IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 OP.No. 9110 of 2001(H) -------------------------------- PETITIONER: ------------------- K.BALASUBRAMANYAN, DRAWING TEACHER, MANYA GURU U.P. SCHOOL, KARIVELLUR, KANNUR DISTRICT. BY ADVS. MR.M.VIJAYAKUMAR, MR.M.RAMESH CHANDER. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR. 3. MANAGER, MANYA GURU U.P. SCHOOL, KARIVELLUR, KANNUR DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA, R3 BY ADV. MR.M.SASINDRAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 9110/2001-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION BEFORE THE R.1. DT. 04/04/1999. EXT.P.2: COPY OF THE HEARING NOTES SUBMITTED BEFORE THE R.1. DT. 30/01/2001. EXT.P.3: COPY OF THE G.O.(RT).NO.822/2001/G. EDN. DTD. 28/02/2001. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 9110 OF 2001 ================== Dated this the 5th day of February, 2010 J U D G M E N T The petitioner was appointed as a Drawing Teacher in the 3rd respondent's aided school, when the incumbent of the post retired on 31.3.1993. The said appointment was not approved by the educational authority. The petitioner took up the matter before the appellate and revisional authorities and by Ext.P3, the petitioner's claim was rejected. The petitioner is challenging Ext.P3 order in this original petition. 2. It is not now disputed before me that the issue involved in this case is covered against the petitioner by the Full Bench decision of this Court in Jolly v. State of Kerala [2003 (2) KLT 192 (F.B.)]. The counsel for the petitioner points out that in that Full Bench decision, in paragraph 41, while rejecting the claim of similar petitioners for continuity in service, their right to claim salary for the period they worked subject to the conditions mentioned therein, was upheld. The petitioner seeks similar relief as in paragraph 41 of that judgment. 3. I have heard the parties. 4. In paragraph 41 of the said judgment, it is stated thus: “41. In case the teachers have continued on the posts, the action in not paying them salary is wholly arbitrary and unfair. A person who performs his duties is entitled to the payment of his salary. The dispute between the school and the State cannot result in denial of salary to the o.p.9110/01 2 teacher. The payment, if not already made, the needful should be done without delay. However, it looks difficult to believe that the teachers would continue to teach for more than 14 years without getting their wages. In this situation, it appears fair to direct the competent authority to ascertain the factual position from the employees and the employers. In case it is found that the payment has not been made, the Government shall pay for the duration for which the incumbent had actually worked without getting the wages. However, it is clarified that it shall be entitled to recover, if permissible under law, from the Managements that had appointed the teachers or illegally allowed the incumbents to continue in position. It shall not, however, confer on the incumbents of the posts a right to claim continuance in service or of the posts held by them. The second question is accordingly answered in the above terms. The facts in this case are identical to the facts in the Full Bench decision. That being so, the petitioner is entitled to the benefit of the directions in paragraph 41 of the Full Bench decision. Accordingly, the 2nd respondent shall consider the claim of the petitioner in accordance with paragraph 41 of the judgment in Jolly's case (supra) and pass appropriate orders thereon, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to the petitioner as well as the 3rd respondent. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.9110/01 3 S.SIRI JAGAN, J. ================== O.P.No. 9110 of 2001-H ================== J U D G M E N T 5th February, 2010