IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 20376 of 2010(V) -------------------------- PETITIONER(S): --------------- PRIJI GOPINATH, UPSA, ANANDASRAMAM UPS, CHANGANACHERRY. BY ADV. SRI.RAJIT SRI.P.ANOOP (MULAVANA) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM PIN-686001. 3. ASSISTANT EDUCATIONAL OFFICER, CHANGANACHERRY PIN-686101. 4. GENERAL MANAGER, CORPORATE MANAGEMENT OF SNDP YOGAM SCHOOLS, KOLLAM-691001. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD ADV. SRI.A.N.RAJAN BABU FOR R4 SRI.P.GOPALAKRISHNAN (MVA) FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 20376/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF APPOINTMENT ORDER OF THE PETITIONER. EXT.P2: COPY OF G.O.(Rt) NO.3172/2007/G.EDN. DATED 11.7.2007. EXT.P3: COPY OF CHALAN RECEIPT DATED 13.8.2007. EXT.P4: COPY OF JUDGMENT IN W.A.NO.2417/08. EXT.P5: COPY OF REPRESENTATION DATED 12.9.2007. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.20376 of 2010 --------------------------------------------- Dated this the 28th day of September, 2010 JUDGMENT The petitioner was appointed as UPSA in Anandasramam UP School, Changanacherry from 1.8.2005 onwards as per Ext.P1 order of appointment. The appointment was approved by the Educational Officer. It would appear that later the question arose whether the appointment could be approved in view of the fact that the Manager failed to appoint a protected teacher in the school in accordance with the Government Orders then in force. This led to the filing of Writ Petition No.6033 of 2007 by the petitioner and other teachers working in the same school. It is submitted that the Writ Petition was disposed of and the Government was directed to consider the matter afresh. The Government passed Ext.P2 order dated 11.7.2007. The relevant portion of Ext.P2 order reads as follows : “The first three petitioners are working in Anandasramam UPS, Changanacherry which belongs to the jurisdiction of the Deputy WPC 20376 of 2010 2 Director of Education, Kottayam. The Deputy Director of Education, Kottayam as per the letter read as 4th paper above has reported that a post of UPSA has been set apart in the school for absorbing protected hand from 1997 onwards. It is also reported that one protected teacher viz. Shri.P.Ravikumar, UPSA, R.Sankar Memorial UPS, Kodunga is now working in the school on deployment from 25.8.2003 onwards. Hence, the appointment of the above three petitioners may be approved with effect from 1.2.2006, if they are otherwise eligible as per the provisions of KER. The fourth petitioner is working in MISM UPS, Kannamangalam which belongs to the jurisdiction of the Deputy Director of Education, Malappuram. The Deputy Director of Education, Malappuram as per the letter read as 5th paper above has reported that no protected teacher has been appointed in the school and no post has been set apart for absorbing a protected hand. Therefore, the appointment of 4th petitioner cannot be approved. In the circumstances, the appointments of the petitioners number 1, 2 & 3 are approved WPC 20376 of 2010 3 with effect from 1.2.2006 if they are otherwise eligible as per the provisions of KER and the request of the petitioner number 4 is rejected. Ext.P3 representation is disposed of accordingly.” 2. On the basis of Ext.P2 Government Order, the petitioner was directed to repay the salary drawn by him for the period from 1.8.2005 to 31.1.2006. The petitioner complied with the direction and deposited a sum of Rs.42,200/- as evidenced by Ext.P3. The other two teachers in the same school challenged the direction to deposit the salary drawn by them, in Writ Petition No.31590 of 2008. That Writ Petition was dismissed. The teachers filed W.A.No.2417 of 2008 which was allowed. The Division Bench held, in Ext.P4 judgment, as follows : “While implementing Ext.P5, the Assistant Educational Officer directed the appellants to repay the salary received by them for the earlier spells of their approved service. Left with no other option, the appellants refunded the salary as per Exts.P6 and P7. Challenging WPC 20376 of 2010 4 the proceedings, the copies of which, were never served on them, but, based on which, they were made to refund the salaries received by them, the appellants preferred the Writ Petition. The learned Single Judge dismissed the Writ Petition. Hence, this appeal. On going through Ext.P5, we notice that there was no direction by the Government to cancel the approval of appointment of the earlier spells of service or to get refunded the salary paid to them. The Government only said to approve their appointments from 1.2.2006. So, we asked the learned Government Pleader to state, under what authority, the Assistant Educational Officer compelled the appellants to repay the salary received by them. Thereupon, the second respondent filed a statement, stating that though there was no stipulation in Ext.P5 for recovery of the salary paid to the appellants for the earlier spells of service, the Assistant Educational Officer, on finding that the approval granted being irregular, directed the appellants to repay the salary as a condition for approval of their appointments from 1.2.2006. We notice that without following the due procedure or taking recourse WPC 20376 of 2010 5 to proceedings under any statute, the salary paid to the appellants have been recovered from them. During the earlier spells of appointments, the appellants have actually worked. Their appointments were approved and they received salary also. Therefore, we find that there is no justification for recovering the amount paid to the appellants. In the result, the Writ Appeal is allowed. Respondents 1 and 2 are directed to repay the amount covered by Ext.P6 to the first appellant and the amount covered by Ext.P7, to the second appellant on receipt/production of a copy of this judgment. If the Government have suffered any loss, this direction will not affect the powers, if any, of respondents 1 and 2 to proceed against the Manager of the School in accordance with law to recover any such loss from him.” 3. The petitioner submits that he is also entitled to the same relief which was granted to the other teachers as per Ext.P4 judgment. The reliefs prayed for by the petitioner are the following : WPC 20376 of 2010 6 “(i) allow this Writ Petition and repay the amount illegally recovered from the petitioner as early as possible as per Ext.P3. (ii) direction to third respondent to consider and dispose of Ext.P5 representation. (iii) to grant such other reliefs that may deem fit and proper in the facts and circumstances of the case.” 4. It is submitted by the learned counsel for the petitioner that for the time being, the petitioner would be satisfied, if relief No.(ii) is granted leaving open the other contentions raised by the petitioner. Accordingly, the Writ Petition is disposed of as follows : (i) The Assistant Educational Officer, Changanacherry shall consider and dispose of Ext.P5 representation dated 12.9.2007 submitted by the petitioner, as expeditiously as possible and, at any rate, within a period of two months from the date of receipt of a WPC 20376 of 2010 7 copy of the judgment and after affording an opportunity of being heard to the petitioner. (ii) The third respondent shall take into account Ext.P4 judgment passed by the Division Bench in W.A.No.2417 of 2008 while considering and disposing of Ext.P5 representation. (iii) The petitioner shall produce a copy of the Writ Petition and a certified copy of the judgment before the third respondent. (iv) The contentions raised by the petitioner are left open. K.T.SANKARAN, JUDGE csl