IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 4353 of 2011(T) ------------------------------- PETITIONER: -------------- J.LEENA, D/O.LAKSHMANAN, "LAVANYA", PARUMALA P.O., MANNAR, WORKING AS H.S.A. (SOCIAL SCIENCE), D.B.H.S.S., CHERIYANADU, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADVS. SRI.P.HARIDAS SMT.S.SIKKY RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF POUBLIC INSTRUCTIONS, OFFIE OF THE D.P.I., THIRUVANANTHAPURAM - 695 001. 3. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA - 689 101. 4. THE DISTRICT EDUCATIONAL OFFICER, KUTTANAD-679 533. 5. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD OFFICE, NANDANCAUD, THIRUVANANTHAPURAM- 695 003. 6. SMT.JAYAMOL, H.S.A., DBHS., THAKAZHI - 688 562. BY ADVS. SRI.K.N.VENUGOPALA PANICKER, SC, TDB FOR R5 SRI.V.A.MUHAMMED FOR R6 SRI.K.E.HAMZA FOR R6 SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.4353/2011 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.SC(2)/105278/04 Director of Public Instruction D-DIS DTD. 19.7.05 OF R2. EXT. P2 : COPY OF REPRESENTATION DTD. 19.7.05 SUBMITTED BY PETITIONER. EXT. P2(a) : COPY OF REPRESENTATION DTD. 26.6.06 SUBMITTED BY PETITIONER. EXT. P2(b) : COPY OF REPRESENTATION DTD. 13.10.05 SUBMITTED BY PETITIONER. EXT. P2(c) : COPY OF REPRESENTATION DD. 16.1.07 SUBMITTED BY PETITIONER. EXT. P3 : COPY OF RECENT REPRESENTATION DTD. 18.5.07 SUBMITTED BY PETITIONER. EXT. P4 : COPY OF JUDGMENT DTD.16.11.07 IN WP(C) 33842/07-D OF THIS COURT. EXT. P5 : COPY OF ORDER No.G.O.(Rt) 3416/08/G.EDN DTD. 26.7.08 TRIVANDRUM. EXT. P6 : COPY OF ORDER DTD. 8.2.10 OF R5 No.ROC/503/10/SUIT/ EDN. EXT. P7 : COPY OF REPRESENTATION DTD. 28.6.10 SUBMITTED BY PETITIONER BEFORE R3 AND R4. EXT. P8 : COPY OF COVERING LETTER DTD. 18.7.10. EXT. P9 : COPY OF LETTER FROM R4 DTD. 5.10.10. 6TH RESPONDENT'S EXHIBITS: EXT. R6(a) : COPY OF G.O.(Ms) 148/98/G.EDN OF GOVT. DTD. 8.5.98. EXT. R6(b) : COPY OF JUDGMENT IN WP(C) 17055/05-E DTD. 21.12.09. EXT. R6(c) : COPY OF REPRESENTATION SUBMITTED BEFORE GOVT. DTD. 30.6.11. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.4353 OF 2011 --------------------------------------- Dated this the 30th day of November, 2011. J U D G M E N T The petitioner herein seeks for implementation of Exts.P5 and P6 by which the lien adjustment will have to be approved by the District Educational Officer concerned. 2. In Ext.P5, the Government ordered that it is the duty of the Manager to regularise the service of the petitioner from 15.07.2004 to 14.07.2005 by adjusting the lien of the teacher in some other schools under the Management or by reverting the junior most teacher in the Management for regularising the break in the service. A direction was issued to the Manager namely, the Travancore Devaswom Board Schools to adjust the lien of Smt.Leena and to disburse the pay and allowances due to her immediately and report compliance to Government. 3. The crucial period therefore is from 15.07.2004 to 14.07.2005. The 6th respondent is junior to the petitioner. The W.P.(C) No.4353/2011 2 said respondent has worked in the post in question during that period and has received salary which, according to the learned counsel for the 6th respondent, is with approval. 4. After the issuance of Ext.P5 Government Order, the Manager has issued Ext.P6 proceedings. By Ext.P6, the petitioner is shifted from D.B.H.S. Parumala and adjusted in the retrenchment vacancy (only for the period from 15.07.2004 to 14.07.2005) of Smt.Jayamole G.Nair in compliance of Ext.P5 order passed by the Government. The Manager has also issued a direction to the 6th respondent to refund the excess amount drawn as salary for the period from 15.07.2004 to 14.07.2005 amounting Rs.79,184/- to establish the vacancy against which the lien of the petitioner is adjusted. 5. Learned Government Pleader submitted that so far recovery has not been effected by the Manager and therefore, approval has not been granted to Ext.P6 proposals. Learned counsel for the 6th respondent raised a contention that the proposal of the Manager as per Ext.P6 directing the 6th respondent to refund the salary received for the period is not W.P.(C) No.4353/2011 3 in tune with Ext.P5 order and that there is no direction in Ext.P5 to refund the salary and the only direction is to adjust the lien. 6. Complaining of the proceedings of the Manager as per Ext.P6 to the extent of the direction to refund the salary for the said period, the 6th respondent has moved the Government by filing Ext.R6(c) representation. Therein she has also prayed to adjust her lien in the category of U.P.S.A for the period from 15.07.2004 to 14.07.2005. Therefore, evidently, the District Educational Officer is not in a position to finalise Ext.P6 in the light of the pendency of Ext.R6(c) also. 7. Learned counsel for the petitioner submitted that if approval is not granted regularising the break in service of the petitioner for the period from 15.07.2004 to 14.07.2005, the petitioner will not be able to get proper fixation of salary and other allowances. It is submitted that the pendency of Ext.R6(c) need not delay the approval/regularisation of the said period in her favour. 8. It is submitted that even though the petitioner is entitled for salary for the above period, since the 6th respondent has W.P.(C) No.4353/2011 4 taken up the matter before the Government, approval by the District Educational Officer of Ext.P6 may be directed to be ordered at present and the direction with regard to the refund part may wait till orders are passed by the Government. Accordingly, this writ petition is disposed of with the following directions: There will be a direction to the 4th respondent to approve the proposal Ext.P6 except the direction to refund the excess salary drawn by the 6th respondent. Appropriate orders will be passed with regard to the regularisation of break in service of the petitioner from 15.07.2004 to 14.07.2005. Once the period is regularised as above, refixation of pay and allowances of the petitioner will also be made. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. There will be a direction to the Government to consider and pass orders on Ext.R6(c) representation filed by the 6th respondent, with notice to the petitioner and the respondents 5 and 6, within a period of five months from the date of receipt of a copy of this judgment. The recovery proposed as against the W.P.(C) No.4353/2011 5 6th respondent will be kept in abeyance till such orders are passed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp