IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WA.No. 2375 of 2005() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.2023/1998 Dated 24/06/2005 .................... APPELLANT/ 2ND RESPONDENT IN THE OP ------------------- THE MANAGER, THADIKKAD HIGH SCHOOL, THADIKKAD P.O., ANCHAL (VIA), KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.K.V.ANIL KUMAR SMT.THARA THAMBAN RESPONDENTS/ PETITIONR & RESPONDENT 1, 3 & 4 IN THE OP ------------------------ 1. D.KAMALAMMA, RETIRED HEADMISTRESS "AJAYA BHAVAN", ALAYAMON P.O., (VIA) ANCHAL, KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR(EDUCATION), KOLLAM. 4. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR. ADV. SRI.K.R.KURUP FOR R1 GOVERNMENT PLEADER, SMT.R.BINDU SRI.C.R.SYAMKUMAR FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. --------------------------------- W.A.No.2375 OF 2005 ---------------------------------- Dated this the 19th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The 2nd respondent, who is the Manager of a High School, in which, the writ petitioner was working as Headmistress, is the appellant. 2. The brief facts of the case are the following: The writ petitioner was the seniormost High School Assistant in the appellant's school. A vacancy of Headmaster arose in that School on 20.7.1991. As on that date, no one among the High School Assistants was qualified. The appellant herein appointed a teacher from another school belonging to another educational agency as Headmaster in that vacancy. Though initially, the appointment was approved by the D.E.O., the same was cancelled by the said Officer himself. The appellant submits, subsequently, he appointed a Physical Education Teacher as Headmaster. The said appointment was withdrawn by himself. Later, he brought in a protected teacher W.A.No.2375/2005 2 as the Headmaster, but the said appointment was also not approved by the authorities. After a long drawn out legal battle, the writ petitioner was appointed as Headmistress on 30.9.1996 with effect from 1.6.1992, the date on which she became qualified for the appointment as Headmistress on attaining the age of 50 years. Though her appointment was approved with effect from 1.6.1992, she was paid emoluments only from 30.9.1996. Challenging the said orders of the authorities, Exts.P6 and P8, this writ petition was filed, to the extent they declined backwages to her. She also sought a mandamus to the respondents 3 and 4 to pay her, entire arrears of salary from 1.6.1992. 3. The learned Single Judge found that the writ petitioner was wrongly denied appointment by the Manager from 1.6.1992 and therefore, she is entitled to get all service benefits, including arrears of salary, from the the said date. Because of the actions of the Manager, the writ petitioner suffered loss. So, the Government was directed to make good the loss. The learned Single Judge simultaneously ordered that W.A.No.2375/2005 3 the Government can recover the said amount paid by it towards the arrears of salary between 1.6.1992 and 30.9.1996 from the appellant. The writ petition was allowed with the above directions with costs, which was quantified as Rs.5,000/-. Feeling aggrieved by the above directions in the judgment of the learned Single Judge, this writ appeal is filed. 4. The learned counsel for the appellant submitted that the notice in the writ petition was never served on her. Therefore, she could not appear or contest the matter. The learned counsel also submitted that there was no prayer in the writ petition to make recovery under Rule 7 of Chapter III of the K.E.R. It is also pointed out that the Government did not suffer any loss. Therefore, the recovery is not permissible. 5. The judicial decisions, which are taken objectively, need not be interfered with on the technical plea of lack of hearing or notice, unless the aggrieved person has got a case on merit. Though the learned Single Judge did not hear the appellant, we heard him, elaborately, through his counsel. We W.A.No.2375/2005 4 are of the view that the claim of the writ petitioner for salary for the period she was denied appointment, that is, from 1.6.1992 to 30.9.1996, was genuine. The Manager by Ext.P6 order appointed the writ petitioner as Headmistress, of his School from 1.6.1992, on 30.9.1996. When salary was fixed, pursuant to her appointment, by Ext.P8 by the District Educational Officer, she was paid arrears of salary only from 30.9.1996. The right of the writ petitioner to get appointment from 1.6.1992 is undisputed and the Manger also cannot dispute her right in this regard now, as he is bound by his own appointment order by Ext.P6, which he was compelled to issue after a long drawn out legal battle. It is not in dispute that the writ petitioner lost arrears of salary from 1.6.1992 to 30.9.1996 by the action of the Manager. 6. The learned Single Judge found that the writ petitioner is entitled to get salary for the said period also, as she was wrongly denied appointment. We fully agree with the said finding of the learned Single Judge. Then the question arises, who is liable to bear the burden. The learned Single Judge found that the Manager alone was responsible for the loss and W.A.No.2375/2005 5 therefore, ordered the Government to pay arrears of the salary and permitted it to recover the same from the Manager. We find nothing wrong with the said direction. This Court need not fall back on the provisions of the Rule 7 of Chapter III of the K.E.R. to pass such an order. Going by the prayers in the writ petition also, grant of such a relief was fully justified. Further, when this Court is ordering the Manager to pay some amount to the teacher, it is not concerned whether the Government have suffered any loss or not. Essentially, that was what the learned Single Judge did. But, to enable the teacher to get the amount without delay, it was ordered that the amount shall be paid at the first instance by the Government and the Government can recover it from the Manager. 7. The learned counsel for the appellant relied on a judgment of the Division Bench of this Court in W.A.No.1554/1997 in support of his submissions. Special reference was made to paragraph 9 of the judgment. The observations made by the Division Bench on the facts of the case that the Assistant Educational Officer cannot unilaterally decide W.A.No.2375/2005 6 that there is loss and also compute the same, have no application to the facts of this case. But, in this case, when the Government recovers the amount as permitted by the learned Single Judge from the petitioner, if there is any mistake in the computation, the appellant can always workout his remedy. We find no merit in the appeal and accordingly it is dismissed. The learned counsel for the appellant prayed that the direction of the learned Single Judge to pay costs may be vacated. But, it is a direction issued within the discretion of the learned Single Judge. Unless the exercise of discretion is found to be perverse, the appellate court is not justified in interfering with the same. Having regard to the facts of the case, we feel that the principle that costs should follow the event is applicable here. So, the said payer of the appellant is declined. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps