Judgment has been obtained. 3. Under these circumstances, whether 7th respondent is entitled to salary after Ext. P7 judgment and whether for that period the petitioner in this original petition is entitled to claim salary are matters to be considered. Appropriate directions will be given later in this original petition in respect of the above.” As already noticed, it was during the pendency of this O.P., the petitioner was appointed on 18.3.1996, following the dismissal of W.A. No. 37/95. Subsequent to the dismissal of the writ appeal, when O.P. No. 7075/95 came up for consideration before this Court on 1.4.1996, the O.P. was closed and Ext.R2(e) judgment reads as follows: “The petitioner submits that she had been appointed pursuant to Judgment in W.A. No. 37/95. As such, no O.P. No.15202/1998 (I) -4- further orders are necessary in this O.P. Accordingly, the O.P. is closed.” From the above, it is therefore evident that monetary benefits for the period from 2.1.1990 to 18.3.1996 when she was appointed, was one of the claims urged in O.P. No. 7075/95 filed by her. As is evident from Ext. R2(e) judgment, that claim was not urged by the petitioner when the O.P. came up for final disposal. This necessarily means that the claim for monetary benefits was given up at the time when the OP was heard and Ext.R2(e) judgment was rendered. 5. Despite this, petitioner pursued the matter before the D.P.I. and by Ext. P4 dated 19.8.1997 her claim was rejected. Petitioner thereafter filed Ext.P5 revision before the Government and complaining of delay in the disposal of the revision, the petitioner approached this Court by filing O.P. No. 19362/97. That O.P. was disposed of by Ext. P6 judgment directing that Ext. P5 be considered and orders passed. Accordingly, the matter was considered by the 5th respondent and Ext. P7 is the order that is passed. Paragraph 9 of Ext. P7 reads as under: “Government are therefore pleased to approve the appointment of Smt. S. Sushama, LPSA, AVLPS, Kannimel, Kollam with effect from 2.1.90, the date on which a O.P. No.15202/1998 (I) -5- permanent vacancy of LPSA arose in AVLPS, Kannimel, with all service benefits excluding back arrears and to refix her seniority accordingly. The Director of Public Instruction, Thiruvananthapuram will take action as ordered above. The Revision Petition is disposed off accordingly.” A reading of paragraph 9 of Ext. P7 order shows that the entire claims of the petitioner except monetary benefits for the period from 2.1.1990 to 18.3.1996, has been allowed by the Government. 6. In this O.P., petitioner claims that Ext. P7 to the extent monetary benefits has been declined is illegal. As already noticed, monetary benefit for the period from 2.1.1990 to 18.3.1996 was one of the issues that was raised by the petitioner in O.P. No. 7075/95. The interim order dated 3.7.1995 (Ext.R2(d)) extracted above is clear on this aspect. It is also evident from Ext.R2(e) judgment dated 1.4.1996 that though she had urged this claim on the earlier occasion, the claim for monetary benefits was not urged at the time when the O.P. came up for final hearing. As already concluded by me, the effect of the judgment is that the monetary benefits have been given up by the petitioner. 7. Once, monetary benefits were given up by the petitioner at the time when O.P. No.7075/95 was disposed of, it is O.P. No.15202/1998 (I) -6- impermissible for the petitioner to claim the said benefit in a subsequent proceedings. If that be so, I do not find anything illegal in Ext. P7. The original petition fails and is dismissed. ANTONY DOMINIC JUDGE jan/- O.P. No.15202/1998 (I) -7- ANTONY DOMINIC, J. = = = = = = = = = = = = O.P. No. 15202 OF 1998 (I) = = = = = = = = = = = = = = = = = = J U D G M E N T 16TH SEPTEMBER, 2008.