IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 35182 of 2007(L) -------------------------- PETITIONER(S): ------------------ 1. K.SREEDHARAN MASTER, ASSISTANT TEACHER, MUNICIPAL U.P.SCHOOL, PAYYANNUR, KANNUR DIST. (S/O P.K.NARAYANAN NAMBIAR, KAKKOPRATH HOUSE, NEAR CHAKKARAPANI TEMPLE, THRIKKARIPUR, ELAMBACHI P.O., KASARAGOD DIST) 2. SIVASANKARAN, S/O SANKARAN NAIR, KADAIKARA HOUSE, KANDANGALI, P.O.PAYYANNUR, KANNUR DIST.670307. BY ADV. SRI.KALEESWARAM RAJ SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR. 3. SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR (MANAGER, MUNICIPAL U.P.SCHOOL, PAYYANNUR) 4. SREEDHARAN, MULLOLI UPSA, MUNICIPAL U.P.SCHOOL, PAYYANNUR. 5. VALSARAJAN NAIR, LPSA, MUNICIPAL U.P.SCHOOL, PAYYANNUR. ADV. SRI.V.V.NANDAGOPAL NAMBIAR FOR R.5 SMT.PREEJA. P.VIJAYAN FOR R.5 SRI.SHIJU ABRAHAM VERGHIS FOR R.5 SRI.P.RAMAKRISHNAN FOR R4 SRI.M.SASINDRAN FOR R3 GOVT.PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.35182/2007 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF GO(RT) NO.3309/2003/G.EDN. DT 18.8.2003. EXT.P2: TRUE COPY OF THE ORDER DT 25.1.2005. EXT.P3: TRUE COPY OF THE JUDGMENT DT 16.10.2006 IN WPC NO.8508/2006. EXT.P4: TRUE COPY OF THE JUDGMENT DT 13.10.2006 IN WPC 36893/2003 EXT.P5: TRUE COPY OF THE GO(RT) NO.1631 2007/G.EDN DT 12.4.2007. EXT.P6: TRUE COPY OF THE ORDER DT 7.8.2007 IN RP NO.752 OF 2007. EXT.P7: TRUE COPY OF THE JUDGMENT DT 9.8.2007 IN WPC NO.14081/2007. EXT.P8: TRUE COPY OF THE ORDER DT 22.2.2003 ISSUED BY THE DDE, KANNUR. EXT.P9: TRUE COPY OF THE REPRESENTATION DT 11.9.2007 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P10: TRUE COPY OF GO(RT) NO.5166/07/G.EDN. DT 13.11.2007. EXT.P11: TRUE COPY OF LETTER DT 22.10.2007. EXTS. OF R5 EXT.R5(a): TRUE COPY OF THE REPRESENTATTION DT.10.11.2003. EXT.R5(b): TRUE COPY OF THE COMPLAIT DTD.12.11.2003. //TRUE COPY// PA TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 35182 OF 2007 (L) ===================== Dated this the 2nd day of March, 2010 J U D G M E N T Ext.P1 is the order passed by the Government of Kerala according sanction for the bifurcation of the Upper Primary Section from the Municipal Higher Secondary School, Payyannur subject to the condition that bifurcation shall not involve creation of any new post or any additional financial commitment to the Government. 1st petitioner states that on the basis of Ext.P1, he being the senior most Assistant Teacher, was put in charge as Headmaster of the UP Section, which was bifurcated by Ext.P1. 2. As he was discharging the duty of Headmaster, 1st petitioner represented for sanctioning the post of Headmaster and also for payment of wages at the scale as applicable to the post of Headmaster. That request was rejected by Ext.P2 order of the Government on the ground that bifurcation was without creation of any new post or any additional financial commitment to the Government. 3. At that stage, petitioner filed WP(C) No.8508/06 before this Court and that writ petition was disposed of by Ext.P3 WPC No. 35182/07 :2 : judgment, paragraphs 5 and 6 of which being relevant, are extracted below for reference: 5. Learned counsel for the petitioner has also placed heavy reliance on Rule 5 of Chapter XXIII K.E.R. which mandates that in every Upper Primary School there may be one post of Headmaster. No institution shall be allowed to function without a head. There must be an administrative head to ensure that the institution functions properly. It is all the more important when the institution in question is imparting education to children. In my view, the stand taken by the Government is totally untenable. Petitioner has been discharging the duties of Headmaster in the school for the last more than three years, though on record he has been designated as Teacher-in-charge. Therefore, there is no justification in denying him the salary attached to the post in question. 6. In the above view of the matter, the request made by respondent No.2 for sanctioning the post of Headmaster in the school has to be necessarily considered favourably by the Government. Therefore, Ext.P6 order is quashed. The Government shall issue appropriate orders sanctioning the post of Headmaster in the Upper Primary Section of the school in the light of the observations made above, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. Petitioner shall be paid the consequential benefits without any further delay. (emphasis supplied) 4. It is stated that in the meanwhile WP(C) Nos.36893 & 38262 of 2003 were filed before this Court against Ext.P1 order of bifurcation. Those writ petitions were disposed of by Ext.P4 judgment rendered on 13th of October, 2006 directing consideration of the representations against Ext.P1. In pursuance WPC No. 35182/07 :3 : to the said judgment, the matter was considered, and by Ext.P5 order dated 12/4/2007, the 1st respondent cancelled Ext.P1 order of bifurcation. 5. Subsequently, 1st respondent also sought review of Ext.P3 judgment by filing RP No.752/07. That review petition was disposed of by Ext.P6 order dated 7/8/07, recording the submission that Ext.P5 order which was produced there as Annexure A2 will be recalled and directing that “the Government shall take a comprehensive decision in compliance with the directions contained in the judgments referred to above within 2 months”. Accordingly, the review petition was closed. One of the judgments referred to therein is Ext.P3 judgment. 6. Based on Ext.P6, WP(C) No.14081/07 filed challenging Ext.P5 which was also heard along with RP No.752/07 was closed by Ext.P7 judgment. In this judgment also, the direction in Ext.P6 that “the Government was directed to pass a comprehensive order in terms of the directions contained in the common judgment in WP(C) No.36893/03 and WP(C) No.38262/03 and also in WP(C) No.8508/06” is reiterated. The fact that Ext.P5 was recalled is also recorded therein. 7. Based on Exts.P4, P6 and P7, the Government passed WPC No. 35182/07 :4 : fresh orders, which is Ext.P10. In this order, Ext.P1 order of bifurcation is cancelled and the claim of the 1st petitioner for wages is also turned down. It is challenging Ext.P10, this writ petition is filed. 8. The operative portion of Ext.P10 reads as under: Considering all the issues related to the case, Government are pleased to confirm the cancellation of the bifurcation ordered in Government Order read as 4th paper above in compliance with the judgment dated 7.8.2007 in RP No.752/2007. Government are also pleased to reject the claim of Sri.K.Sreedharan for the Headmaster's scale and the consequential benefits since he was given the post of teacher in charge by the Secretary, Municipal Council, Payannur, without adhering to the conditions stipulated in Government Order read as 1st paper above. 9. In so far as the issue of bifurcation is concerned, a reading of this order itself discloses that Ext.P1 order was passed without complying with the statutory provisions. In such a situation and having regard to the facts as stated in Ext.P10, I see absolutely no merit in the contention raised by the counsel for the petitioners against the order cancelling Ext.P1 order of bifurcation. 10. However, as far as the claim of the first petitioner for wages is concerned, he contends that he discharged duties of Headmaster for the period from 15/9/2003 to 22/5/2007. It is true WPC No. 35182/07 :5 : that the post of Headmaster is not sanctioned. In para 5 and 6 of Ext.P3 judgment, which has been extracted in the earlier portion of this judgment, it can be seen that overruling the objections raised by the respondents, this Court directed that the post be sanctioned. Although review of the judgment was sought, that review petition was disposed of by Ext.P6 without in any manner diluting the directions in Ext.P3. This position is also reiterated in Ext.P7 judgment. Therefore, irrespective of the review and the later judgments, the direction requiring sanctioning of the post of Headmaster was kept intact by this Court. If that be so, irrespective of the fact that the bifurcation has been cancelled, for the period during which the 1st petitioner discharged duties of Headmaster, a post is liable to be sanctioned and the 1st petitioner is to be paid wages for the period he actually discharged duties. 11. Therefore, the writ petition is disposed of directing the 1st respondent to sanction the post of Headmaster in the Upper Primary Section functioned based on Ext.P1, and disburse the salary that is due to the 1st petitioner for the period he discharged the duty of Headmaster, the extent of which is a matter for the respondents to ascertain. Ext.P10, to the extent the request of WPC No. 35182/07 :6 : the petitioner for wages is rejected, is quashed. It is directed that this process shall be completed, as expeditiously as possible, at any rate within 2 months of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp