IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 AS.No. 108 of 1998() -------------------- OS.79/1995 of PRL.S.C.,THALASSERY .................... APPELLANTS/DEFENDANTS 1 & 2: ------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KANNUR. 2. THE ASSISTANT EDUCATIONAL OFFICER, PANOOR, THALASSERY TALUK, KANNUR DIST. BY GOVERNMENT PLEADER SHRI. N.K. THANKACHAN RESPONDENTS/PLAINTIFF & DEFENDANT NO.3: ------------------------------------------------------------------- 1. SMT. SAHINA VADAKARAPOYIL W/O. SALAHUDEEN, TEACHER, RESIDING AT VADAKARAPOYIL, P.O. ELANGOD, PANOOR AMSOM, ELANGOD DESOM, THALASSERY TALUK, KANNUR DIST. 2. THE HEADMISTRESS, PANOOR U.P. SCHOOL, PANOOR P.O., PANOOR AMSOM DESOM, THALASSERY TALUK, KANNUR DIST. R1 BY ADV. SRI.T.A.SHAJI R2 BY ADV. SRI.E.V.NAYANAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON 06/10/2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 108 of 1998 - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2009 JUDGMENT This appeal is filed by defendants 1 and 2 in O.S. No. 79 of 1995 on the file of the Sub Court, Thalassery. Respondents 1 and 2 herein are the plaintiff and the third defendant in that suit. 2. The first respondent/plaintiff filed the suit for a declaration to the effect that the action and conduct of the second defendant in causing delay in passing the order of approval of appointment of the plaintiff and passing her salary bill for 10 months and revised salary bill for 7 months are illegal. It is also submitted that the orders passed to refund the leave salary and to cancel the maternity leave are also illegal and void. The plaintiff, therefore, sought a decree to direct the defendants to give A.S.No. 108 of 1998 2 the plaintiff a sum of Rs.27,264/- with 12% interest as damages. 3. The case of the plaintiff is that she was appointed as Urdu Teacher in the Panoor U.P. School in a leave vacancy and that she joined duty in the forenoon of 18.8.1992. Though all necessary requirements were complied with, the defendants refused to approve the appointment of the plaintiff. Eventhough the plaintiff requested the second defendant to pass necessary orders, the appointment was approved only on 11.2.1993. 4. The further case of the plaintiff is that even after the approval of her appointment, the second defendant did not sanction her pay bill for another period of six months. While the plaintiff was working in the said post, she entered on maternity leave and the leave was also sanctioned by order dt. 2.6.1993. But after several months, the second defendant issued another order dt.16.7.1994 to the effect that the plaintiff is not eligible for maternity leave, which was previously granted and A.S.No. 108 of 1998 3 accordingly the second defendant caused recovery of Rs.6,017/- from the salary arrears, towards the salary drawn during the maternity leave. The plaintiff also submitted that the denial of adhoc bonus to her for the period 1993 - 94 is illegal. 5. Defendants 1 and 2 filed a joint written statement contending that the suit is bad for want of Section 80 notice as contemplated under the Civil Procedure Code. It is submitted that the proposal for approval of appointment of the plaintiff was incorrect and incomplete. Therefore, the second defendant by letters dt. 16.10.1992 and 24.10.1992 directed the Manager/ Headmaster to rectify the defects in the appointment order and the defects were rectified only on 11.12.1992 and appointment was approved on 12.1.1993. Therefore there is no delay in issuing the order approving the appointment. 6. It is further contended that as per the rules, the Headmaster is the authority to prepare and present salary bills of the employees working under his control and the delay caused in A.S.No. 108 of 1998 4 sanctioning the salary bill is not on the part of the defendants. Regarding the maternity leave availed by the plaintiff, the defendants 1 and 2 contended that the same was erroneously granted by the second defendant and the same was cancelled and the amount which was already paid to the plaintiff was ordered to be refunded. 7. In the Sub Court PW1 and DW1 were examined and Exts.A1 to A52 and B1 to B7 were marked. The learned Sub Judge, on considering the evidence, decreed the suit as follows: “In the result, the plaintiff is granted a decre declaring that the action and conduct of 2nd defendant in causing delay in passing order of approval of the plaintiff's appointment and passing her salary bill for 10 months and revised salary bill for 7 months are illegal, without authority, malafide and hence void; that the order No.2784/94 dated 16.7.94 ordering refund of leave salary No.4720/94 dated 19.8.94 cancelling the maternity leave A.S.No. 108 of 1998 5 previously granted and No.6004/94 dated 28.10.94 denying adhoc bonus to the plaintiff passed by the 2nd defendant are illegal, without authority, malafide and hence void, and defendants 1 and 2 are liable to pay a sum of Rs.10,900/- with interest at the rate of 12% per annum from the date of the suit till realisation with costs of the suit to the plaintiff. 3rd defendant is not liable to pay any amount of decree.” Against that judgment, defendants 1 and 2 filed this appeal. 8. Heard the learned counsel for the appellants and the learned counsel for the first respondent. 9. The learned counsel for the appellants submitted that the present suit is not maintainable in view of Section 32 of the Kerala Education Act, which reads as follows: S.32. Indemnity - No suit, prosecution or other legal proceedings shall lie against the Government or any authority or any officer for anything done under this Act in good faith or for A.S.No. 108 of 1998 6 any damage caused by any action taken in good faith in carrying out the provisions of this Act or the rules thereunder.” 10. The present suit is actually for realisation of service benefits wrongfully denied to the plaintiff and as such I am of the view that the suit is not barred under Section 32 of the Kerala Education Act. It is an admitted fact that the plaintiff was appointed as Urdu Teacher in the Panoor U.P. School against a leave vacancy for the period from 18.8.1992 to 31.1.1997 and the same was approved by the second defendant as per order dt. 12.1.1993. Ext.B1 file shows that the proposal for appointment of the plaintiff was incorrect and incomplete and therefore the second defendant by letters dt. 16.10.1992 and 24.10.1992 asked the Headmaster to rectify the defects in the appointment order and the defects were rectified only on 11.12.1992 and the appointment was approved on 12.1.1993. Therefore, there is no much delay on the part of the second A.S.No. 108 of 1998 7 defendant in issuing the order of approval of appointment. Therefore, the learned Sub Judge is not justified in awarding compensation of Rs.100/- to the plaintiff for the delay of 10 months for the approval of her appointment. 11. There is also no dispute that the second defendant caused recovery of Rs.6,017/- from the salary arrears of the plaintiff drawn during her maternity leave. Section IX Rule 100 of the K.S.R. deals with maternity leave. According to Section 100, a competent authority may grant to a female officer, maternity leave on full pay for a period of 90 days from the date of its commencement. The note 4 to Rule 100 contemplates that maternity leave under this rule and Rule 101 shall be admissible to provisional female recruits continuing in service beyond one year, provided they would continue in service but for proceeding on such leave. This amendment shall be deemed to have come into force with effect from 2.7.1969 (G.O.(P) No. 825/80/Fin A.S.No. 108 of 1998 8 dt.31.10.80). The note 4 to Rule 100 of K.S.R. entitles the plaintiff to get maternity leave. 12. In view of the above rule, the plaintiff is entitled to get Rs.6,017/- as maternity leave salary. The learned Sub Judge is justified in granting Rs.1,600/- as adhoc bonus as the plaintiff was not a contract employee. The compensation awarded by the learned Sub Judge under various other heads is not sustainable as there is no wilful laches on the part of defendants 1 and 2 in sanctioning the service benefits to the plaintiff. 13. The learned counsel for the appellants and the first respondent submit that the declaration granted by the learned Sub Judge is not necessary in view of the facts and circumstances of the case. Considering the nature of the claim, I am of the view that the plaintiff is entitled to get interest at the rate of 6% p.a. only instead of 12% granted by the learned Sub Judge. A.S.No. 108 of 1998 9 14. Accordingly this appeal is allowed in part. The judgment and decree in O.S.No. 79 of 1995 on the file of the Sub Court, Thalassery is modified and the plaintiff is allowed to realise a sum of Rs.7,617/- together with interest at the rate of 6% p.a. on the above sum from the date of the suit till the date of realisation and proportionate cost from defendants 1 and 2. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm