IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 W.A.No. 2834 of 2001 ----------------------------- AGAINST THE JUDGEMENT IN O.P.7654/1993 dated 9-10-2000 .................... APPELLANTS / RESPONDENTS: --------------------------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER WAYANAD KALPETTA 2. THE DEPUTY DIRECTOR OF EDUCATION WAYANAD KALPETTA BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA RESPONDENT / PETITIONER ----------------------------------------- E.M.REETHA DRAWING TEACHER ASSUMPTION GIRLS HIGH SCHOOL SULTAN BATHERY WAYANAD ADV. SRI.T.P.M. IBRAHIM KHAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2834 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of October 2008 JUDGMENT A.K.BASHEER, J. This writ appeal which is at the instance of the officers of the Department of Education under the State is directed against the judgment of the learned Single Judge in O.P.No.7654 of 1993. By the impugned judgment, the learned Single Judge had directed the appellants to pay the arrears of salary, if any, to the respondent for the period from 1992-1993 within three months from the date of the judgment and also to grant approval for her appointment as a specialist teacher from 1986-1987 onwards with all consequential benefits. 2. A brief reference to the essential facts is necessary to consider the question whether any interference is warranted with the order passed by the learned Single Judge. 3. It is not in dispute that the respondent was appointed as a drawing teacher against a transfer vacancy in Assumption Girls High School, Sultan Bathery, Wayanad with effect from December 18, 1985 forenoon till March 31, 1986. It is also not in dispute that the post of drawing teacher was abolished in the school starting from the ensuing academic year viz. 1986-1987 onwards. Yet again, it is beyond controversy that the above post was sanctioned in the school only during 1992-1993. Admittedly, the respondent was appointed by the Manager in the school W.A.No.2834 OF 2001 :: 2 :: as a drawing teacher with effect from November 2, 1992 and she had been working in the school eversince. However, the respondent filed the original petition praying for a direction to the respondents to approve her appointment with all consequential benefits with effect from 1986-1987 onwards in the light of Ext.P3 order of the Government. The other prayer was to quash the direction or orders passed by the authorities not to approve her appointment and denying her consequential benefits from 1986-1987 onwards. 4. In the counter affidavit filed by the Department, it was specifically contended that the respondent could not have claimed any benefit for the period from 1986-1987 till her fresh appointment in November 1992, since during the above period no sanctioned post did exist in the school. It was also pointed out that the respondent could not have, by any stretch of imagination, got the benefit of Ext.P3 order of the Government. 5. However, the learned Single Judge took the view that the respondent was entitled to get approval of her services from 1986-1987 onwards, in view of the direction issued by this Court in Ext.P2 judgment. We have carefully perused Ext.P2 judgment, the relevant portion of which is extracted herein: “Second respondent shall visit the Assumption Girls High School, Sultan's Battery, Wayanad district, verify the records and conduct such other verification as he deems fit and determine the number of periods available per week for Physical Education, Sewing, Music and Drawing. If it is found W.A.No.2834 OF 2001 :: 3 :: that for Music and Drawing five periods each are available per week, he shall sanction a post of Drawing Teacher for the year 1986-1987. This shall be done as expeditiously as possible and at any rate within six weeks from the date of receipt of a copy of this judgment.” 6. It is on record that the departmental officers had conducted the inspection as directed in the judgment. It was found that there was no minimum number of periods in the school warranting sanctioning of the post of drawing teacher in the school. It was specifically pointed out that there were only ten periods of specialist posts in the school against which one Music teacher and a Sewing teacher had already been engaged. Thus, there was no warrant for appointment of another specialist teacher in the school. It was further pointed out that the respondent could not have got the benefit of Ext.P3 order of the Government which was issued in order to protect the retrenched specialist teachers who had already been in service after putting the minimum requisite service. Admittedly, the respondent had worked for hardly four months and, therefore, she could not have got the benefit of Ext.P3 order of the Government at all. It is also pointed out by the appellants that in the salary bills for the relevant periods submitted by the manager, the name of the respondent was not included at all which indicated that she had not been working. Further, the fact that the manager had re-appointed the respondent with effect from November 2, 1992 also clearly established that the respondent had not been working in the school from 1986-1987 onwards till November 1992. W.A.No.2834 OF 2001 :: 4 :: 7. Faced with the above admitted factual position, learned counsel for the respondent submitted that the respondent being a poor drawing teacher and she having been allowed by the management to continue in service from 1986-1987, it would be unjust to deny her the consequential service benefits from that period till her re-appointment in November 1992. We are afraid the above plea though it may appeal to the heart, cannot be countenanced. Even assuming the manager had allowed the respondent to work in the school in an unsanctioned post, the Government cannot be fastened with the liability to pay salary to her from its exchequer. 8. In any view of the matter, the direction issued by the learned Single Judge to give service benefits to the respondent with effect from 1986-1987 till 1992 cannot be justified at all. Therefore, the judgment of the learned Single Judge is set aside. Writ appeal is allowed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes W.A.No.2834 OF 2001 :: 5 :: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2834 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 16th October 2008