P.K. Sajilatha and P.K. Sathyaprabha v. District Educational Officer, Irinjalakuda; Head Master, H.D.P. Samajam Higher Secondary School, Edathirinji, Irinjalakuda; Manager, H.D.P. Samajam Higher Secondary School, Edathirinji; Deputy Director of Education, Thrissur

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940 WP(C).No. 982 of 2013** ## **PETITIONER(S)** **-------------** - **1 P.K.SAJILATHA, H.S.A (HINDI),** - **H.D.P.HIGH SCHOOL, EDATHIRINJI, IRINHALAKUDA, TRISSUR DISTRICT.** ## **2 P.K.SATHYAPRABHA,** - **H.S.A (PHYSICAL SCIENCE) H.D.P.HIGH SCHOOL, EDATHIRINJI ERINJALAKUDA.** **BY ADV.SRI.M.C.GOPI** ## **RESPONDENT(S):** - **-------------** **1. DISTRICT EDUCATIONAL OFFICER, IRINHALAKUDA, TRISSUR DISTRICT - 680 121.** **2. THE HEAD MASTER,** - **H.D.P. SAMAJAM HIGHER SECONDARY, EDATHIRINJI, IRINJALAKUDA, TRISSUR DISTRICT -680 121.** **3. THE MANAGER,** **H.D.P SAMAJAM HIGHER SECONDARY SCHOOL, EDATHIRINJI, IRINJALAKUDA, TRISSUR DISTRICT -680 121.** **4. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR - 680 005.** **R1& R4 BY GOVERNMENT PLEADER SRI.SUNIL KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 982 of 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 2.6.2008 WITH ITS APPROVAL ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA TO THE 1ST PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2009 WITH ITS APPROVAL ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA TO THE 2ND PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 20.11.2012 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE MANAGER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER WITH APPROVAL OF PETITIONER'S APPOINTMENT AS H.S.A FROM 6.6.94 TO 9.8.94 IN THE HIGH SCHOOL SECTION OF H.D.P.S. HIGH SCHOOL, EDATHIRUNHI, APPROVED BY THE DISTRICT EDUCATIONAL OFFICER, IRINHALAKUDA DATED 4.3.1995.** ## **RESPONDENT(S)'EXHIBITS - NIL** **-----------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS 17.07.2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.982 of 2013-W ------------------------------------------- _Dated this the 10[th] day of July, 2018_ ## _**JUDGMENT**_ The petitioners, who are working as HSAs in H.D.P.High School, Edathirinji, an aided High School governed by the Kerala Education Rules, are aggrieved by the denial of salary to them on account of an objection raised by the Accountant General. 2. The 1[st] petitioner was initially appointed as a UPSA in the 3[rd] respondent's school on 2.6.1997. While working there with approval, a vacancy of HSA (Hindi) arose in the School, on retirement of one Smt.Valsala, the regular incumbent in the post of HSA (Hindi), on 31.3.2008. The 1[st] petitioner was appointed against that vacancy as per Ext.P1 order w.e.f 2.6.2008 by promotion. Her appointment was approved as per endorsement in Ext.P1 dated 16.10.2008 of the DEO, Irinjalakuda. The 2[nd] petitioner was initially appointed as HSA in the 2[nd] respondent's school for the period from 6.6.1994 to 09.08.1994 which was already approved. It is stated that she had been working as UPSA from 1995 onwards and while working so, she got appointment as HSA on 1.6.09. Her appointment as per Ext.P2 order as HSA (Physical Science) from 1.6.09 was approved as per endorsement dated 7.10.2009 in Ext.P2 order of the DEO, 2 W.P(C) No.982 of 2013-W Irinjalakuda. While continuing so, the District Education Officer informed the Manager as well as the Headmistress that the Accountant General has raised certain objections against the approval granted to the appointment of the petitioners and therefore their salary shall be withheld pending rectification of the objections raised against it. In the report produced along with the letter dated 20.11.2012 of the District Education Officer, the extract of the objections raised in the audit was furnished. As per this report it was stated that the vacancies in newly opened schools are to be filled up by appointing protected teachers as per G.O(P).No.178/02/G.Edn. dated 28.6.2002 and as per G.O(P).No.46/06/G.Edn. dated 1.2.2006, at least one protected teacher ought to have been appointed in the school. Therefore, it was stated that the vacancy arose when the protected teacher was relieved to join the parent school shall be filled up by appointing a protected teacher, in case there are no claimants under Rule 43/51A. It was further stated that in the 2[nd] respondent's school which was opened in the year 1979, no protected teacher was appointed. However, appointments were seen approved by the DEO in violation of the Government orders. In the case of the petitioners it was stated that their approvals were not in order. Ext.P3 letter was issued in 3 W.P(C) No.982 of 2013-W the light of the aforesaid audit objections. 3. The Manager, on receipt of the audit objection, submitted Ext.P4 representation dated 12.12.2012 before the DEO in which it was stated that one Smt.K.K.Rosily, HSA (Malayalam), who is a protected teacher, was already appointed in the school. However, since she got absorption in the parent school itself, she was relieved. The Manager stated that the Deputy Director of Education, Thrissur did not provide any list of protected teachers subsequent to that. It was also pointed out that in the absence of a list from the Deputy Director of Education the Manager cannot be accused for not appointing a protected teacher in the school. Therefore, it was requested to take steps as per letter dt.11.11.2005 and 15.2.2006 respectively to release the salary of the petitioners. However, no action was taken thereafter. The petitioners approached this Court at that stage. 4. This Court as per order dated 14.3.2013 directed the respondents to draw and disburse the salary and allowances to the petitioners from November, 2012 onwards and to continue the same until the disposal of the writ petition. Thus the petitioners are getting their salary. 5. The 1[st] respondent has filed a counter affidavit supporting the 4 W.P(C) No.982 of 2013-W impugned order. It is stated that after approval was granted to the petitioners by the DEO, Irinjalakkuda as per letter dt.11.11.2005 and 15.2.2006 respectively, the Accountant General had raised objections to the effect that the petitioners were appointed in violation of the Government orders issued on 28.6.2002 and 1.2.2006 and that the vacancy should have been filled up by appointing at least one protected teacher. 6. The case of the petitioners is that the petitioners are Rule 43 as well as 51A claimants and therefore the objection raised by the Accountant General itself is unsustainable. As against the contention of the petitioners that they are having prior approved service in the very same school and their appointments were not liable to be objected or cancelled, there is no specific answer to that contention. It is also their contention that the Deputy Director of Education had not furnished any list of protected teachers so as to enable the Manager to make appointment of a protected teacher. The respondents have not disputed the fact that the petitioners are Rule 43 or 51A claimants. Ext.P3 objection is raised on the ground that a protected teacher is not appointed in the school and as per the Government orders issued in 2002 and 2006, except when any Rule 43 and 51A claimants are available the vacancy 5 W.P(C) No.982 of 2013-W shall be filled up by appointment of protected teachers. Therefore, those orders will not apply in the case of the petitioners who are promoted under Rule 43 and appointed under Rule 51A of Chapter XIVA KER. 7. Moreover, the respondents do not have any case that the Deputy Director of Education had furnished any list of protected teachers to the Manager for deployment of protected teachers. It is now settled law by way of the judgment in _**Nadeera v. State of Kerala**_ [2011 (3) KLT 790] that unless the Deputy Director of Education furnished the list of protected teachers the manager or the teachers cannot be made to suffer on the ground that a protected teacher was not appointed. Similarly, this Court has in _**Usuvathunnisa v. Asst. Educational Officer**_ : 1990 (2) KLT 530 held that the salary cannot be withheld in the case of teachers who are continuing with approval. Similarly in _**Somanatha Panicker v. State of Kerala**_ : 1997 (1) KLT 305 _**,**_ this court has held that the Accountant General do not have any authority to object the appointments and approvals when there are sufficient safeguards in the KER and it is for the statutory authorities to look into the legality of orders of appointment and approval. In view of the aforesaid judgment also, the objections raised by the Accountant General as well as 6 W.P(C) No.982 of 2013-W the action of the DEO in withholding the salary of the petitioners against sanctioned posts are illegal and arbitrary, especially when the petitioners are statutory claimants under Rules 43 as well as 51A. In the above circumstances, Ext.P3 as well as the audit objections are set aside. The writ petition is allowed accordingly. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_