IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 WA.No. 2597 of 2005(E) ---------------------- AGAINST THE JUDGEMENT/ORDER IN OP.22489/2002 Dated 18/08/2005 .................... APPELLANT: PETITIONER IN O.P: --------------------------------------------------- K. ROHIYANATH BEEVI, U.P.S.A., V.V.H.S. AYATHIL, KOLLAM. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: RESPONDENTS IN O.P: ------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. 4. THE MANAGER, V.V.H.S., AYATHIL, KOLLAM. BY SR. GOVERNMENT PLEADER SRI. BENNY GERVACIS - R1TO 3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & THOMAS P.JOSEPH, JJ. -------------------------------------- W.A.No.2597 OF 2005 ------------------------------------- Dated 19th August, 2008 JUDGMENT Koshy,J . The appellant/petitioner was working as U.P.S.A. From 24.11.1986. In 1994-95 an audit objection was raised that the petitioner was an excess hand and, therefore, no salary was paid after 15.7.1994. In view of the fact that a vacancy arose due to promotion, she could have continued and, therefore, later the audit objections were withdrawn. In 1995-96, there was further reduction in division and she was not given salary in 1995-96. But, in view of the Government Order, she was given notional protection with effect from 15.2.1996. Petitioner's representations were considered in Ext.P4 which reads as follows: “......... Government have examined the case in detail in consultation with the Director of Public Instruction. The petitioner was thrown out with effect from 15.7.94 due to the reduction of post during 94-95 consequent on the audit objection. But subsequently the audit objection was dropped. Smt.Rehiyanath Beevi would have continued in the school during 94-95 if there was no audit objection. The audit objection was subsequently dropped. If she would have continued in the school during 94- W.A.2597/2005 2 95, she could complete years of service during 94-95 and could have enjoyed the benefit of protection as per GO(MS) 60/96/GE dt. 20.2.96. Unfortunately she was thrown out with effect from 15.7.94, and it was not due to her fault or management but due to the audit objection which was dropped later. In the circumstances, Government find merit in the representation read as 2nd paper above and are pleased to retain Smt.Rahiyanath Beevi as UPSA in VVHS Ayathil with effect from 15.7.94 to 31.3.95 on condition that her service benefits will be given notionally for the year 94- 95. During 95-96 thee was no post to accommodate her in the school. The protection order issued in G.O.(MS)No.60/96/GE dt. 15.2.96 has only prospective effect. Therefore she will be given notional protection with effect from 15.2.96 onwards. The period from 1.4.95 to 14.2.96 will be treated as eligible leave or leave without allowance.” Learned single Judge considered the same. Considering the fact that the audit objection raised from the Accountant General's office was later dropped in the light of Exhibit P10 letter written by the DEO, the Government decided to treat the entire period as on duty and the petitioner was retained as UPSA for the period from 4.11.1994 to 31.3.1995, on condition that her service benefits will be given only notionally for the year 1994-95. It is also clear that because of this factual position, she had been thrown out during 1994, she could not W.A.2597/2005 3 get the benefit of the order granting protection (Order dated 20-2- 1996). Exhibit P4 recites that the petitioner was thrown out only on account of the fact that there was audit objection which was later withdrawn. No doubt, it was noted that it was not due to her fault or that of the management, it happened. In such circumstances, the impugned orders cannot be sustained fully. Contention of the petitioner is that in view of the vacancy that occurred due to promotion based on which audit objection was withdrawn, she continued in the service. Students also cannot be left without a teacher. Ext.P10 shows that she was marking attendance continuously. The fact is that she was discharging the duties of the teacher during the period. Merely because of the wrong audit objection which was admittedly withdrawn, she cannot be denied salary for the period from 15.7.1994 to 31.3.1995. Therefore, we direct the respondents to disburse her salary from 15.7.1994 to 31.3.1995 also. Even audit objection was made not because of her fault and the audit objection was withdrawn. Actually, she was working during the above period. However, for the period 1995-96 she is not entitled to salary but only for the benefit of protection order with effect from 15.2.1996. Therefore, Ext.P4 is modified. She is also entitled salary for the period from 15.7.1994 to 31.3.1995. The salary W.A.2597/2005 4 should be disbursed within three months from the date of receipt of a copy of this judgment. The appeal is partly allowed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks