IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 WP(C).No. 15404 of 2009(U) ------------------------------------- PETITIONER(S): ---------------------- JAYAPRAKASH.P.S., UPSA, MAR CLEMIS UP SCHOOL, VADAPURAM, MALAPPURAM DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENT(S): -------------------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, NILAMBUR, MALAPPURAM DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15404/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 1.6.07 OF THE MANAGER ALONG WITH ENDT. NO . K.DIS/F2763/07 DTD. 27.11.2007 OF THE AEO. P2:- COPY OF THE ORDER DT.D 1.6.07 OF THE MANAGER ALONG WITH ENDT. NO.K.DIS/F/2764/07 DTD. 4.12.2007 OF AEO. P3:- COPY OF THE LETTER NO.F/3299/08 DT.D 24.2.09 OF AEO. P4:- COPY OF THE LETTER NO.F/08 DT.22.7.08 OF 3RD RESPONDENT ALONG WITH THE EXTRACT OF THE AUDIT OBJECTION. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A.TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15404/2009-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of February, 2011 J U D G M E N T Aggrieved by Ext.P3 Audit Objection with regard to disbursement of salary, the petitioner has filed this writ petition. 2. The petitioner is a Graduate in B.Ed. who was initially appointed in the MCUP School in the year 1999 as U.P.S.A. From 15/07/1999 to 14/07/2005 the petitioner worked in the school and consequent on the division fall, he was retrenched from service on 14/07/2005. The next vacancy arose in the school on 01/06/2007 when the then Headmaster retired from service. One Smt.Suseela N.R., U.P.S.A was promoted as Headmistress against the retirement vacancy and the Manager appointed petitioner against the resultant vacancy of U.P.S.A on 01/06/2007. The approval of promotion of Smt.Suseela N.R as Headmistress and the approval of appointment of the petitioner as U.P.S.A. were granted by the Assistant Educational Officer and copy of the orders are marked as Exts.P1 and P2 W.P.(C). No.15404/2009 -:2:- respectively. Smt.Suseela N.R retired from service on 30/04/2008 and the Manager appointed another Headmistress in her place. An audit objection was raised stating that Smt.Susheela N.R was not qualified and as per Ext.P3 the Deputy Director of Education directed recovery as against the petitioner, who was appointed in the resultant vacancy, for the salary and allowances paid and also directed to withhold his salary till the audit objection is removed. Ext.P4 is the copy of the audit report. 3. The third respondent has filed a counter affidavit. It is pointed out in the counter affidavit that the petitioner is qualified for the post of U.P.S.A and he is a claimant under Rule 51A of Chapter XIV A Kerala Education Rules. In paragraph (7) it is stated that on the retirement of Smt.N.R.Susheela another teacher, namely, Smt.Leelamani K. was appointed as Headmistress and the said appointment has been approved from 01/06/2008. In the resultant vacancy a protected teacher, namely, Smt.Sulatha Bai, Junior Language Teacher (Sanskrit) has also been appointed. W.P.(C). No.15404/2009 -:3:- 4. It is evident from Ext.P4 audit note that the objection with regard to the promotion of Smt.Susheela N.R is that she is not having B.Ed or T.T.C. 5. The learned counsel for the petitioner mainly submitted that the petitioner's promotion as well as Smt.Susheela N.R's promotion have been approved and, therefore, there cannot be any objection for disbursement of salary. It is admitted that the petitioner is only getting the minimum scale of pay from 2009 onwards. 6. The learned Government Pleader submitted that if the objection of the audit is upheld, then the petitioner will not be entitled for approval of the appointment from 01/06/2007 and the petitioner will have to be regularised only in the resultant vacancy consequent on the retirement of Smt.Susheela N.R. 7. The learned counsel for the petitioner submitted that at least from 01/06/2008 there will be a regular vacancy consequent on the retirement of Smt. Susheela N.R to which the petitioner can be adjusted W.P.(C). No.15404/2009 -:4:- and, therefore, the approval can be regularised accordingly. 8. One of the points raised by the learned counsel for the petitioner is that the petitioner has been receiving salary as U.P.S.A consequent on approval of Ext.P2 appointment order and the petitioner has been working in that post, and there cannot be any recovery at this distance of time. It is also submitted that there is no double payment also. Since the appointment of the petitioner was approved and the petitioner has worked in the said post, there cannot be any illegality in sanctioning the pay admissible to the post along with the allowances. Therefore, the recovery as such ordered as per Ext.P3 cannot be sustained since it is well settled that even if the appointment/promotion has been subsequently held irregular, the person who has been appointed/promoted and who has worked in the post in question will have to be paid salary. Therefore, Ext.P3 to that extent is quashed. 9. There will be a direction to the competent authority to consider the objection raised in Ext.P4 W.P.(C). No.15404/2009 -:5:- and pass appropriate orders. The petitioner will have to be granted approval from 01/06/2008 consequent on the retirement of the then Headmistress Smt. Susheela N.R. Orders to the above effect will be passed within a period of one month from the date of receipt of a copy of this Judgment. The pay and other benefits of the petitioner will also be refixed accordingly. The writ petition is allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms