IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 WP(C).No. 11645 of 2010(E) -------------------------- PETITIONER: ----------------- P.HASEENA, W/O. MAHAMOOD ALI AKBAR, AGED 35 YEARS, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), THANGAL'S SECONDARY SCHOOL, VADAKKANGARA, MALAPPURAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ----------------------- 1. THE STATE OF KERLA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONL OFFICER, MALAPPURAM. 5. THE MANAGER, THANGAL'S SECONDARY SCHOOL, VADAKKANGARA, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 TO R4 ADV. SRI.ESM.KABEER FOR R5 SRI.M.H.HUBAISE FOR R5 SRI.ABDUL MAJEED.N FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.11645/10 PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER NO.B2/6898/07 OF THE DISTRICT EDUCATIONAL OFFICER DT.9.11.07 EXT.P2 : COPY OF THE ORDER NO.B2/24735/07 OF THE DEPUTY DIRECTOR OF EDUCATION DT.2.4.08. EXT.P3 : COPY OF GO(RT)NO.1655/09/G.EDN. OF THE GOVERNMENT DT.24.4.09. EXT.P4 : COPY OF THE JUDGMENTOF THIS COURT IN W.P.(C)NO.16059/09-B DT.8.10.09 EXT.P5 : COPY OF THE APPOINTMENT ORDER OF THE PETITIONER AND THE APPROVAL THEREOF DT.2.12.09 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.11645 Of 2010-E -------------------------------------------------- DATED THIS THE 27TH DAY OF JULY, 2011 J U D G M E N T In this Writ Petition what is sought for is a direction to the District Educational Officer to modify Exhibit P5 order granting approval from 20.6.2007. 2. This is a case where the petitioner's right under Rule 51A of Chapter XIV-A KER has been accepted after this Court by Exhibit P4 judgment with a direction to the Manager to appoint the petitioner as HSA(Physical Science) with effect from 20.6.1997. 3. The petitioner's initial appointment was for the period from 10.1.2000 to 30.3.2000 as HSA (Physical Science) which appointment was approved and again she was appointed as HSA (Physical Science) from 6.6.2000 to 26.3.2002 which appointment has also been approved. 4. A resignation vacancy arose on 20.6.2007 when one Smt.Rajasree HSA(Physical Science) left the service. Without considering the claim of the petitioner, Manager appointed one W.P.(C)No.11645/10 -2- Smt.Zimily Jas who is a fresh hand. The approval was rejected and the matter was carried in an appeal and later before the Government by a revision petition filed by the Manager. All the orders passed are in favour of the petitioner. Finally this Court by Exhibit P4 judgment issued the following directions in paragraph No.8: “8. Therefore, the Writ Petition is allowed. There will be a direction to the 4th respondent to appoint the petitioner as H.S.A.(Physical Science) with effect from 20.6.2007 in implementation of Exts.P7, P8 and P10 orders, within a period of six weeks from the date of receipt of a copy of this judgment. If the Manager does not appoint the petitioner as such, respondents 2 and 3 will take appropriate action to see that the above orders are implemented. No costs.” Thereafter the Manager appointed the petitioner and the approval was granted as evident from Exhibit P5 with effect from 2.12.2009. 5. It is pointed out by the learned counsel for the W.P.(C)No.11645/10 -3- petitioner that as various orders issued by the Department were upheld by this Court in Exhibit P4 judgment approval has to be granted with effect from 20.6.2007, the date on which vacancy arose. It is pointed out that 2.12.2009 is only the date on which Exhibit P5 order is issued; but the appointment is effective from 20.6.2007 as evident from the said order itself. 6. In the counter affidavit filed by the District Educational Officer it is pointed out that after the receipt of the proposal from the Manager, a clarification was sought from the Director of Public Instruction with regard to the date of approval to be granted and the Director of Public Instruction by communication dated 4.2.2010 directed the District Educational Officer to approve the appointment from the date of joining duty by the appointee. It is also pointed out that the Manager ought to have appointed the petitioner on 20.6.2007 itself and the financial burden cannot be placed upon the Government and the petitioner will have to blame the Manager as the loss is caused due to the deliberate action of the Manager. 7. The learned counsel for the Manager submitted that appointment of a fresh hand was never approved by the W.P.(C)No.11645/10 -4- Department and therefore nobody else was paid salary and therefore it will not cause any financial burden to the Government. 8. Evidently, the petitioner is entitled for approval from 20.6.2007 which is the date of occurrence of vacancy. The said right having been upheld by various orders by the authorities concerned and by this Court by Exhibit P4 judgment, the restriction imposed to the grant of approval in Exhibit P5 order only from the date of the order, namely 2.12.2009 cannot be accepted. 9. In that view of the matter, Exhibit P5 to the extent to which the approval is granted only from 2.12.2009 is quashed. There will be a direction to the District Educational Officer to pass a fresh order by granting approval from 20.6.2007, within a period of one month from the date of receipt of a copy of this judgment. 10. The learned Government Pleader submitted that the financial burden should be placed on the Manager and the Government may be given a free hand to proceed against the Manager. Evidently, no additional financial burden is caused to W.P.(C)No.11645/10 -5- the Government and what is recognised already by various orders and by Exhibit P4 judgment is the right of the petitioner for approval from 20.6.2007. It is upto the District Educational Officer to pass an order on the claim for disbursement of salary, in the light of the objection of the Manager that no other teacher was approved or paid. He will also be heard in the matter. The Writ Petition is allowed and the petitioner will be granted all monetary benefits from 20.6.2007. No costs. SD/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn