Smt. Suma Chandranath v. State of Kerala and others (WA Nos. 1428 of 2021 & 157 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 WA NO. 1428 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 10127/2011 OF HIGH COURT OF KERALA - APPELLANT/RESPONDENTS 1 4 IN WP(C):** 1 STATE OF KERALA SECRETARY, DEPARTMENT OF EDUCATION. SECRETARIAT, THRIUVANANTHAPURAM. 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. (THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM) 3 THE DEPUTY DIRECTOR OF EDUCATION,KANNUR. 4 THE ASSISTANT EDUCATIONAL OFFICER,THALASSERY. BY SRI.A.J.VARGHESE, SR. GOVERNMENT PLEADER ## **RESPONDENTS:** 1 SUMA CHANDRAMBATH AGRICULTURE AND GARDENING TEACHER, PALAYAD BASIC UP SCHOOL, PALAYAD P.O, KANNUR (RESIDING AT CHITTARIKAL HOUSE, PALAYAD P.O, THALASSERY, KANNUR DISTRICT). 2 THE MANAGER PALAYAD BASIC UP SCHOOL, PALAYAD P.O, KANNUR -670661. BY BY PRANOY K.KOTTARAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, ALONG WITH WA.157/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA Nos. 1428 of 2021 & 157 of 2022 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 WA NO. 157 OF 2022** **AGAINST THE ORDER/JUDGMENT IN WP(C) 10127/2011 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/RESPONDENT NO.5 IN WP(C):** THE MANAGER PALAYAD BASIC U.P.SCHOOL, PALAYAD P.O.,KANNUR-670 661. BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 5:** 1 SUMA CHANDRANATH, AGRICULTURE AND GARDENING TEACHER, PALAYAD BASIC, U.P.SCHOOL, PALAYAD P.O., KANNUR., (RESIDING AT CHITTARIKKAL HOUSE, PALAYAD P.O.,, THALASSERY, KANNUR DISTRICT). 2 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF EDUCATION,, SECRETARIAT, THIRUVANANTHAPURAM. 695 001. 3 THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. - 695 001. 4 THE DEPUTY DIRECTOR OF EDUCATION, WA Nos. 1428 of 2021 & 157 of 2022 3 KANNUR- 670 001. 5 THE ASSISTANT EDUCATIONAL OFFICER, THALASSERY., 670 101. BY ADV.PRANOY.K.KOTTARAM(B/O) ## **OTHER PRESENT:** BY SRI.A.J.VARGHESE, SR. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, ALONG WITH WA.1428/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA Nos. 1428 of 2021 & 157 of 2022 4 ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **------------------------------------------------------------------** WA Nos. 1428 of 2021 & 157 of 2022 -------------------------------------------Dated this the 24[th] day of May, 2022 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J. Both these writ appeals, the first by the State Government and the second by the Manager of the Palayad Basic U.P. School, impugn the judgment dated 23.2.2021 of a learned single Judge in WP(C)No.10127/2011. The brief facts necessary for the disposal of the writ appeals are as follows: The petitioner in WP(C)No.10127 of 2011, Smt. Suma Chandranath, was apparently appointed as an Agricultural and Gardening Teacher in the Palayad Basic U.P. School, Palayad, with effect from 14.06.1990. The said appointment was however not approved by the educational authorities on the ground that there was no sanctioned post of craft teacher in the staff fixation order passed in relation to the school for the academic year 1990-1991. It was the case of the educational authorities that during the said year the effective strength in the U.P. section of the school was only 159, which did not warrant the sanction of any specialist teacher post . Against the order denying approval to the appointment, the writ petitioner carried the matter in further appeals and revision and finally by an order dated 16.7.1996 the revision petition preferred by the petitioner was rejected by the Government. We are given to understand that against the said order of the Government in the revision petition no further WA Nos. 1428 of 2021 & 157 of 2022 5 proceedings were carried by the writ petitioner and hence the said order became final in as much as the petitioner was concerned. 2. In the writ petition it was the case of the petitioner that notwithstanding the finality of the Government Order dated 16.7.1996, when it came to the notice of the writ petitioner that several persons, similarly situated as her, had obtained favourable orders in the matter of approval of their appointments from the Government, the petitioner along with some other similarly situated persons filed a representation before the Government followed by a writ petition, O.P. No.5297 of 2002 before this Court seeking a direction to the Government to consider the said representation. While the said writ petition was disposed by a judgment directing the Government to consider the matter, the Government by Ext.P3 order dated 19.2.2004 rejected the request of the petitioners and others similarly placed for approval of their appointment. Apparently, the petitioner thereafter continued her efforts to get the appointment approved and through information received pursuant to an RTI enquiry, the petitioner came to know of approvals granted to the appointment of others similarly situated by the Government. Placing reliance on the said information, the petitioner once again approached this Court through the writ petition aforementioned praying _inter alia_ for a declaration that the appointment of the petitioner on 14.6.1990 was liable to be approved with effect from the date of appointment of the petitioner and also for a direction to quash Ext.P3 order by which the Government had rejected the representation of the petitioner and others similarly placed for approval of their appointments. There was a further prayer for a direction to the respondents to pay to the petitioner the WA Nos. 1428 of 2021 & 157 of 2022 6 salary for the period during which she had worked as an Agricultural and Gardening Teacher in the school. 3. Through a counter affidavit filed by the State Government in the writ petition, it was pointed out that there was no post of specialist teacher sanctioned in the school during the academic year 1991 or thereafter on account of the shortage of the required student strength. It was contended therefore that the appointment of the petitioner as a specialist teacher was illegal and that the said illegality was pointed out and confirmed through the various orders passed by the educational authorities. The stand of the State Government therefore was that there was no merit in the contention of the writ petitioner that her appointment had to be approved or that she had to be paid the salary and emoluments pursuant to the said appointment for the years she had actually worked as a specialist teacher in the school. 4. A reply affidavit was also filed by the petitioner rebutting the averments in the counter affidavit filed on behalf of the State. 5. The learned singe Judge, who considered the matter accepted the contention of the learned Government Pleader that there was no scope for approving the appointment of the petitioner as specialist teacher in the school. He however placed reliance on the judgment of the Full Bench of this Court in **Jolly v. State of Kerala** [2003(2) KLT 192] to find that in as much the petitioner had actually worked in the school notwithstanding the fact that there was no sanctioned post to accommodate her in that school, the Government was WA Nos. 1428 of 2021 & 157 of 2022 7 obliged to pay the salary and emoluments due to the petitioner for the period actually worked in the school with liberty to recover the same from the manager after affording an opportunity of being heard to the manager in terms of the Kerala Education Act and Rules. 6. It is aggrieved by the direction to pay salary and emoluments to the petitioner for the period she worked in the school in question that the Government has preferred the writ appeal before us. The writ appeal preferred by the manager of the school is against the direction in the impugned judgment that requires the manager to ultimately bear the burden of the amounts directed to be paid to the writ petitioner by the Government. The point to be decided in this writ appeal is whether the writ petitioner is entitled to be paid any amount towards salary and other emoluments for the period that she actually worked in the school concerned as a specialist teacher, and if so who should make that payment. 7. We have heard Sri. Elvin Peter, the learned counsel appearing for the Manager in WA.No.157 of 2022, Sri. Varghese, the learned senior Government Pleader appearing for the Government in WA No. 1428 of 2021 and Sri. Pranoy K. Kottaram, the learned counsel appearing for the writ petitioner. 8. On a consideration of the rival submissions, we find ourselves unable to sustain the impugned judgment of the learned single Judge except to the limited extent hereinafter indicated. As already noticed, while the writ petitioner was appointed as a specialist teacher in the school with effect from 14.6.1990, WA Nos. 1428 of 2021 & 157 of 2022 8 there was no approval granted to the said appointment by the educational authorities at any stage. Even if one were to hold that the period spent pursuing litigation in respect of the legality of the appointment should enure to the benefit of the teacher concerned, that period came to an end on 16.7.1996 when admittedly the revision petition preferred by the writ petitioner was dismissed by the Government. Admittedly, the writ petitioner did not carry the matter in any further proceedings before this Court. The further attempts by the writ petitioner appear to have been to try and obtain the benefit of Government Orders allegedly passed in respect of persons similarly situated, granting approval to their appointment as specialist teachers in various schools. While we have not been shown any material that would suggest that the writ petitioner was entitled to the benefit granted to those teachers, we also note that at any rate there is no specific order in favour of the writ petitioner that is produced in these proceedings to justify such a claim. In the absence of any such order, we have to go by the last order passed against the writ petitioner which is the order dated 16.7.1996 of the Government rejecting her revision petition. After that date, the writ petitioner cannot be seen as having any right to continue as a specialist teacher in the school and if she has continued to work in the school even thereafter, she must be seen as having done so at her risk and cost. 9. For the period from 14.6.1990 to 16.7.1996 however, we find that the appointment of the writ petitioner was apparently made by or on behalf of the manager of the school and her continuance till 16.7.1996 as a teacher of the school can be probably justified on the ground that, that was the period during which she was actually pursuing the case for approval of the said appointment. WA Nos. 1428 of 2021 & 157 of 2022 9 For the said period we also feel that the writ petitioner may be able to get the benefit contemplated in the judgment of the Full Bench of this Court in **Jolly v. State of Kerala** (supra). To that extent alone, therefore, we find that the directions of the learned single Judge in the impugned judgment can be justified. 10. We may hasten to add at this stage that Sri.Elvin Peter, the learned counsel appearing for the manager did point out that the writ petition itself could not have been maintained more so when the claim therein was for a payment of salary directly by the manager under circumstances where the manager had permitted the writ petitioner to continue as a teacher notwithstanding the finding of the educational authorities that there was no sanctioned post in the school to accommodate her. Such a claim, according to Sri.Elvin Peter could have been only in a civil suit. While there is merit in the said contention of Sri.Elvin Peter, we find that the said contention may have relevance only if we were to confirm the directions of the learned single Judge for the period after 16.7.1996. As already noticed above, we have chosen not to grant the petitioner the said benefit for the period after 16.7.1996. To relegate the writ petitioner to a civil court for recovery of amounts from the manager for the period prior to 16.7.1996 at this belated stage, would in our view be wholly inequitable considering the peculiar facts of this case. 11. In the result, we modify the directions in the impugned judgment of the learned single Judge and direct the Government to pay the salary and emoluments due to the petitioner for the period that she worked in the school between 14.6.1990 and 16.7.1996. We make it clear that the said WA Nos. 1428 of 2021 & 157 of 2022 10 amounts paid by the Government at first instance can be recovered from the manager of the school, the appellant in WA No.157 of 2022. We further hold that the writ petitioner shall not be entitled to any amount for the period, if any, that she worked in the school after 16.7.1996, the date on which her revision petition was rejected by the Government. The amounts directed to be paid to the petitioner as above shall be disbursed to her by the Government within three months from the date of receipt of a copy of this judgment. The writ appeals are disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR,** **JUDGE** Sd/- **MOHAMMED NIAS C.P.,** **JUDGE** dlk 24.5.22 WA Nos. 1428 of 2021 & 157 of 2022 11 ## **APPENDIX OF WA 157/2022** PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF THE DEATH CERTIFICATE OF SMT MADHAVI AMMA, THE THEN MANAGER OF THE SCHOOL. Annexure A2 TRUE PHOTO COPY OF THE ORIGINAL OF THE COMMUNICATION DATED 14.06.1990 ALLEGED TO HAVE BEEN SENT BY THE MANAGER TO THE ASSISTANT EDUCATIONAL OFFICER SEEKING APPROVAL OF APPOINTMENT OF THE 5TH RESPONDENT AS CRAFT TEACHER (AGRICULTURAL OF GARDENING). Annexure A3 TRUE COPY OF THE EFFECTIVE STUDENT STRENGTH SENT AS ON THE 6TH WORKING DAY OF THE SCHOOL DATED 11.06.190 SENT BY THE THEN HEADMASTER OF THE SCHOOL SRI.P.V. RAJU. WA Nos. 1428 of 2021 & 157 of 2022 12 ## **APPENDIX OF WA 1428/2021** PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF G.O(MS) NO.154/89/G.EDN DATED 22.08.1989. Annexure A2 TRUE COPY OF STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 1990-91. WA Nos. 1428 of 2021 & 157 of 2022 13