High Court of KeralaSingle Judge2014-02-12Disposed of with directions to decide Ext. P7 e...

Asmabi A.T. v. State of Kerala & Others

Case / Petition Number:WP(C).No. 4242 of 2014 (E)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. K. Abdul Rehim
Judgment Date: 2014-02-12
Court Decision / Holding: Writ petition disposed of directing the 2nd respondent to consider Ext. P7 and to take an appropriate decision on the request, after affording an opportunity of personal hearing to the petitioner and others concerned, at the earliest possible, within two months from the date of receipt of a copy of the judgment. Till such time a decision is taken, no recovery from the salary of the petitioner shall be effected nor the payment of salary due to the petitioner shall be withheld, based on Exts. P5 and P8.
Final Disposition: Disposed of with directions to decide Ext. P7 expeditiously; no recovery until decision.

Parties to the Case

Appellants / Petitioners

Asmabi A.T., W/o. Ibrahim P.M., UPSA, TIHS School Naimarmoola, Vidyanagar P.O., Kasaragod District – 671123

Respondents

State of Kerala, represented by the Secretary to Government, General Education Department, Govt. Secretariat (Annex), Thiruvananthapuram – 695001
Director of Public Instructions, Jagathy P.O., Thiruvananthapuram – 695014
Deputy Director of Education, Civil Station, Kasaragod District – 671123
District Educational Officer, Kasaragod District – 671123
The Headmaster, TIHS School Naimarmoola, Vidyanagar P.O., Kasaragod District – 671123

Legal Representation & Advocates

Counsels for Petitioners

• Sri Murali Pallath

Counsels for Respondents

• Sri M.A. Fayaz

Case Synopsis & Summary

Issue before the High Court was the approval of the appointment of the petitioner as High School Assistant (Arabic) at TIHS School Naimarmoola, Kasaragod. The vacancy arose due to leave without allowance taken by a regular HSA (Arabic). Initially, the approval was declined by respondents 3 and 4, but the 2nd respondent referred the matter to the 4th respondent for fresh decision under Ext. P2, based on an undertaking by the Manager as per G.O. (P) No.46/2006/G.Edn. dated 1.2.2006. Consequently, the 4th respondent granted approval (Ext. P3), and the petitioner drew salary in the approved post. Subsequently, the petitioner obtained regular UPSA appointment in the same school with effect from 31.3.2010, which was also approved. The 4th respondent then issued Ext. P5 directing recovery of salary from 1.8.2005 to 19.10.2007, on the basis that the 2nd respondent had indicated the leave-vacancy appointment was irregular since the Manager did not comply with the Government order, as no protected teacher was appointed against the vacancy. Ext. P8 followed, ordering recovery or salary withholding. The petitioner contends there was no protected teacher available during the relevant period, supported by RTI reply (Ext. P9) and the decision in Nadeera v. State of Kerala (2011 (3) KLT 790). The court directed the 2nd respondent to consider Ext. P7 and decide, after hearing, within two months, and until a decision is taken, no recovery shall be effected or salary withheld under Exts. P5 and P8.

Provisions of Law Cited

G.O.(P). No.46/2006//G.Edn. dt. 1.2.2006Right to Information Act (RTI Act)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that there was no protected teacher available during the relevant period; Ext. P9 (RTI reply) supports this and the decision in Nadeera v. State of Kerala (2011 (3) KLT 790) shows that appointment against a leave vacancy cannot be faulted for lack of a protected teacher when none existed. The petitioner urges the 2nd respondent to reconsider Ext. P7 on the basis of the settled legal position and the material on record, and to protect the petitioner from recovery until a decision is rendered. It is argued that Exts. P5 and P8 would unjustly deprive the petitioner of salary. The court is urged to ensure due process and expedite the decision on Ext. P7 with a personal hearing.

Contentions of Respondents

Respondents contend that the vacancy arose on a leave vacancy and the appointment should be scrutinized under GO (P) 46/2006/G.Edn; since the Manager did not comply with the government order and no protected teacher was appointed against the vacancy, the appointment was irregular. They rely on the audit objection and the government order to justify recovery of salary and withholding. They emphasize that Ext. P7 is to be examined by the competent authority (2nd respondent) in light of available records and the law governing such appointments.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Nadeera v. State of Kerala	2011 (3) KLT 790	Positive	The court references Nadeera to support that there could be no protection of appointment against a leave vacancy if there was no protected teacher available; the settled legal position remains applicable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2014/23RD MAGHA, 1935** **WP(C).No. 4242 of 2014 (E) ---------------------------** - **PETITIONER(S): ------------------------** **ASMABI. A.T, W/O. IBRAHIM P.M., U.P.S.A, T.I.H.S.S. NAIMARMOOLA, VIDYANAGAR P.O., KASARAGOD DIST, PIN 671 123.** **BY ADV. SRI.MURALI PALLATH** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT (ANNEX)., THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY P.O., THIRUVANANTHAPURAM, PIN - 695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KASARAGOD DIST. PIN - 671 123.** **4. THE DISTRICT EDUCATIONAL OFFICER, KASARAGOD DIST, PIN - 671 123.** **5. THE HEADMASTER,** - **T.I.H.S.SCHOOL NAIMARMOOLA, VIDYANAGAR P.O., KASARAGOD DIST, PIN - 671 123.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.M.A.FAYAZ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 4242 of 2014 (E)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **----------------------------------------** **EXHIBIT P1 : TRUE COPY OF APPOINTMENT ORDER DATED 01.08.2005.** **EXHIBIT P2 : TRUE COPY OF ORDER NO.EM 3/46374/06/DPI/D.DIS. DATED 15.05.2007 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 : TRUE ORDER NO.B2/6556/2008/K.DIS DATED 02.04.2009.** **EXHIBIT P4 : TRUE COPY OF APPOINTMENT ORDER DATED 31.03.2010.** **EXHIBIT P5 : TRUE COPY OF NOTICE NO.B2/5785/12 DATED 30.10.2012 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P6 : TRUE COPY OF LETTER NO.B2/5785/2012 DATED 13.09.2013.** **EXHIBIT P7 : TRUE COPY OF REPRESENTATION DATED 23.10.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P8 : TRUE COPY OF THE LETTER NO.B2/5785/2012 DATED 07.01.2014 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P9 : TRUE COPY OF LETTER NO.B1/RTI-222/2013 DATED 06.01.2014 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P10 : TRUE COPY OF RELEVANT PAGES OF 2011(3) KLT 790.** **RESPONDENT(S)' EXHIBITS -----------------------------------------** **N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** C.K.ABDUL REHIM,J. ------------------------------------WP(C).NO. 4242 of 2014 --------------------------------Dated this the 12th day of February, 2014 ## JUDGMENT Issue involved is regarding approval of appointment of the petitioner as High School Assistant (Arabic) at T.I.H.S. School Naimarmoola in Kasaragod District. The Appointment was against a vacancy which arose on account of 'leave without allowance' availed by a regular HSA (Arabic). Eventhough approval of the appointment was initially declined by respondents 3 and 4, the 2[nd] respondent had remitted the matter for fresh decision of the 4[th] respondent as per Ext. P2, on the basis of an undertaking given by the Manager as per G.O.(P). No.46/2006//G.Edn. dt. 1.2.2006. Consequently, approval was granted by the 4[th] respondent as per Ext.P3, and the petitioner was drawing salary in the approved post. Subsequently the petitioner got regular appointment as UPSA in the very same school, with effect from 31.3.2010, which was also approved. Now the 4[th] respondent had issued Ext.P5 letter to the Manager directing recovery of the salary of the petitioner, for the period WP(C). 4242 /2014 2 from 1.8.2005 to 19.10.2007, on the basis that the 2[nd] respondent had intimated that the appointment of the petitioner against the leave vacancy was irregular, because the Manager has not complied with the Government Order, G.O.(P). No.46/2006//G.Edn. dt. 1.2.2006, since no protected teacher was appointed against the said vacancy. Consequent to Ext.P5 the 4[th] respondent had issued Ext.P8 letter to the Headmaster and the Manager to recover the alleged excess payments from the petitioner or to withhold her salary in the post of UPSA in which she is continuing at present . It is challenging Exts.P5 and P8 this writ petition is filed. 2. According to the petitioner, there was no protected teacher available during the relevant time in the District concerned. In proof of such contention the petitioner had produced Ext.P9, reply received under the Right to Information Act. It is further contended that, even otherwise the rejection of approval on the allegation of non appointment of protected teacher cannot be sustained in view of the decision of this court in **Nadeera vs. State of Kerala (2011 (3) KLT 790)** . WP(C). 4242 /2014 3 3. Heard; counsel for the petitioner and Government Pleader appearing for respondents. It is noticed that, aggrieved by Exts. P5 and P8 the petitioner had already approached the 2[nd] respondent in Ext.P7 petition, seeking reconsideration of the audit objection reviewing approval of appointment for the period from 1.8.2005 to 19.10.2007. The petitioner had specifically pointed out the legal position remaining settled as per **Nadeera's** case (cited supra) and also Ext.P9 to the effect that no protected teacher was available during the relevant time. This court is of the opinion that it is for the 2[nd] respondent to consider Ext.P7 and take appropriate decision on the basis of the materials available and on the basis of the legal position remaining settled. Interest of justice will be served by directing the 2[nd] respondent to dispose of Ext.P7 on an early basis. 4. Therefore the writ petition is disposed of directing the 2[nd] respondent to consider Ext.P7 and to take an appropriate decision on the request made thereon, after affording an opportunity of personal hearing to the petitioner and others concerned, at the earliest possible, at any rate within a period of WP(C). 4242 /2014 4 two months from the date of receipt of a copy of this judgment. 5. Till such time a decision is taken by the 2nd respondent as directed above, no recovery from the salary of the petitioner shall be effected nor the payment of salary due to the petitioner shall be withheld, based on Ext.P5 and P8 proceedings. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 4242 /2014 5 WP(C). 4242 /2014 6