IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WA.No. 2354 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.16106/2008 Dated 20/11/2008 .................... APPELLANT(S): PETITIONER ------------------------ P.B. VISHNU, LABORATORY ASSISTANT, HIGHER SECONDARY SCHOOL, SREEKRISHNAPURAM. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): RESPONDENTS -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. THE DEPUTUY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY, ERNAKULAM. 5. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM. 6. THE MANAGER, SREEKRISHNAPURAM HIGHER SECONDARY SCHOOL, SREEKRISHNAPURAM. 7. THE PRINCIPAL, SREEKRISHNAPURAM HIGHER SECONDARY SCHOOL, SREEKRISHNAPURAM. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R6-7 SRI.T.C.SURESH MENON FOR R6-7 SRI. NOBLE MATHEW, SR. GOVERNMENT PLEADER FOR R1-5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2354 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of March, 2009 JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents herein were the respondents in the writ petition. 2. The writ petition was filed challenging Ext.P3 order and seeking consequential reliefs. The brief facts of the case are the following. 3. The appellant was a Full Time Menial, working in the 6th respondent's school, since 1995. When the school was upgraded as a Higher Secondary School, he was appointed as a Lab Assistant by transfer on 6.6.2001. While so, the Deputy Director of Education, by Ext.P3 order dated 5.11.2004, deployed the appellant to another school, treating him as an excess Full Time Menial. He was relieved from the school on W.A.No. 2354 of 2008 2 22.11.2004. While he was working on deployment as Full Time Menial, the Director of Higher Secondary Education approved his appointment as Lab Assistant, by Ext.P4 order dated 17.6.2005. The approval was granted in the light of Ext.P2 Government Order dated 24.9.2004 with effect from 28.3.2003. 4. Initially, the Government proposed to create four posts of Lab Assistants in the Higher Secondary Schools. Later, only two posts were created. To save the appointments of two persons additionally made, the Government issued Ext.P2 order, permitting approval of appointments of four persons, provided their appointments were made before 28.3.2003. The appellant was a beneficiary of that order and that is why the Director issued the order approving the appointment of the appellant with effect from 28.3.2003. Later, by Ext.P5, the Deputy Director of Education re-posted the appellant to his parent school and he joined as Lab Assistant on 23.7.2005. While so, the Director of Higher Secondary Education issued Ext.P6 notice, proposing to cancel Ext.P4 and to take consequential action. In this W.A.No. 2354 of 2008 3 background, the writ petition was filed seeking appropriate reliefs. The learned Single Judge declined to interfere with the proposed action. Hence this Writ Appeal. 5. We heard the learned counsel for the appellant and the learned Government Pleader appearing for the official respondents. 6. It is not in dispute that the appellant joined as Lab Assistant on 6.6.2001 and continued upto 22.11.2004. Thereafter, he was relieved from the school and he could re-join the post of Lab Assistant only on 23.7.2005. In view of Ext.P4 read with Ext.P2, he is entitled to get approval of his service as Lab Assistant with effect from 28.3.2003. Since he has actually worked in that post, he shall be paid salary in the higher post of Lab Assistant from 28.3.2003 to 22.11.2004 and from 23.7.2005. The period of break between 22.11.2004 and 23.7.2005 shall be treated as service rendered by him in the post of Lab Assistant for the purpose of seniority and other service benefits, except salary. During that period the appellant is entitled to get salary of Full Time Menial, which he has already W.A.No. 2354 of 2008 4 received. But he shall be treated as having worked notionally as Lab Assistant during that period. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm