Babitha E.J. v. DPI Thiruvananthapuram and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 2ND DAY OF DECEMBER 2013/11TH AGRAHAYANA, 1935 WP(C).No. 23166 of 2010 (U) ---------------------------- PETITIONER: ---------- BABITHA.E.J, LPSA HEHMMLP SCHOOL, MATTANCHERRY, KOCHI-2. BY ADV. SMT.P.V.ASHA RESPONDENTS: ----------- 1. DPI THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, ERNAKULAM, KOCHI-30. 3. ASSISTANT EDUCATIONAL OFFICER, MATTANCHERRY, KOCHI-2. 4. MANAGER, HEHMMLP SCHOOL, MATTANCHERRY, KOCHI-2. BY SR.GOVERNMENT PLEADER SRI.RAMAPRASAD UNNI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2013, THE COURT ON 02/12/2013 DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.23166 OF 2010** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF THE ORDER OF APPOINTMENT ALONG WITH ENDT.NO.D-1368/07/D.DIS DATED 14/09/2007. EXT.P2: TRUE COPY OF THE LETTER NO.D/1948/2010 DATED 21/7/2010 OF THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE EXTRACT OF AUDIT REPORT. ## **RESPONDENTS’ EXHIBITS:** NIL // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.23166 of 2010 ---------------------------------------- Dated this the 2[nd] day of December 2013 ## **J U D G M E N T** The petitioner challenges Ext.P2 order issued by the 3[rd] respondent revoking the approval granted to the petitioner as Lower Primary School Assistant with effect from 01/06/2007. Ext.P2 order issued on 21/07/2010 on the basis of a finding in audit report stating that the petitioner was appointed as LPSA in the promotion vacancy of Smt.Lally Xavier which was approved by the Assistant Educational Officer as per order dated 14/09/2007. The school came under the purview of uneconomic school during the year 2007-2008. Vacancies that had arisen during the said academic year ought to be filled up only with the protected hand in terms of Circular dated 18/05/2008. It was therefore mentioned that the action of AEO in granting approval of appointment to the petitioner with effect from 01/06/2007 is not in order and hence action has to be taken in the matter. W.P.C.Nos.23166/2010 2 It is pursuant to the said audit objection, the AEO had passed Ext.P2 order directing the Head Mistress to stop all payments including salary in respect of the petitioner. 2. By virtue of interim order passed by this Court, the petitioner had been working in the said school and is drawing salary. It is inter alia contended that Ext.P2 order cannot be issued by the AEO as he has no power to revoke the order of approval nor can he review the order passed by him. That apart, it is contended that the audit objection came only after three years of regular appointment and if the appointment was not approved within a reasonable time, the petitioner would have other opportunities to get employment. That apart, it is contended that the direction not to pay salary is clearly illegal in the light of the judgment of this Court in **Usuvathunnisa v. Asst. Educational Officer** _[1990(2) KLT 530]._ 3. Counter affidavit is filed by the 3[rd] respondent inter alia contending that the Government as per G.O.(P) W.P.C.Nos.23166/2010 3 259/06/G.Edn. dated 12/10/2006 has indicated that the vacancy in an uneconomic school shall be filled up only from protected hands. It is contended that since the petitioner's appointment was not in accordance with the said directions issued by the Government, the petitioner has no legal right to get approval. The approval was granted only on account of a mistake which was noted only during the audit objection and therefore corrective measures had been taken in the matter. 4. Having regard to the aforesaid contentions, the question to be considered is whether the petitioner can claim regular appointment in the said post and whether Ext.P2 is liable to be interfered with. In regard to the appointment of the petitioner, though a contention is raised that it was a valid appointment, having regard to the fact that the appointment has been made against the circulars issued by the Government, the Manager was bound to follow the circular before taking steps for appointment. Same is W.P.C.Nos.23166/2010 4 the situation as far as the Assistant Educational Officer is concerned. Before approving the same, the said authority ought to have taken sufficient care to see whether the appointment is in accordance with the procedure prescribed. Wrong appointment cannot give rise to a legal right to the petitioner to claim the continuance in employment and therefore I have no hesitation to hold that the respondent authority was justified in coming to the conclusion that the appointment of the petitioner was bad in law and was against the circulars issued. 5. The next contention is regarding the right of the petitioner to claim salary. It is not in dispute that it was under a mistake that the petitioner's appointment was approved by the AEO and she was being paid salary until Ext.P2 came to be issued. Such being the situation, when the appointment was made as per the procedure prescribed without taking into consideration the circulars issued, it can only be stated that there was no fault on the part of the W.P.C.Nos.23166/2010 5 petitioner in that matter. The petitioner had carried out the obligations in connection with her appointment until now and therefore the petitioner cannot be deprived of the benefit of salary during the period that she had worked in the said school. 6. Coming to the next question as to whether the AEO has the power to revoke the said appointment, apparently the appointment has been made by way of a mistake which required to be corrected. The approval was granted by the AEO on the basis of an appointment order issued by the Manager. It is contended that the AEO has no power to review the said order. This is not a case where the approval had been given in the regular course. It is now clear that the order of approval was made under a mistake of facts. The same is required to be corrected. Even if there is no specific provision which enables the AEO to revoke the order of approval, the fact remains that the mistake can be corrected by the AEO after notice to the concerned parties. W.P.C.Nos.23166/2010 6 That being the situation, I do not think that there is anything wrong in the AEO revoking the order of approval as per endorsement made in Ext.P1. In that view of the matter, Ext.P2 can be sustained. 7. Though the petitioner is not entitled for any relief, as prayed for, it is made clear that the salary and allowances paid to her so far shall not be recovered back. This writ petition is disposed of with the above direction. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr