Sithara Beegam v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944`** ## **`WP(C) NO. 7652 OF 2022`** ## **`PETITIONER/S:`** ``` SITHARA BEEGAM AGED 32 YEARS D/O. ABDUL AZEEZ.K., HST URDU (PART TIME), K.C.P.HIGHER SECONDARY SCHOOL, KAVASSERY, PALAKKAD -678 543, RESIDING AT KUTTIYIL HOUSE, CHENGANAM, PAYYANAD (P.O), MALAPPURAM-676 122 ``` ``` BY ADV U.BALAGANGADHARAN ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM-695 001` - `2 THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY EDUCATION), HOUSING BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM-695 001` - `3 THE DEPUTY DIRECTOR OF EDUCATION (D.D.E), CIVIL STATION, PALAKKAD-678 001` - `4 THE DISTRICT EDUCATIONAL OFFICER, (D.E.O), CIVIL STATION, PALAKKAD-678 001` - `5 THE MANAGER, K.C.P.HIGHER SECONDARY SCHOOL, KAVASSERY.P.O., PALAKKAD -678 543` - `6 THE HEADMISTRESS, K.C.P.HIGHER SECONDARY SCHOOL, KAVASSERY, PALAKKAD -678 543` - `BY ADV ADVOCATE GENERAL OFFICE KERALA` 2- W.P.(C). No. 7652 of 2022 ## **`OTHER PRESENT:`** ``` SRI.K.M. FAIZAL GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3- W.P.(C). No. 7652 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 7652 of 2022 ============================================================= Dated this the 9[th ] day of February, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“1. Writ in the nature of mandamus commanding the 4[th] respondent to revise the approval of the petitioner as Part Time Urdu with effect from 15.7.2021 with all consequential benefits including arrears of pay and allowances as directed in Ext.P. 10 Govt. Order._ _2. Writ in the nature of mandamus commanding the 4[th] respondent not to initiate any proceedings to recover pay and allowances paid to the petitioner from 6.1.2017 to 15.7.2017_ _3. Declare that the approval of the appointment of the petitioner is liable to be approved with effect from 15.7.2021 as directed in Ext.P.10 Govt. Order and she be disbursed with all monetary benefits including arrears of pay and allowances;_ _4. Such other reliefs that the Hon'ble Court deem fit and proper in the facts and circumstances of the case.” (sic)_ 2. The petitioner was appointed as High School Assistant Part Time Urdu against a retirement vacancy as per Ext.P3. The 4- W.P.(C). No. 7652 of 2022 appointment was approved by the District Educational Officer as per Ext.P3. As per Ext.P8, the approval was cancelled by the 2[nd] respondent for the reason that there is shortage of students. The petitioner challenged the same before this Court. As per Ext.P9 , this Court directed the Government to consider the revision petition within a time frame, after hearing all the parties. Consequently, Ext.P10 order was passed by the Government. As per Ext.P10 it was directed to regularise the service of the petitioner with effect from 15.07.2017 in accordance to GO(P) No.4/2021/G.Edn. dated 06.02.2021. The grievance of the petitioner is that even though Ext.P11 undertaking was given as per GO(P) No.4/2021 was submitted, the consequential order is not passed. Hence, this writ petition. 3. Heard the counsel for the petitioner and the Government Pleader. 5- W.P.(C). No. 7652 of 2022 4. The counsel for the petitioner reiterated the contentions raised in the writ petition. The counsel submitted that here is a case in which the petitioner’s appointment was approved and she receives salary, thereafter the approval was cancelled. Now as per Ext.P10, the Government already directed to regularise service from 15.07.2017. But the same is not implemented stating that the petitioner has to refund the salary already received. That is an injustice and the counsel for the petitioner relied on judgment of this Court in **State of Keala and Others v. P.V. Priya [2021 KHC 473]** , **Syed Abdul Qadir VS State of Bihar [2009(1) Supreme 163]** . The Government Pleader, on the other hand, takes me through paragraphs 4 and 5 of the statement filed by the 4[th] respondent and submitted that as per GO(P) No.4/2021, the regularisation can be only notionally and the petitioner has to refund the amount already received towards salary. 6- W.P.(C). No. 7652 of 2022 5. When this writ petition came up for consideration, this Court stayed the recovery of the salary already paid. This Court perused Ext.P10 order. It will be better to extract the relevant portion of Ext.P10 here: “7) മേൽ വിവരിച്ച സാഹചര്യത്തിൽ 2017-18, 2018-19, 201920 എന്നീ വർഷങ്ങളിൽ ടി സ്കൂളിലെ പാർട ം ഉറുദു തസ്തിക നിലനിൽക്കുന്നുണ എന്നു വിദ്യാഭ്യാസ അധികൃതരുടെ റിപ്പോർട്ടുകളിൽ നിന്നു വ്യക്തമാകുന്നതിനാൽ മറ്റു വിധത്തിൽ ക്രമപ്രകാരമെങ്കിൽ ഹർജിക്കാരിയുടെ നിയമനം 15.7.2017 മുതൽകക പുനഃ ക്രമീകരിചച 06.02.2021 ലെ ജി.ഓ.(പി) 04/2021/പപൊ.വി.വ -ലെ വ്യവസ്ഥകൾ പ്രകാരം അംഗീകരിക്കുന്നതിനുള്ള നിർദ്ദേശം പാലക്കാട് ജില്ലാ വിദ്യാഭ്യാസ ഓഫീസർക്കു നൽകി, ഹർജിക്കാരി സമർപ്പിച്ച എക്സി.പി. 13. റിവിഷൻ ഹർജി തീർപ്പാക്കി. അപ്രകാരം, പാലക്കാട് കാവശ്ശേരി എച കെ .സി.പി. ഹയർ സെ ക്കണ്ടറി സ്‌കൂളിലെ ചഎസ്.റ്റി (പാർട ടൈം) ഉറുദ്ദു ശ്രീമതി.സിതാര ബീഗം ബഹു.കേ രള ഹൈ ക്കോടതി മുൻപാകെ ഫയൽ ചെ യ്ത WP(C) No. 6881/2021 ലെ 17.03.2021 ലെ വിധിന്യായം നടപ്പിൽ വരുത്തി ഉത്തരവ്വപ്പെടുവിക്കുന്നു.” 6. Now the 4[th] respondent contends that as per GO(P) No.4/2021/G.Edn dated 06.02.2021, the regularisation can only be notional and hence the petitioner has to refund the salary 7- W.P.(C). No. 7652 of 2022 already received. It will be better to extract paragraphs 4 and 5 of the counter affidavit filed by the 4[th] respondent here: _“4. It is submit:ed that during the audit of the Deputy Director of Education. Palakkad found that the students strength is not sufficient for sanctioning the High School Assistant Urdu (Part time) post. Accordingly this office approached the Director of General Education for cancellation of the post. The Director of General Education also upheld the audit objection raised by the Deputy Director of Education. Palakkad and granted permission to cancel the post. By that time the petitioner approached the Honourable Court with WP(C)No.6881/2021. Honourable Court disposed of the Writ Petition with direction to the Government to consider the application of the petitioner. In compliance to the same Government Issued order No.5528/2021/G.Edn dated 30.11.2021 by which the Educational Officer is directed to approve the appointment with effect from 15.07.2017 in terms of G.O.(P)04/2021/G.Edn dated 06.02.2021._ _5. It is submitted that as per Government Order dated 06.02.2021, the service from 15.07.2017 to 05.02.2021 can only be treated as notional. This office directed the Headmaster of the school to refund the excess salary and allowances drawn by the petitioner, so that the appointment can be approved with effect from 15.07.2017. Till date the petitioner has not complied, with the above direction.”_ 8- W.P.(C). No. 7652 of 2022 7. It is an admitted fact that the appointment of the petitioner was approved and she worked in the school during the above period. In such situation, in the light of the decision of this Court in **State of Keala and Others v. P.V. Priya [2021 KHC 473]** , **Syed Abdul Qadir VS State of Bihar [2009(1) Supreme 163]** the amount already received need not be refunded, especially because there is no misrepresentation on the part of the petitioner. In such circumstances, according to me, the 4[th] respondent has to take consequential steps based on Ext.P10 without insisting any refund of the salary already received by the petitioner. Therefore, this writ petition is allowed in the following manner: 1. The 4[th] respondent is directed to take consequential steps based on Ext.P10 without insisting any refund of the salary from the petitioner, as expeditiously as 9- W.P.(C). No. 7652 of 2022 possible, at any rate within four months from the date of receipt of a copy of this judgment. 2. The petitioner will produce a certified copy of this judgment together with a copy of this writ petition before the 4[th] respondent for compliance. sd/- **P.V.KUNHIKRISHNAN JUDGE** das 10- W.P.(C). No. 7652 of 2022 ## **`APPENDIX OF WP(C) 7652/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS B3/3688/2015 DATED 08.04.2016 FOR THE YEAR 2015-16 ``` - `Exhibit P2 A TRUE COPY OF THE GOVERNMENT ORDER G.O(P) NO.134/2016/G.EDN DATED 05.08.2016` - `Exhibit P3 A TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 16.01.2017 WITH ENDORSEMENT OF DEO` - `Exhibit P4 A TRUE COPY OF THE CIRCULAR H (2) /34017/2017/D.P.I DATED 20.06.2017` - `Exhibit P5 A TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2017-18 DATED 14.07.2017` - `Exhibit P6 A TRUE COPY OF THE CIRCULAR` - `NO.110/J2/17/G.EDN DATED 15.12.2017 ISSUED BY THE GOVERNMENT` ``` Exhibit P7A TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO 6TH RESPONDENT DATED 08.05.2019 Exhibit P8A TRUE COPY OF THE ORDER NO.RA (1)/30816/2019/D.G.E/D.DIS DATED 23.01.2021 ISSUED BY TH JOINT DIRECTOR GENERAL EDUCATION ``` - `Exhibit P9 A TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED 17.3.2021 IN WPC NO.6881/2021` - `Exhibit P10 A TRUE COPY OF THE GOVERNMENT ORDER NO.GO(MS) 5528/2021/G.EDN DATED 30.11.2021` - `Exhibit P11 A TRUE COPY OF THE UNDERTAKING EXECUTED BY THE MANAGER OF KCP HSS , KAVASSERY DATED 9.12.201 (G.O.(P) NO/.4/2021/G.EDN`