IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 WP(C).No. 29384 of 2006(W) -------------------------- PETITIONER(S): --------------- T.J. SOPHIAMMA, SEWING TEACHER, ST.JOSEPH'S HIGH SCHOOL, ADAKKATHODE, KANNUR DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. 4. THE CORPORATE MANAGER, DIOCESE OF MANANTHAWAY, (THE MANGER, ST.JOSEPH'S HIGH SCHOOL ADAKKATHODE). ADV. SRI.V.M.KURIAN FOR R4 SRI.MATHEW B. KURIAN FOR R4 SRI.K.T.THOMAS FOR R4 GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29384/2006 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER IN GO R5 2785/90/GE DT.1/10/91 OF THE 1ST RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER IN GO RT 3504/91/GE DT.22/11/91 OF THE 1ST RESPONDENT. EXT.P3 TRUE COPY OF THE PROCEEDINGS NO.K.DIS 16236/91 DT.13/03/1992 EXT.P4 TRUE COPY OF THE REPRESENTATION DT.26/03/92 EXT.P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DT.16/05/92 EXT.P6 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT NO.24140/R2/92/02 DT.20/04/1995 EXT.P7 TRUE COPY OF ORDER NO.37253/K2/97/G.EDN. DT.7/11/97 EXT.P8 TRUE COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT TO THE HEADMASTER DT.8/12/1997 EXT.P9 TRUE COPY OF THE STATEMENT FILED BY THE 3RD RESPONDENT IN OP NO.4348/98 EXT.P10 TRUE COPY OF THE JUDGMENT IN OP 4348/98 DT.7/7/05 EXT.P11 TRUE COPY OF THE ACKNOWLEDGEMENT CARD EXT.P12 TRUE COPY OF THE ORDER IN GO RT NO.4050/2006/G.EDN. DT.19/09/2006 EXT.P13 TRUE COPY OF THE GO RT NO.4929/2006/G.EDN., DT.14/11/2006 EXT.P14 TRUE COPY OF THE RELEVANT PAGE OF TEACHERS ATTENDANCE REGISTER FOR THE MONTH OF SEPT.89 OF ST.JOSEPH'S HIGH SCHOOL, ADAKKATHODE RESPONDENTS' EXTS: NIL. \\True copy// P.A to Judge T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29384/2006-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20th day of December, 2011 J U D G M E N T The prayer of the petitioner is for payment of salary for the period from 21/09/1989 to 30/03/1992 during which period she was working as a Sewing Teacher. The final order passed by the Government as per Ext.P12 is under challenge in this writ petition. 2. The necessary facts for the disposal of the writ petition are the following:- The petitioner was appointed as Sewing Teacher with effect from 31/07/1986. In the staff fixation order for the year 1986-87, the post was not sanctioned and by Ext.P1 order passed by the Government dated 01/10/1991, the post was sanctioned for the year 1986- 87 with a direction to approve the appointment of the petitioner. Ext.P2 is a further order passed by the Government dated 22/11/1991, on the request for continuance of the post of Sewing Teacher. Therein, the Government ordered that the post of Sewing Teacher in St.Joseph's High School, Adakkathode be sanctioned W.P.(C). No.29384/2006 -:2:- with effect from 1987-88 onwards and the appointment of the petitioner against the above post be approved if it is otherwise in order. 3. The said appointment has been approved as evident from Ext.P3, by the District Educational Officer, in modification of the earlier orders. 4. With regard to the period between 21/09/1989 to 30/03/1992, the petitioner's case is that going by the approval orders granted, the petitioner is entitled for payment of salary as the petitioner was working for the said period. Even though, permission was sought, Government refused to grant permission by Ext.P6 and the reason stated therein is that there is no documentary evidence to show that the petitioner had actually worked in the said school for that period. 5. The salary for earlier periods and subsequent periods have been claimed by the petitioner and even sanctioned. With regard to the disputed period, the case of the petitioner is that the Manager of the school gave instruction to the Headmaster not to permit the petitioner to mark the attendance in the register W.P.(C). No.29384/2006 -:3:- on the ground that there is no sanctioned post in the school. It is pointed out that the said direction by the Manager was not legal, since the petitioner was pursuing the remedy before the Government for getting the sanction and approval. It is her further case that she was attending the school and was marking attendance separately, authenticated by her fellow teachers. This controversy was considered by this Court in an earlier Judgment in Ext.P10 wherein, this Court directed the Government to reconsider the matter in the light of the submission made by the petitioner that the documents were available with the District Educational Officer to show that she was actually attending the school and discharging her duties as a teacher. 6. Heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the Manager. 7. A reading of Ext.P12 order shows that the petitioner alleged that she was not permitted to mark attendance by the then Headmaster, and she was informed that it was as per the directions of the Manager, as W.P.(C). No.29384/2006 -:4:- per his Memo No.318/89 dated 16/09/1989. But, before the Government, the representative of the Manager informed that they were not aware of the said direction to the Headmaster. It is mentioned in para.4 of Ext.P12 order that the District Educational Officer had informed that, the report of the then Headmaster of the school, as regards the attendance of the teacher, for the period from 21/09/1989 to 30/03/1992, was seen genuine on verification by him, and the attendance statement was seen authenticated by the fellow teachers. But, the Government felt that the separate attendance register personally maintained by the petitioner teacher, as her own in which she marked attendance, without being acknowledged by any superior, cannot be taken as a corroborative proof in support of her claim that she had actually worked. 8. In fact, the Government passed a subsequent order Ext.P13 to regularise the period of absence for the period from 21/09/1989 to 30/03/1992 by treating as 'non-duty' without forfeiture of past service. W.P.(C). No.29384/2006 -:5:- 9. In the statement filed by the Manager, in this writ petition, it is averred in para.5 as follows:- “The allegation that the petitioner was not permitted to mark attendance by the Headmaster based on memo issued by the Manager is not correct. The Manager has not issued any memo to the Headmaster preventing the petitioner from marking attendance.” 10. The learned counsel for the petitioner relied upon the averments in the statement filed by the District Educational Officer in O.P.No.4348/1998, a copy of which is produced herein as Ext.P9, wherein in para.4 it is mentioned that the Headmaster has made an entry in the attendance register against the name of Smt.Sophiamma that she has discontinued as per Memo No.318/89 dated 16/09/1989 of the Corporate Manager, Mananthavady. It is further pointed out that the Corporate Manager has no authority to terminate the service of the petitioner and there is no disciplinary action also. In para.8, the District Educational Officer has stated thus:- W.P.(C). No.29384/2006 -:6:- “The teacher had personally maintained a separate attendance sheet as her own and marked attendance in it. The report of the then Headmaster regarding the attendance of the teacher for the period under reference (21/09/1989 to 31/03/1992) in the school has been proved genuine on verification of the above attendance sheet produced in the office of the District Educational Officer, Thalassery which was authenticated by the fellow workers of the petitioner. The leave applied for should be sanctioned by the approved Headmaster if it is otherwise in order. But, the request of the petitioner to sanction Half Pay Leave for the period from 21/01/1991 to 20/03/1991 was turned down by the Headmaster for the petitioner was not on the rolls, maintained in the school. The petitioner is stated to have submitted fresh representation stating that she has actually attended the school and marked attendance in the separate sheet maintained for it, in her petition dated 14/12/1996.” 11. The learned counsel for the Manager has filed a statement, and the learned counsel for the petitioner W.P.(C). No.29384/2006 -:7:- has filed a reply affidavit to the statement, wherein the copy of the attendance sheet for the month of September 1989 has been produced as Ext.P14. Therein, there is an endorsement against the name of the petitioner as follows:- “Discontinued as per memo No.318/89 dated 16/09/1989 of the Corporate Manager, Mananthavadi.” Therefore, the learned counsel for the petitioner argued that it is not a case where the petitioner failed to attend the school but there was a memo by the Manager to the Headmaster which compelled the petitioner to mark the attendance separately. 12. The learned counsel for the Manager has thereafter filed a counter affidavit. In the counter affidavit filed by the Manager in para.4 it is stated as follows: “.....The then Manager had issued memo to the Headmaster not to permit the petitioner to work in the school or to sign in the attendance register as there was no sanctioned post to accommodate the petitioner.” W.P.(C). No.29384/2006 -:8:- Ext.R4(a) is the copy of the memo dated 16/09/1989 and Ext.R4(b) is the copy of the reply furnished by the Headmaster. 13. Therefore, the question is whether there was any failure on the part of the petitioner to perform the duties during the crucial period. Evidently, there was a memo as per Ext.R4(a), which was the stand taken by the petitioner before the Government. But the Government did not accept the plea on the ground that the memo itself was not available at the time of hearing. Therefore, the Government was of the view that the attendance register personally maintained by the petitioner cannot be accepted. Going by the averments of the District Educational Officer in Ext.P9 as well as the in counter affidavit filed by the Government in this writ petition, it can be seen that the Headmaster had reported that the petitioner was marking attendance separately. To claim salary, the petitioner will have to prove that she was actually attending school. Justification sought for by the Manager is that there was no sanctioned post at that W.P.(C). No.29384/2006 -:9:- time. Sanction was issued later, as evident from Exts.P1 to P3. With regard to the claim for sanction of the post, the petitioner was pursuing the matter during that period also. Therefore, it was not as if the petitioner was not attending the school as evident from the statement filed by the District Educational Officer in O.P.No.4348/1998, produced as Ext.P9. In the counter affidavit filed before this Court by the first respondent, it is stated in para.11 as follows: “.......The District Educational Officer, Thalassery had informed that the report of the then Headmaster of the school, as regards the attendance of the teacher, for the period from 21/09/1989 to 30/03/1992, was seen genuine on verification and the attendance statement was seen authenticated by the fellow teachers. ..........” The absence of an attendance register authenticated by a Superior Officer cannot be a ground to deny the claim of the petitioner, since the Superior Officer, the Headmaster was bound by the memo issued by the Manager. In that view of the matter, the view taken by the Government, in Ext.P12, that the period cannot be W.P.(C). No.29384/2006 -:10:- reckoned for salary, cannot be justified. Evidently, the petitioner was working during the said period. Therefore, Exts.P12 and P13, to the extent to which the same declines salary and other benefits to the petitioner for the period from 21/09/1989 to 30/03/1992, are quashed. 14. In the light of the materials available, there will be a declaration that the petitioner will be entitled for service benefits including monetary benefits for the period from 21/09/1989 to 30/03/1992 also. Appropriate orders will be passed by the District Educational Officer sanctioning the various benefits for the said period within a period of three months from the date of receipt of a copy of this Judgment. The writ petition allowed to that extent. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms