MANAGER, NIDUVALOOR A.U.P. SCHOOL, CHUZHALI PO., KANNUR vs. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940 WP(C).No.38875 of 2015** ## **PETITIONERS:** - **1 MANAGER, NIDUVALOOR A.U.P SCHOOL CHUZHALI PO, KANNUR 670142** - **2 SHYLAJA KV ASSISTANT TEACHER (UPSA), NIDUVALOOR A.U.P. SCHOOL, CHUZHALI PO, KANNUR 670142** - **3 SMITHA V W/O.BIJU M, UPPER PRIMARY SCHOOL ASSISTANT, NIDAVALOOR AUP SCHOOL, CHUZHALI PO, KANNUR 670142 BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVNANATHAPURAM 695001** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 695001** - **3 DEPUTY DIRECTOR OF EDUCATION KANNUR 670001** - **4 DISTRICT EDUCATIONAL OFFICER TALIPARAMBA 670141** - **5 ASSISTANT EDUCATIONAL OFFICER IRIKKUR 670593 BY GOVERNMENT PLEADER SRI. S. DILEEP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)No.38875 of 2015** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners seek to quash Exts.P8, P9 and P13 orders issued by the educational authorities, regulating the appointments of Upper Primary School Teachers ('UPSAs', for short) including those of petitioners 2 and 3, in the school managed by the 1[st] petitioner. 2. The facts as emanating from the pleadings in the writ petition are as follows:- 1[st] petitioner is Manager of Niduvaloor A.U.P. School. When vacancies arose, the Manager appointed 2[nd] petitioner as UPSA on 04.06.2004 and 3[rd] petitioner on 07.01.2005. The 2[nd] petitioner had short-duration service in the school during 2001-2002. However, these appointments appear to have been made overlooking the superior claims of one Smt.K.Thankamani and one Smt.K.K.Sathi. Hence, **WP(C)No.38875 of 2015** **3** approval to appointments of petitioners 2 and 3 was rejected by educational authorities on 12.05.2005. 3. The said K.K.Sathi was later appointed as UPSA with effect from 04.10.2005. Though the said K.K.Sathi filed W.P.(C) No.32695/2006 seeking approval to her service from 1997, the claim was repelled by this Court. Smt.Thankamani filed W.P.(C) No.27067/2007 and this Court as per Ext.P1 judgment directed the 1[st] petitioner to appoint Thankamani against the vacancy to which the 2[nd] petitioner was appointed on 04.06.2004. This Court further held that it is open to the Manager to arrange the appointments in later vacancies so as to protect the right of the 2[nd] petitioner. Pursuant to the judgment in W.P.(C) No.27067/2007, the Manager appointed Smt.Thankamani with effect from 05.12.2012 against the vacancy which arose on 31.03.2004. The 5[th] respondent - AEO, as per Ext.P4 order dated 27.01.2014, approved the service of Thankamani notionally with effect from 04.06.2004 without monetary benefits, and with effect from 22.01.2013, the **WP(C)No.38875 of 2015** **4** date of her actual joining of duty, with monetary benefits. 4. To regulate the appointments of 2[nd] and 3[rd] petitioners, the Manager submitted Exts.P6 and P7 applications for approval of appointment of petitioners 2 and 3 with effect from 04.06.2004 and 07.01.2005 respectively. These applications were rejected by the AEO as per Exts.P8 and P9 dated 04.07.2014 on the ground that the vacancies to which petitioners 2 and 3 are proposed to be appointed were not available vacancies. Aggrieved, petitioners 2 and 3 filed revision petitions dated 04.08.2014 under Rule 92 of Chapter XIV A KER, before the Government. In Ext.P12 judgment in W.P.(C) No.21888/2014 filed by petitioners 2 and 3, this Court directed the 1[st] respondent - State of Kerala to consider Exts.P10 and P11 revisions filed by petitioners 2 and 3. The Government, however, as per Ext.P13 order dated 03.06.2015, rejected the revision petitions holding that the approval of 2[nd] petitioner's appointment could be considered only after 04.10.2005. The Government further gave the **WP(C)No.38875 of 2015** **5** ## following directions:- _“(a) Approve the appointment of Smt.Shylaja w.e.f. 04.10.2005 by shifting her appointment to the vacancy of Sri.Madusoodhanan._ _(b) To take disciplinary action against the DDE, Kannur for his inaction in forwarding the list of protected teachers to the school even after it was newly upgraded._ _(c) To initiate action against the manager as per Rule 7(4) of Chapter III KER since all the appointments effected by the Manager were overlooking the statutory claimants under Rule 51A since it has caused monetary loss to Government and Teacher._ _In case of Smt.Smitha V., there is no vacancy to get her accommodated and hence the appeal petition Ext.P11 is rejected.”_ The aforesaid Ext.P13 order in revision is under challenge. 5. The 5[th] respondent - AEO opposed the writ petition filing counter affidavit. The 5[th] respondent stated that the 1[st] petitioner - Manager has made appointments of petitioners 2 and 3 overlooking superior claims of other **WP(C)No.38875 of 2015** **6** teachers. The Manager has exercised the authority which is not vested in her. Due to the irregular appointments, Smt.Thankamani has suffered monetary loss. The delay in giving appointment to the said Thankamani occurred since petitioners 2 and 3 were appointed to the vacancies. The irregular appointments have caused great financial loss to the said teacher. Therefore, if salary is paid to the petitioners for the period they have illegally worked, it would amount to sanctioning legal right for transgression. Further more, judgment in W.A. No.1385/2014 of Smt.Sathi seeking approval of her appointment from 1997, is awaited. 6. I have heard the arguments raised on either side and perused pleadings. It is admitted fact that 2[nd] petitioner was appointed as UPSA on 04.06.2004 and the 3[rd] petitioner on 07.01.2005. Their eligibility to get appointed against those vacancies is found against them by the respondents. However, in Ext.P1 judgment in W.P.(C) No.27067/2007, this Court while examining the matter and upholding the claim of Smt.Thankamani, held that it is open **WP(C)No.38875 of 2015** **7** to the Manager to re-arrange the appointments in later vacancies now available, to protect the right of the 2[nd] petitioner. The Government, by Ext.P4 order dated 27.01.2014, approved the service of Smt.Thankamani only notionally from 04.06.2004 to 21.01.2013 without monetary benefits and monetary benefits were made eligible to her only from 22.01.2013, the date of actual joining duty in the school. The 2[nd] petitioner has been actually working during this period and her appointment stands approved with effect from 04.10.2005. The question is of payment of salary to the petitioner from 04.06.2004 to 04.10.2005. Smt.Thankamani has not worked for the period from 04.06.2004 to 21.01.2013 and the 5[th] respondent has declined salary to said Thankamani, as per Ext.P4 order and only notional service has been recognised for the service of Thankamani for the said period. This has been taken note of by the Government in Ext.P13 order also. A Division Bench of this Court has held in the judgment in _**Bindu Thomas v. State of Kerala and others** [2008 (1)_ **WP(C)No.38875 of 2015** **8** _KLT 89]_ that a teacher who has not worked in a post would not be entitled to salary for the period she has not worked and one who has actually worked is entitled to salary. The respondents have no case that dissatisfied by grant of such notional service, Smt.Thankamani has filed appeal or has resorted to any litigation. In the circumstances, I find that there is no justification for respondents not to pay salary to the 2[nd] petitioner for the period she has actually worked. 7. As regards 3[rd] petitioner, the contention of the petitioners is that since Smt.K.K.Sathi has been given regular appointment only with effect from 04.10.2005, if the appointment of the 2[nd] petitioner is approved from 04.06.2004 for the purpose of salary alone, the 3[rd] petitioner can be accommodated with effect from 07.01.2005 to 31.03.2010 in the termination vacancy of Sri.Madhusoodanan, for the purpose of payment of salary. I find this is a matter to be looked into in view of the fact that as per judgment in W.A. No.1385/2014 dated 22.01.2016, this Court has directed the Government to consider the **WP(C)No.38875 of 2015** **9** eligibility of Smt.K.K.Sathi to get appointed against a vacancy of UPSA arose prior to 04.10.2005. The decision of the Government in that regard is not known. The 3[rd] petitioner has rendered service as UPSA during the period in question. Now that W.A. No.1385/2014 filed by Smt.K.K.Sathi claiming prior date of approval for service stands disposed of with directions, the claim of the 3[rd] petitioner also needs consideration. 8. In the circumstances, it is declared that the 2[nd] petitioner is entitled to get approval of appointment with effect from 04.06.2004, for the purpose of payment of salary alone, till the date of her approved appointment as UPSA. The respondents are directed to pass consequential orders allowing payment to the 2[nd] petitioner, within 90 days. The 5[th] respondent is directed to consider the claim of the 3[rd] petitioner for payment of salary for the period from 07.01.2005 till 01.06.2010. It is made clear that unless it will result in double payment of salary if the 3[rd] petitioner is given salary during this period, the 3[rd] petitioner shall be **WP(C)No.38875 of 2015** **10** made available salary for the period during which the 3[rd] petitioner has actually worked as UPSA. A decision in this regard shall be taken by the 5[th] respondent within a period of 90 days. Ext.P13 order is interfered with, to the above limited extent. It is made clear that directions (a) to (c) given by the 1[st] respondent in Ext.P13 will remain in force. The writ petition is disposed of with the above directions. Sd/- **N. NAGARESH, JUDGE** aks/15.07.2019 **WP(C)No.38875 of 2015** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 09.01.2012 IN WPC.NO.27067/2007 EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 05.12.2012 EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 18.10.2013** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.01.2014** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 04.02.2014 IN WPC.NO.27329/2014** **EXHIBIT P6 TRUE COPY OF THE PROPOSAL WITH RESPECT TO THE 2ND PETITIONER** **EXHIBIT P7 TRUE COPY OF THE PROPOSAL WITH RESPECT TO THE 3RD RESPONDENT** **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 04.07.2014 PERTAINING TO THE 2ND PETITIONER** - **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 04.07.2014 PERTAINING TO THE 3RD PETITIONER** - **EXHIBIT P10 TRUE COPY OF THE REVISION PETITION FILED BY THE 2ND PETITIONER BEFORE THE GOVERNMENT** - **EXHIBIT P11 TRUE COPY OF THE REVISION PETITION FILED BY THE 3RD PETITIONER BEFORE THE GOVERNMENT** **WP(C)No.38875 of 2015** **12** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 26.09.2014 IN WPC.NO.21888/2014 EXHIBIT P13 TRUE COPY OF THE GO(RT) NO.2172/15/G.EDN DATED 03.06.2015 EXHIBIT P14 TRUE COPY OF THE APPOINTMENT ORDER SUBMITTED BEFORE THE EDUCATIONAL OFFICER FOR APPROVAL.**