IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).No. 566 of 2011(U) ----------------------------------- PETITIONER: ------------------- V.P.NAZEEMA, W/O.USMAN, AGED 36 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, S.N.T.T.I., CHERUTHURUTHY, THRISSUR DISTRICT. BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT-680 003. 3. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT-680 506. 4. THE MANAGER, S.N.T.T.I, CHERUTHURUTHY, THRISSUR DISTRICT-679 531. R1 TO R3 BY GOVERNMENT PLEADER SMT. NISHA BOSE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. T.R.RAMACHANDRAN NAIR, J. ------------------------------- W.P.(C).No.566 of 2011 ------------------------------- Dated this the 4th day of February, 2011. J U D G M E N T The petitioner was appointed as Upper Primary School Assistant from 17.8.2009 against a regular vacancy. The appointment was approved from the said date to 31.3.2010 on daily wage basis and from 1.6.2010 on regular basis in terms of G.O.(Ms.)No.104/2008/G.Edn. dated 10.6.2008, as per Ext.P2 order. 2. The said government order was under challenge before this Court and the Division Bench of this Court in Unni Narayanan V. State of Kerala (2009(2) KLT 604) wherein it was held that, “.... The offending conditions in Ext.P-2 Government Order (G.O.(P) No.104/2008/G.Edn. dated 10-6-2008) cannot stand with statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as Rules are not amended, Ext.P-2 cannot be pressed into service by the Government.Sub-r.(3) of R.7-A speaks of vacancies, the duration 2 W.P.(C).No.566 of 2011 of which is less than one academic year. ...” 3. In the light of the above the petitioner contends that the appointment is liable to approved on regular basis for the whole period. 4. Learned Government Pleader submitted Special Leave Petitions have already been filed challenging the said judgment and the same is pending before the Apex Court. It is therefore prayed that the approval can wait till the final decision is taken by the Apex court in the matter. 5. The learned counsel for petitioner relied upon various judgments of this Court which are produced as Exts.P4 to P8. This Court directed therein that the judgment of the Division Bench will be implemented and the approval can be granted on condition that the parties will submit an undertaking to the effect that in the event of the Special Leave Petitions being allowed, the amount drawn as salary will be reimbursed to the Government. 6. Therefore the said method can be adopted herein also. 3 W.P.(C).No.566 of 2011 The writ petition is therefore allowed. Exts.P1 and P2 to the extent to which the appointment of the petitioner is approved on daily wage basis from 17.8.2009 to 31.3.2010 are quashed. There will be a direction to the third respondent District Educational Officer, Chavakkad to approve the appointment of the petitioner as UPSA from 17.8.2009 onwards, on the petitioner submitting an undertaking that in the event of Special Leave Petitions being allowed, ie., the SLP is challenging the decision of the Division Bench in Unni Narayanan V. State of Kerala (2009(2) KLT 604), the petitioner will reimburse to the Government, the monetary benefits granted for the said period on regular basis. Such orders will be passed within 6 weeks of the date of submission of the undertaking by the petitioner. The writ petition is allowed as above. No costs. T.R.RAMACHANDRAN NAIR, Judge ami/