E.K. Saheela v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** **WP(C).No. 24303 of 2013 (K) ----------------------------** **PETITIONER(S):** **-------------** **E.K.SAHEELA, AGED 26,** **WIFE OF K.M.FAISAL, LOWER PRIMARY SCHOOL ASSISTANT, CHEMBILODE CENTRAL LOWER PRIMARY SCHOOL, P.O.MOWENCHERRY, KANNUR DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-695 014.** **3. THE ASSISTANT EDUCATIONAL OFFICER KANNUR NORTH, P.O.KANNUR-670 602.** **4. THE ACCOUNTANT GENERAL (A & E) KERALA THIRUVANANTHAPURAM-695 039.** **5. THE HEADMASTER** - **CHEMBILODE CENTRAL LOWER PRIMARY SCHOOL, P.O.MOWENCHERRY, KANNUR DISTRICT-670 613.** **R1-R4 BY SENIOR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 24303 of 2013 (K)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1.6.2009 AND APPROVAL THEREOF.** - **P2 TRUE COPY OF THE 6TH WORKING DAY STRENGTH DATED 8.6.2009.** - **P3 TRUE COPY OF THE PROMOTION LIST OF 2009-2010 OF THE SCHOOL DATED 21.4.2010.** - **P4 TRUE COPY OF THE DECISION REPORTED IN 1990(2)KLT 530 DATED 4.7.1989.** - **P5 TRUE COPY OF THE G.O.(RT.)NO.3659/13/G.EDN. DATED 3.9.2013 OF THE GOVERNMENT.** - **P6 TRUE COPY OF THE JUDGMENT IN W.P[C]NO.2205/2011 DATED 23.3.2011.** - **P7 TRUE COPY OF THE CIRCULAR OF THE GOVERNMENT DATED 10.5.2012 OF THE GOVERNMENT.** - **P8 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 6.10.2012.** - **P9 TRUE COPY OF THE G.O.(RT.)NO.1706/12/G.EDN. DATED 9.4.2012 OF THE GOVERNMENT.** - **P10 TRUE COPY OF THE G.O.(RT.)NO.1422/12/G.EDN. DATED 23.3.2012 OF THE GOVERNMENT.** - **P11 TRUE COPY OF THE G.O.(RT.)NO.1510/12/G.EDN. DATED 28.3.2012 OF THE GOVERNMENT.** - **P12 TRUE COPY OF THE CIRCULAR OF THE GOVERNMENT DATED 6.11.2012.** - **P12(A) TRUE COPY OF THE RE-APPOINTMENT ORDER OF THE PETITIONER DATED 1.6.2011.** **P12(B) TRUE COPY OF THE UID SCHOOL REPORT (CLASS WISE)** **RESPONDENT(S)' EXHIBITS** **-----------------------** **//TRUE COPY//** **msv/** **NIL** **P.S.TO JUDGE** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.24303 of 2013** **= = = = = = = = = = = = = = = Dated this the 24[th] day of November, 2016** ## **JUDGMENT** ## 1.The prayers in this writ petition are as follows:- - i. Call for the records relating to Exhibit P5 and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order. - ii. Declare that the pay and allowances paid to the petitioner in lieu of her service against sanctioned post pursuant to the approval shall not be called upon to be refunded. - iii.Issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to grant approval to the petitioner from 01.06.2011 in pay scale.” - 2.The petitioner was appointed as Lower Primary School Assistant (LPSA) with effect from 01.06.2009 against the promotion vacancy of Smt.M.Sailaja, who was appointed as Headmistress on 22.02.2005. The appointments of Smt.M.Sailaja and the petitioner were approved as is evident from Exhibit P1, and salary was paid. Thereafter, an audit objection was raised to the effect that the school had an W.P.(C).No.24303 of 2013 2 effective strength of only 99 students, and therefore the appointment of the petitioner could have been made only on daily wage basis. In the above circumstances, orders were passed directing the approval of appointment of the petitioner only on daily wages and to recover the salary drawn by the petitioner on a scale of pay. 3.The petitioner preferred a representation before the Government against the actions sought to be taken against him on the basis of the audit objection. By Exhibit P5 order dated 3.9.2013, it was directed that the appointment of the petitioner from 01.10.2011 onwards shall be approved on daily wage basis. The petitioner relies on Exhibit P4, a decision of this Court reported in **Usuvathunnisa v. Asst.Educational Officer** [1990(2) KLT 530] to contend that sanction to a post cannot be withdrawn on the basis of an audit objection, and that the order to recover salary already paid would be illegal. It is stated in Exhibit P5 order that the headmistress, who had been placed under suspension and in whose vacancy W.P.(C).No.24303 of 2013 3 Smt.Sailaja was appointed as headmistress, was reinstated on 30.03.2011 and had retired on 31.03.2011. In the above circumstances, it is stated that the petitioner's appointment would be approved only with effect from 01.06.2011, and since the school was an uneconomical as on that date, it could have been approved only on daily wage basis. - 4.Heard the learned counsel for the petitioner and the learned Government Pleader. - 5.It is contended by the learned counsel for the petitioner that the petitioner's appointment with effect from 01.06.2009 had been duly approved by the endorsement in Exhibit P1 order. It is contended that the student strength is to be taken into account as on the date of her initial appointment, i.e on 01.06.2009. In the above view of the matter, it is contended that the vacancy to which she was appointed w.e.f. 1.06.2009 had continued since the headmistress was reinstated on 30.03.2011 and retired on 31.03.2011. Therefore no W.P.(C).No.24303 of 2013 4 consequential orders of reversion of Smt.Sailaja and retrenchment of the petitioner were issued, it is contended. It is further contended that, going by Exhibit P12 circular, the school could be termed to be an uneconomical school only if the student's strength falls below 60, and appointments could be approved if the student's strength is above 60. It is further contended that the appointment had been approved with effect from 01.06.2009 and no orders having been passed recalling the approval already granted, Exhibit P5 order rejecting the petitioner's representation and directing the recovery of salary already paid to her would be completely without jurisdiction. - 6.The learned Government Pleader, on the other hand, contends that petitioner's appointment with effect from 1.06.2009 could have been approved only on daily wages. It is contended that it was found in audit that the approval granted as per Exhibit P1 was not in order, and therefore, the salary paid to the petitioner in excess was directed to be withdrawn. W.P.(C).No.24303 of 2013 5 It is further contended that the petitioner had been given approval for her appointment w.e.f. 01.06.2011 on daily wages, since her appointment was in an uneconomic school. In the above view of the matter, it is contended that the rejection of the petitioner's claim is well in order. 7.I have considered the contentions advanced on either side. It is clear that the petitioner's appointment made with effect from 01.06.2009 had been approved by the educational authorities at the relevant time. The petitioner had also drawn salary on the basis of the approval of her appointment in the vacancy created by the promotion of Smt.M.Sailaja as temporary headmistress. There is no order passed by the competent educational authorities recalling or reviewing the order of approval of appointment granted to the petitioner. It is clear from the counter affidavit as well as the contentions advanced, by the learned Government Pleader that it was only on the basis of an audit objection that the approval of the petitioner's appointment was found to be erroneous and her W.P.(C).No.24303 of 2013 6 salary was directed to be withdrawn. 8.It has been held by this Court in **Usuvathunnisa (supra)** that once there was sanction for the post and the appointment against the post is duly approved by the educational authorties, the only authority who could set right the illegality is the Director of Public Instruction under Rule 12E(3) of Chapter XXIII of the Education Rules, 1959 (Kerala). Since there is no contention that the approval granted to the petitioner's appointment w.e.f. 1.06.2009 has been revised by the DPI in exercise of the power under Rule 12E(3) of Chapter XXIII of the Education Rules, 1959 (Kerala), I am of the opinion that the decision in **Usuvathunnisa (supra)** squarely applies in this case. The salary drawn by the petitioner on the strength of the orders for approval duly granted cannot be directed to be recovered on the basis of audit reports or norms by the Accountant General. In the above view of the matter, I am of the opinion that the directions contained in Exhibit P5 are unsustainable. W.P.(C).No.24303 of 2013 7 9.The direction contained in Exhibit P5 to recall the approval and refund the amount drawn by her in excess as salary is, therefore, completely unjustified. Exhibit P5 is, therefore, set aside. It is directed that the approval of the petitioner's appointment w.e.f. 01.06.2009, which continued without any termination of the vacancy consequent on the reinstatement of the headmaster on 30.03.2011, and his retirement on 31.03.2011 shall be treated as a continuous appointment from the date of Exhibit P1. The petitioner shall be entitled to all consequential benefits of her appointment on 01.06.2009 and the approval granted therein. Any consequential benefits which the petitioner would be entitled to will be calculated and disbursed to the petitioner within a period of four months from the date of receipt of a copy of this judgment. **==> picture [26 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj25/11