Mereena V.P. v. Deputy Director (Education), Civil Station, Kakkanad, Ernakulam; District Educational Officer, Aluva; Manager, St.George's Church Corporate Educational Agency, Puthenpally, Varapuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933** **WPC.No. 11099 of 2010 (J)** **==================** ## **PETITIONER** **========** **1. SMT.MEREENA V.P., HIGHER SCHOOL ASSISTANT (SS) ST.GEORGE'S HIGH SCHOOL,PUTHENPALLY, VARAPUZHA.** **BY ADV.SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE** **RESPONDENT** **=========** **1. THE DEPUTY DIRECTOR (EDUCATION), CIVIL STATION, KAKKANAD, ERNAKULAM.** ## **2. THE DISTRICT EDUCATIONAL OFFICER, ALUVA.** **3. THE MANAGER, ST.GEORGE'S CHURCH CORPORATE EDUCATIONAL AGENCY, PUTHENPALLY, VARAPUZHA-P.O., PIN 683517.** **BY GOVERNMENT PLEADER SMT. LOWCY .A** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **WPC.No. 11099 of 2010 (J) ---------------------------------** ## **APPENDIX ------------** ## **PETITIONER'S EXHIBITS** **----------------------------** **EXT.P1. COPY OF G.O. (MS) NO.275/99/G.EDN. DATED 9.11.1999 ISSUED BY THE GOVERNMENT.** ## **EXT.P2. COPY OF ORDER NO.B5-653509/K.DIS. DATED 3.10.2009 ISSUED BY THE 2ND RESPONDENT.** ## **EXT.P3. COPY OF APPEAL PETITION DATED 5.10.2009 SUBMITTED BY THE PETITIONER BEFORE THE 1T RESPONDENT.** **EXT.P4. COPY OF ORDER NO.B5/6378/09/D.DIS. DATED 16.9.2009 ISSUED BY THE 2ND RESPONDENT.** **EXT.P5. COPY OF APPEAL PETITION DATED 8.10.2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P6. COPY OF JUDGMENT DATED 13.10.2009 IN W.P.(C) NO.28784 OF 2009.** **EXT.P7. COPY OF ORDER NO.B3-20545/09/D.DIS. DATED 26.11.2009 ISSUED BY THE 1ST RESPONDENT.** ## **EXT.P8. COPY OF ORDER NO.7/2009-2010 DTED 14.12.2009 ISSUED BY THE 3RD RESPONDENT.** **EXT.P9. COPY OF ORDER NO.B54/9799/09/D.DIS. DATED 14.01.2010 ISSUED BY THE 2ND RESPONDENT.** **EXT.P10. COPY OF APPEAL PETITION DATED 29.01.2010 SUBMTTED BY THE 3RD RESPONDENT AGAINST EXHIBIT P9.** **EXT.P11. COPY OF ORDER NO.B3-1869/01/D.DIS. DATED 19.3.2010 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS : NIL** ## **-------------------------------** **/ TRUE COPY /** ## **P.A. TO JUDGE** ## **VK** **T.R. RAMACHANDRAN NAIR, J. --------------------------------------W.P.(C) No.11099 OF 2010 --------------------------------------Dated this the 5[th] day of January, 2012.** ## **J U D G M E N T** The limited question herein is whether the order impugned restricting approval of appointment of the petitioner as High School Assistant from 14.12.2009 is justified in the light of the direction in Ext.P7 order by the very same authority to appoint the petitioner as H.S.A from 01.06.2009 against the retirement vacancy. 2. The facts of the case show that the petitioner was initially appointed in a leave vacancy as High School Assistant from 17.09.1998 to 23.11.1998 which was approved and thus the petitioner became a claimant under Rule 51A of Chapter XIVA of Kerala Education Rules. A permanent vacancy arose when one Smt.Mary P.J. retired on 31.03.2009. It is submitted that overlooking the claim of the petitioner, another U.P.S.A namely, Sri.Paul C.P. was promoted as he was a Rule 43 claimant and the **W.P.(C) No.11099/2010** **2** petitioner was appointed as U.P.S.A against the promotion vacancy of Sri.Paul C.P. Even though the petitioner did not succeed before the District Educational Officer as evident from Ext.P2, she challenged the same before the Deputy Director of Education in appeal and finally by Ext.P7 order, the appeal was allowed. Therein, the order passed by the District Educational Officer was set aside and the Manager was directed to appoint the petitioner as H.S.A (Social Science) from 01.06.2009 against the retirement vacancy. Thereafter, the Manager appointed the petitioner as per Ext.P8 order as H.S.A (Social Science) with effect from 01.06.2009 in compliance with Ext.P7 order. 3. The District Educational Officer, on the plea that the proposal for approval of appointment is delayed, rejected the same by Ext.P9 order which was challenged by the Manager before the Deputy Director by Ext.P10 appeal. Learned counsel for the petitioner submitted that the petitioner was a rightful claimant under Rule 51A of Chapter XIV-A K.E.R and the said claim was finally adjudicated in favour of the petitioner by the Deputy Director of Education in Ext.P7 order. It is further pointed **W.P.(C) No.11099/2010** **3** out that any claim under Rule 43 is only subject to Rule 51A and therefore accepting the said claim, the Deputy Director of Education directed appointment of the petitioner in the vacancy which arose on 01.06.2009 and the said order has become final. It is also pointed out that the District Educational Officer was not correct in his conclusion that there is delay in submitting the proposal for approval of appointment. It is pointed out that after Ext.P7 order was received by the Manager, the petitioner was appointed by Ext.P8 order dated 14.12.2009 and forwarded the papers to the District Educational Officer and it was received by the said officer on 19.12.2009 as evident from Ext.P9 order itself, and hence there was no delay also. 4. I find force in the submission that the view taken in Ext.P9 itself is not correct. Evidently, the Manager forwarded the proposal for approval within two days of appointment. The District Educational Officer took the view that since the appointment is effective from 01.06.2009, there is a delay. Evidently, the same cannot be accepted and the order was rightly set aside by the Deputy Director of Education in the appeal filed **W.P.(C) No.11099/2010** **4** by the Manager as evident from Ext.P11 order. 5. But, while allowing the appeal, the Deputy Director of Education took the view that since the petitioner was actually appointed as H.S.A by order dated 14.12.2009 and as she had not worked in that cadre from 01.06.2009, she is not entitled for any salary in the cadre of H.S.A as she has not performed duties in that cadre. Accordingly, a direction was given to the District Educational Officer to approve the appointment of the petitioner as H.S.A from 14.12.2009. 6. Unlike a case wherein the appointment is delayed for some reason and the party concerned had not actually started performing the duties in view of the various circumstances and starts performing duty only after the appointment, here is a case where the petitioner was denied appointment illegally by promoting another and the right of the petitioner was clearly found in her favour by the Deputy Director of Education in the light of Rule 51A of Chapter XIV-A of Kerala Education Rules. 7. The petitioner was actually appointed as U.P.S.A in the school from 01.06.2009 after promoting Sri.C.P.Paul. Now he **W.P.(C) No.11099/2010** **5** stands reverted as U.P.S.A and the petitioner is promoted from 01.06.2009 itself. The appointment was illegally denied and the legal right of the petitioner was secured by the competent authority by giving due declaration that the denial is bad in law. Hence the person concerned will have to be granted all the benefits. 8. Unlike a case wherein notional benefit alone is granted, herein the Deputy Director of Education did not restrict the right of the appointment of the petitioner from 01.06.2009 or deny monetary benefits by Ext.P7 order. Therefore, he could not have varied the effect of Ext.P7 order while issuing Ext.P11 order. 9. The issue raised before the Deputy Director of Education at the subsequent stage was only regarding the denial of approval by the District Educational Officer, that too illegally. He has rightly interfered with the order passed by the District Educational Officer but with a wrong assumption that the petitioner is not entitled for payment of salary as she has not performed duties in the cadre of H.S.A. The approval is now restricted from 14.12.2009. When the right of the petitioner for **W.P.(C) No.11099/2010** **6** appointment is declared to be effective from 01.06.2009, at any stretch of imagination, the approval cannot be restricted from 14.12.2009. The vacancy arose on 01.06.2009, being a retirement vacancy. Therefore, the petitioner cannot be a looser as far as the period of service from 01.06.2009 to 14.12.2009 and the denial of monetary benefits for the said period are concerned. The legal position as to whether a person who is wrongly denied appointment or promotion is entitled for various benefits is clear from the decision of a Division Bench of this Court in _**Sivarajan** vs._ _**State of Kerala**_ (1993 (2) KLT 287). In that view of the matter, this writ petition is allowed. Ext.P11 to the extent to which it denies approval of appointment from 01.06.2009 and monetary benefits to the petitioner in the post of H.S.A is quashed. It is declared that the petitioner is entitled for approval from 01.06.2009 in terms of Ext.P7 order and also in terms of the appointment made by the Manager as per Ext.P8. There will be a direction to the District Educational Officer to pass consequential orders approving the appointment of the petitioner as directed above within a period of one month **W.P.(C) No.11099/2010** **7** from the date of receipt of a copy of this judgment. The petitioner will be granted the monetary benefits also. This writ petition is allowed as above. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp