IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WP(C).No. 1312 of 2011(L) ------------------------------ PETITIONER: -------------- VIJEESH C.K. S/O.KOCHUGOVINDAN, UPPER PRIMARY SCHOOL ASSISTANT, CA HIGH SCHOOL,AYAKKAD,AYAKKAD P.O., ALATHUR TALUK PALAKKAD DIST,R/A.ROHINI NIVAS,KALLEPPADAM P.O., PAZHAYANNUR, THRISSUR DISTRICT. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT , GENERAL EDUCATION (B) DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM – 695 001. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM– 695 001. 3. DISTRICT EDUCATIONAL OFFICER, PALAKKAD– 678 001. 4. THE MANAGER, CA HIGH SCHOOL AYAKKAD, AYAKKAD P.O., ALATHUR TALUK, PALAKKAD DISTRICT PIN-678683. 5. SHASA KURIAKOSE, UPPER PRIMARY SCHOOL ASSISTANT (UNAPPROVED) CA HIGH SCHOOL AYAKKAD, AYAKKAD P.O., ALATHUR TALUK, PALAKKAD DISTRICT PIN-678683. BY ADV. SRI.V.A.MUHAMMED FOR R5 SRI.K.E.HAMZA FOR R5 SMT. RANI DIOTHIMA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1312/2011 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER OF PETITIONER DTD. 25.10.05 AS UPSA IN CA HIGH SCHOOL, AYAKKAD. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 5.6.06 ISSUED BY R4. EXT. P3 : COPY OF ORDER DTD. 4.6.07 ISSUED BY R3. EXT. P4 : COPY OF APPOINTMENT ORDER DTD. 4.6.07 ISSUED BY R4. EXT. P5 : COPY OF PROCEEDINGS DTD. 21.4.08 ISSUED BY R3. EXT. P6 : COPY OF PROCEEDINGS DTD. 10.9.08 ISSUED BY Deputy Director of Education, PALAKKAD. EXT. P7 : COPY OF COMMUNICATION DTD. 16.3.10 SENT BY R3 TO R2. EXT. P8 : COPY OF PROCEEDINGS OF R2 DTD. 8.4.10. EXT. P9 : COPY OF G.O.(P) 169/04/G.EDN. DTD. 15.6.04. EXT. P10 : COPY OF PROCEEDINGS DTD. 29.4.10 PASSED BY R2. EXT. P11 : COPY OF REVISION PETITION DTD. 3.5.10 SUBMITTED BY R5. EXT. P12 : COPY OF G.O.(Rt) No.5567/10/G.EDN. DTD. 10.12.10 BY R1. EXT. P13 : COPY OF G.O.(P) 275/99/G.EDN DTD. 6.11.99. EXT. P14 : COPY OF APPOINTMENT ORDER DTD.4.6.07 ON THE BASIS OF WHICH THE APPOINTMENT OF PETITIONER WAS APPROVED. EXT. P15 : COPY OF APPOINTMENT ORDER DTD. 4.6.07 IN CASE OF M.M. REMA. 5TH RESPONDENT'S EXHIBITS: EXT. R5(a) : COPY OF G.O.(P) 10/10/G.EDN OF GOVT. DTD. 12.1.10. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.1312 OF 2011 --------------------------------------- Dated this the 23rd day of August, 2011. J U D G M E N T This writ petition is filed by the petitioner who is working as Upper Primary School Assistant aggrieved by Ext.P12 order passed by the Government. The operative portion of the order Ext.P12 shows that the vacancy to which the petitioner's appointment is approved namely, with effect from 04.06.2007 is assigned to the 5th respondent. There is a further direction that the Manager and the Educational Officers shall take steps to grant approval to the petitioner with effect from 05.06.2006 in view of the appointment order dated 05.06.2006 issued by the Manager and subject to the conditions in G.O.(P) No.10/10/G.Edn dated 12.01.2010. 2. The petitioner's initial appointment was on daily wage basis which was approved from 25.10.2005 to 21.02.2006. Ext.P1 is the copy of the said order. The petitioner was W.P.(C) No.1312/2011 2 thereafter appointed as Upper Primary School Assistant against the promotion vacancy of Smt.Jessy Sebastian who was promoted as High School Assistant which was an anticipated post, as per Ext.P2 order. The approval of appointment of the promotee was rejected in the light of the ban order issued by the Government, as per Ext.P3 order passed by the 3rd respondent. Thereafter, the petitioner was again appointed as U.P.S.A in the promotion post of Smt.Jessy Sebastian who was appointed by promotion in a retirement vacancy as High School Assistant by Ext.P4. Since the promotion of Smt.Jessy Sebastian was not approved, the approval of appointment of the petitioner was also not granted. This is evident from Ext.P5 order passed by the District Educational Officer. A copy of the order passed in the appeal filed by the Manager is produced as Ext.P6. It appears that the approval of appointment of Smt.Jessy Sebastian was granted later. This is evidenced by Ext.P7 order. 