IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 12141 of 2009(K) -------------------------------- PETITIONER: -------------- GEETHAKUMARI.S, W/O. HAREESH.K, PUTHUPPURACKAL PONNEZHA, THEKKEKARA.P.O, MAVELIKKARA (HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), NAIR SAMAJAM BOY'S HIGH SCHOOL, MANNAR) BY MR.S.SUBHASH CHAND, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 1. 3. DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA. 4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 5. MANAGER, NAIR SAMAJAM SCHOOLS, MANNAR, MAVELIKKARA, ALAPPUZHA. BY MR. T.T. MUHAMOOD, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.12141/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER DTD. 7.11.05 ISSUED BY R5 AND ORDER OF APPROVAL DTD. 30.12.2005 OF R4 ENDORSED UPON THE SAME. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 14.11.2005 APPOINTING THE PETITIONER AS UPSA IN REGULAR PROMOTION VACANCY OF SMT. SREELEKHA G. NAIR. EXT. P3 : COPY OF STAFF FIXATION ORDER DTD. 12.7.05 ISSUED BY R4 FOR THE ACADEMIC YEAR 2005-06 FOR NAIR SAMAJAM HIGH SCHOOL FOR BOYS, MANNAR. EXT. P4 : COPY OF ORDER DTD. 2.6.08 ISSUED BY R5 AND ORDER OF APPROVAL ENDORSED ON THE SAME BY R4. EXT. P5 : COPY OF COMMUNICATION ISSUED BY R4 TO HM OF THE SCHOOL DTD. 26.5.07. EXT. P6 : COPY OF GOVERNMENT ORDER BEARING G.O.(P) No.169/04/G.Edn DTD. 15.6.04. EXT. P7 : COPY OF GOVERNMENT ORDER BEARING G.O.(Rt) No.4286/2008/G.Edn DTD. 25.9.08. EXT. P8 : COPY OF GOVERNMENT ORDER BEARING G.O.(Rt) No. 1532/2006/G.Edn DTD. 17.4.06. EXT. P9 : COPY OF GOVERNMENT ORDER BEARING G.O.(Rt) No.3534/06/G.Edn DTD. 10.8.06. EXT. P10 : COPY OF GOVERNMENT LETTER BEARING No.14002/42/06/G.Edn DTD. 5.4.06 ISSUED BY R1 TO R3. EXT. P11 : COPY OF COMMUNICATION DTD. 16.9.08 ISSUED BY R1 TO R4 AND ORDER DTD. 24.10.08 OF R4 WHICH WAS ENDORSED ON THE SAID COMMUNICATION. EXT. P12 : COPY OF REVIEW PETITION DTD. 12.12.08 SUBMITTED BY PETITIONER BEFORE R1. EXT. P12(a) : COPY OF ORDER DTD. 30.01.09 ISSUED BY R1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.12141 OF 2009 --------------------------------------- Dated this the 16th day of June, 2009. J U D G M E N T The subject matter of the dispute is covered in favour of the petitioner in the light of the decision of a Division Bench of this Court in K.Unni Narayanan vs. State of Kerala (2009(2) KLT 604). The petitioner is presently working as High School Assistant in the school managed by the 5th respondent. It is submitted that One Savithridevi P.R., H.S.A (Physical Science) of the school expired on 05.11.2005. In the said vacancy, the Manager promoted and appointed one Sreelekha J. Nair, senior most UPSA as per order dated 07.11.2005 and the said appointment was approved as evidenced by Exhibit P1. In the said promotion vacancy of Sreelekha J.Nair, the petitioner was appointed as UPSA with effect from 14.11.2005. The said appointment was approved as per Exhibit P2. The petitioner has produced Exhibit P3 to show that these were sanctioned posts. The petitioner was later promoted as H.S.A (Natural Science) W.P.(C) No.12141/2009 2 with effect from 02.06.2008. That was also approved as per Exhibit P4. 2. In the audit conducted by the Deputy Director of Education of the office of District Educational Officer, Mavelikkara for the period from 01.04.2005 to 31.03.2006, objections were raised regarding the appointment of the petitioner. The objections appear to be that the approval has been granted in violation of paragraph 6 of G.O.(P) No.169/2004 dated 15.06.2004. Accordingly, a direction was issued as per Exhibit P5 treating the appointment of the petitioner from 14.11.2005 till 31.03.2006 as on daily wage basis. There is a further direction to refund the excess salary drawn by her. 3. Exhibit P6 is the Government Order that is under challenge in this writ petition. Paragraph 6 of Exhibit P6 provided that “......the claim for re-appointment under rule 51A of the KER will be limited to those who have been appointed against regular/leave vacancies having a duration of not less than one academic year. The vacancies having duration of less than one academic year will be filled up on daily wage basis”. W.P.(C) No.12141/2009 3 4. The petitioner has produced Exhibits P7 to P10 in support of the plea that the Government has allowed the grant of approval if appointment is made in a regular vacancy exceeding a period of one year. The matter is now covered by the decision of a Division Bench in K.Unni Narayanan vs. State of Kerala (2009(2) KLT 604). There the Bench considered the challenge against the Government Order dated 10.06.2008. In paragraph 7 of the said judgment, it has been held that the Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Exhibit P2 cannot be pressed into service by the Government. Finally, in paragraph 12, the following directions were issued: “In the case of the writ petitioners in these cases, orders, if any passed, approving their appointments on daily wage basis, relying on Ext.P2 Government Order are quashed. All appointments, whether pending approval or already rejected, shall be considered/reconsidered by the Educational Officers concerned and fresh orders shall be passed in the light of the declaration of law made by us in W.P.(C) No.25176 of 2008. The salary found due to W.P.(C) No.12141/2009 4 be paid to the incumbents concerned shall be released immediately. The action in this regard shall be completed within six weeks from the date of production of a copy of this judgment”. In the light of the dictum laid down by the Division Bench, the objections raised by the audit as regards the approval of the appointments of the petitioner cannot be sustained. Therefore, Exhibits P5, P11 and P12(a) will stand quashed. The approval of the appointment of the petitioner granted as per Exhibits P2 and P4 will therefore be valid, and no recovery of salary can therefore be made. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp