IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 WP(C).No. 31203 of 2006(M) -------------------------- PETITIONER(S): --------------- 1. M.JAYASREE, UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P.SCHOOL, PAZHOOR, KUTTIPPURAM, MALAPPURAM DISTRICT, RESIDING AT ANASWARA, KUTTIPPURAM. 2. K.JAYASREE, UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P.SCHOOL, PAZHOOR, KUTTUPPURAM, MALAPPURAM DISTRICT, RESIDING AT VIJAYA VIHAR, KOLALAMBU, EDAPPAL. 3. T.M.KUNHIMOHAMMED, PEON, UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P.SCHOOL, PAZHOOR, KUTTIPPURAM, MALAPPURAM DISTRICT, RESIDING IN THIRUNAVAYAKALATHIL, MAYAPPUZHA HOUSE, PAZHUR, KUTTIPPURAM. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.S.LAKSHMY RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATION OFFICER, KUTTIPPURAM, MALAPPURAM DISTRICT. 4. THE MANAGER, A.M.U.P.SCHOOL, PAZHOOR, KUTTIPPURAM, MALAPPURAM DISTRICT. GOVT. PLEADER SHRI.ANTONY MUKKATH FOR R1 & R3 SRI.SHANKAR V. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 31203/2006 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER APPROVING THE APPOINTMENT OF P1 DTD 1.9.03 P2. -DO- P2 DTD.26.2.01. P3. COPY OF THE GOVT. ORDER DTD.1.2.2006. P4. COPY OF THE ORDER DTD.3.3.2006. P5. COPY OF THE ORDER OF R3 DTD.24.5.06. P6. COPY OF THE REVISION DTD.10.6.06 BEFORE R2. P7. COPY OF THE ORDER DTD.26.10.06 OF R2. P8. COPY OF THE ORDER BY R3 DTD.28.11.09. P8. (SIC) COPY OF THE ORDER OF ADDITIONAL D.P.I. DTD.30.6.07. P9. COPY OF THE ORDER OF THE GOVT. DTD.13.3.07. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 31203 of 2006 ================== Dated this the 4th day of April, 2011 J U D G M E N T First two petitioners are Upper Primary School Assistants and the 3rd petitioner is a Peon of the A.M.U.P. School, Pazhoor in Malappuram district. They were appointed in 2003 by the Manager. Their appointments were approved by the Assistant Education Officer. They were paid salary pursuant to that approval till June, 2005. Thereafter, their salaries were withheld. That was on the ground that their appointments were wrongly approved, since the 4th respondent- Manager had not appointed protected teachers before appointing the petitioners, which was a mandatory requirement as per the Government orders on the subject. Subsequently, the Government issued Ext.P3 order condoning the irregularity and directing that the appointments of the petitioners along with similarly situated other employees of the aided schools be approved with effect from 1.2.2006 without any retrospective effect. Thereafter, the Manager filed representations for payment of arrears of salary to the petitioners from June, 2005 till January, 2006. By, Ext.P4 order, the Additional Director of Public instructions directed the Assistant Education Officer to consider the same in accordance with Ext.P3 oder. Pursuant to the same, by Ext.P5, the Assistant Education Officer rejected their claim on w.p.c.31203/06 2 the ground that as per Ext.P3 Government order, the petitioners are eligible for salary only with effect from 1.2.2006. The Manager again represented to the Director of Public Instructions. By Ext.P6, the Director of Public Instructions again directed the Assistant Education Officer to consider the claim in accordance with Ext.P3 order. Again, by Ext.P8 order, the claim of the Manager for payment of arrears of salary to the petitioners for the period prior to 1.2.2006 was not only rejected but it was directed that the salary paid to the petitioners upto June, 2005, be recovered from the petitioners. The petitioners seek the following reliefs: “a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to sanction and disburse the pay and allowances including the arrears payable to the petitioners for the period June 2005 to May, 2006 expeditiously as possible. aa) Call for the records of the case leading to Ext.P7 and quash the same by the issue of a writ of certiorari or other appropriate writ or order and further direct the 2nd respondent to pass appropriate orders to disburse the salary including the arrears payable to the petitioners. (ab) call for the records of the case leading to Ext.P8 and quash the same by the issue of a writ of certiorari or other appropriate writ or order.” 2. A counter affidavit has been filed by the 3rd respondent supporting the impugned order. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that at the time of w.p.c.31203/06 3 appointment of the petitioners, there was a Government order, which required appointment of protected teachers before appointing the petitioners, insofar as the 4th respondent's school was a newly upgraded school. That being so, clearly the appointments of the petitioners are irregular and the approval of such appointments is also unsustainable. But the Government took a lenient view and, by Ext.P3 order, decided to approve the appointments with effect from 1.2.2006 without retrospective effect. The petitioners are not challenging Ext.P3 order denying retrospective effect to such approval. They do not also challenge the Government orders directing appointment of protected teachers as a condition for approval of future appointments. Therefore, they are bound by Ext.P3 order. The result is that the petitioners are not entitled to salary for the period prior to 1.2.2006. Therefore, the denial of arrears of salary from June, 2005 to January 2006 as also the direction to recover the salary paid to them from the date of their appointments till May, 2006 is also valid and sustainable. Therefore, the challenge against Ext.P8 is without any merit. 5. But I find that the petitioners cannot be blamed for the situation in which they are. If at all anybody is liable, it is only the Manager, who appointed the petitioners and the Assistant Education Officer, who approved such appointments illegally. Therefore, I am of w.p.c.31203/06 4 opinion that the amounts ordered to be recovered by Ext.P8 should be recovered from the Manager and the Assistant Education Officer. I further note that the Government has taken steps to recover the salary paid to the petitioners from the Assistant Education Officer, against which, the Assistant Education Officer has filed W.P.(C). No.17667/2008, which is also posted along with this writ petition, which has been dismissed for default. Therefore, I direct that the salary paid to the petitioners for the period from the date of their appointments till May, 2005 be recovered from the Manager and the Assistant Education Officer. To that extent Ext.P8 would stand modified. In all other respects Ext.P8 is confirmed. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge