IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WA.No. 944 of 2006() -------------------- AGAINST THE JUDGEMENT IN WPC.984/2005 Dated 28/09/2005 .................... APPELLANT(S)/PETITIONERS:- ------------------------------------------ 1. V. PRABHAKARAN, LOWER PRIMARY SCHOOL ASSISTANT (RETD.) AMUP SCHOOL, KANMANAM, THANNUR MALAPPURAM DISTRICT, RESIDING AT VELLI HOUSE, P.O. PUTHUR, VADAKARA. 2. RAMACHANDRAN, LOWER PRIMARY SCHOOL ASSISTANT (RETD.) AMUP SCHOOL, KANMANAM, THANUR, MALAPPURAM DISTRICT, RESIDING AT POKKESSERY VEEDU, THIKKODY, KOZHIKODE DIST. BY ADV. SRI.K.MOHANA KANNAN SMT.A.R.PRAVITHA RESPONDENT(S)/RESPONDENTS:- ---------------------------------------------- 1. THE SECRETARY TO GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, TAHANUR, MALAPPURAM. GOVERNMENT PLEADER SRI.LAKSHMINARAYANAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = Writ Appeal No.944 of 2006. = = = = = = = = = = = = = Dated this the 7th day of July, 2010. J U D G M E N T Gopinathan, J. Assailing the judgment of the learned single Judge dated 28.9.2005 in WP(C).No.984/2005, the unsuccessful petitioners had come up in appeal. The petitioners, who were holding TCH certificate issued by the Government of Karnataka were appointed as Lower Primary School Assistants in AMUP School, Kanmanam, Thanur in Malappuram district. The 4th respondent, the Assistant Educational Officer, Thanur declined to approve the appointment for the reason that the certificates held by the appellants were not approved by the State Government. Though, the Manager went in appeal, he was not successful. Therefore, the appellants, who were working from 28.3.1994 were terminated with effect from the WA.No.944 of 2006. -: 2 :- afternoon of 31.10.1995. Later, the State Government approved the TCH holders for appointment in State service and by GO.(MS)No.18/97/G.Edn. dated 17.1.1997 and GO (MS)No.348/97/G.Edn. dated 2.9.1997 issued orders directing to approve the service of the thrown out TCH holders. The appellants moved the Government and obtained order of approval of their appointment with effect from 1995-’96. Though, the Manager assailed the said order he was unsuccessful. The appointments of the appellants were directed to be considered. In the light of the above Government Orders, the Deputy Director of Education directed the Manager to re-appoint the appellants. Later, the first appellant was appointed in KPNMUPS, Thanur and the second appellant was appointed at AMLPS, Kormanthala and they joined duty with effect from 12.8.1999. 2. Holders of Teachers Training Certificate (TTC) who were appointed in the vacancy created by the WA.No.944 of 2006. -: 3 :- termination of the appellants, though moved this Court were unsuccessful. There were a series of litigations. By Ext.P1 judgment dated 28.1.2004 in OP.No.6959/2003 filed by the appellants and another, another Division Bench of this Court clarified that: “in view of the revisional order passed by the Government setting aside the termination, the entire period from the date of re- appointment in 1994 should be counted for their pensionary benefits.” Quoting Ext.P1 judgment, the appellants preferred representation to grant them monetary benefits from the date of their initial appointment though Ext.P1 doesn't contain any order to that effect. Their request was turned down by the authorities. Being aggrieved, they moved this Court with the writ petition seeking a writ of mandamus commanding the respondents to immediately disburse all benefits to the appellants from the date of their initial appointment as teachers with interest at the rate of 18% per annum. The learned single Judge disposed the writ WA.No.944 of 2006. -: 4 :- petition directing the respondents to pay the salary for the period from 28.3.1994 till 31.10.1995 for which period they had actually worked. Being aggrieved by the order declining salary for the period they were kept out of service, this writ appeal was filed with a delay of 98 days. 3. Notice was ordered on petition to condone the delay. Notice to respondents 1 and 3 were acknowledged. Notice to respondents 2 and 4 were returned. Appellants were directed to remit fresh process. But, the appellant did not care to remit the process fee though nearly four years elapsed. Respondents 2 and 4, being the Deputy Director of Education, Malappuram and the Assistant Educational Officer, Thanur, the Government Pleader was asked to take notice. He took notice. Accordingly, the petition to condone the delay and the appeal were heard. 4. Ext.P1 judgment, being one delivered in a writ petition filed by the appellants and another, would be binding on the appellants. The relevant portion of Ext.P1 WA.No.944 of 2006. -: 5 :- which we quoted above would show that, in the earlier round of litigation, this Court, after declining their claim for salary from the initial date of appointment, ordered that for the pensionary benefit, such period would be counted. In view of Ext.P1, the appellants are, in fact, estoped from moving another petition seeking a writ for the same relief. However, the learned single Judge had directed the respondents to disburse the salary for the period during which they had actually worked. The learned single Judge while declining the reliefs sought had found that Ext.P1 judgment would be binding upon the appellants. It could not be ignored that the services of the appellants were terminated by the Manager obviously for the reason that at the time of appointment the certificates held by them were not approved by the State Government. In the above circumstance, it cannot be said that the services of the appellants were terminated by the Manager with malafides. The claim for salary during the period during which they WA.No.944 of 2006. -: 6 :- had not actually worked was rightly rejected by the learned single Judge. There is total lack of banafides in claiming salary for the period during which the appellants had not rendered any service. We find no reason to entertain this appeal after condoning the delay. Accordingly, the petition to condone the delay and the appeal are dismissed as devoid of merit. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-