3. As far as the 5th respondent is concerned, she was originally appointed between the period 12.06.2006 and 30.08.2006 on daily wage basis as U.P.S.A. A leave vacancy W.P.(C) No.1312/2011 3 occurred in the school on 04.10.2006 and after leave was granted to Smt.M.Sudha, U.P.S.A, the 5th respondent was appointed in that vacancy. The teacher who went on leave cancelled the leave and rejoined duty on 20.07.2007. Therefore, the 5th respondent continued upto 18.07.2007. 4. The dispute between the petitioner and the 5th respondent was finally adjudicated by the Government as per Ext.P12 which is under challenge in this writ petition. The Government found in favour of the 5th respondent in the light of G.O.(P) No.275/99/G.Edn dated 09.11.1999. The Government took the view that the petitioner was already continuing in an additional division vacancy (regular) with effect from 05.06.2006. Therefore, the Government found fault in the Manager issuing a fresh appointment order in favour of the petitioner in the vacancy to which the 5th respondent had to be accommodated. 5. As far as the approval of persons appointed in additional division vacancies are concerned, the ban order issued by the Government as per G.O.(P) No.317/2005/G.Edn dated 17.08.2005 stands lifted as per G.O.(P) No.10/10/G.Edn dated W.P.(C) No.1312/2011 4 12.01.2010. The Managers have been directed to file declarations for approval of appointments of teachers appointed in additional division vacancies from 2006-07 onwards. 6. This Court has rendered a judgment in W.P.(C) No. 10043/2011 today wherein a direction has been issued to the District Educational Officer to act upon the declaration submitted by the Manager and pass appropriate orders with regard to the grant of approval. Evidently, the petitioner who is one of the petitioners therein will be benefited by the said judgment. Going by Ext.P12 also, the Government has also directed approval of appointment of the petitioner with effect from 05.06.2006 in view of the appointment order dated 05.06.2006 subject to the conditions in G.O.(P) No.10/10/G.Edn dated 12.01.2010. 7. In the light of the judgment of this Court in W.P.(C) No.10043/2011, there cannot be any dispute that the petitioner's appointment will have to be approved with effect from 05.06.2006. There is a binding direction issued by the Government also recognising the right of the petitioner for approval from 05.06.2006. In that view of the matter, the W.P.(C) No.1312/2011 5 petitioner will not be prejudiced at all for granting approval of appointment of the 5th respondent in a later vacancy namely, from 04.06.2007. Apart from that, the 5th respondent was appointed in leave vacancies for different spells and when a regular vacancy arose, in the light of G.O.(P) No.275/99/G.Edn dated 09.11.1999, in the said vacancy she had to be accommodated. 8. Therefore, Ext.P12 order does not call for any interference. Now that W.P.(C) No.10043/2011 has already been disposed of, there will be a direction to the 3rd respondent to pass orders granting approval of appointment of the petitioner in terms of the directions in the said judgment and in the light of the Government Order Ext.P12 herein. Learned counsel for the petitioner submitted that in the light of the approval granted to the petitioner in the vacancy from 04.06.2007, the petitioner has been receiving salary and other benefits and the petitioner may not be directed to refund any of these amounts received when a fresh order is passed by the District Educational Officer as regards approval with effect from W.P.(C) No.1312/2011 6 05.06.2006. The said request is only reasonable. Therefore, the petitioner will not be asked to refund the salary paid for the period from 04.06.2007. This writ petition is disposed of as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp