**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**TUESDAY, THE 27TH DAY OF MARCH 2018 / 6TH CHAITHRA, 1940**
**WA.No. 635 of 2018 IN WPC. 15522/2016**
**------------------AGAINST THE JUDGMENT IN WP(C) 15522/2016 of HIGH COURT OF KERALA DATED 13-12-2017.**
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## **APPELLANT(S)/RESPONDENTS IN WPC**
**1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.**
**2 THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM.**
**BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH.**
## **RESPONDENT(S)/PETITIONER IN WPC:**
**HASSAN SHAREEF.K. HSA (NS), M.M.E.T. HIGH SCHOOL, MELMURI, MALAPPURAM-676 517.**
**BY SRI.AUGUSTINE JOSEPH.**
**THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **DXY**
## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.**
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## W.A.No.635 of 2018
---------------------------------------------------------Dated this the 27[th] day of March, 2018
## J U D G M E N T
## **Devan Ramachandran, J.**
This appeal is impelled by the State of Kerala and the District Educational Officer, Malappuram against the judgment of the learned single Judge in W.P.(C).No.15522 of 2016 dated 30.12.2017.
2. The point in controversy in this case is whether the respondent herein, who is the writ petitioner, is qualified to be appointed as a High School Assistant (HSA), Natural Science in a retirement vacancy that arose in the M.M.E.T. High School, Melmuri, Malappuram, which is under the administrative control of the 2[nd] appellant, District Educational Officer, Malappuram.
3. The undisputed facts, as are discernible from the pleadings, would show that the respondent's educational credentials is that he has a B.Ed. in Natural Science and a B.Sc in Biotechnology. He was appointed in a retirement vacancy that arose on 13.06.2012, on account of the resignation of a teacher in Natural Science. We see that the District Educational Officer,
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Malappuram initially rejected this appointment on the ground B.Sc (Biotechnology) possessed by the respondent is not among the qualifications requisite for being appointed as HSA, Natural Science and the appeal filed against this order before the Deputy Director of Education also ended up in rejection.
4. We see that the Manager thereafter preferred a revision petition before the Director of Public Instructions (DPI) and while that revision was pending, the Government issued an order namely, G.O.(Ms). No.113/14/G.Edn dated 19.06.2014, as per which the qualification of B.Sc Biotechnology was also included as a relevant qualification for the purpose of being appointed as HSA, Natural Science. Based on this Government Order, the revision filed by the Manager before the DPI was allowed and that the appointment of the respondent from 13.06.2012 to 31.03.2013 was approved, but on daily wages with a caveat that he would be admitted to regular scale of pay from the next academic year onwards. This order was complied with by the District Educational Officer, Malappuram, who approved the appointment of the respondent. The respondent, however, impugned this order on the contention that going by the
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judgment of the Honourable Supreme Court in **State of Kerala v. Sneha Cherian [2013 (1) KLT 755 (SC)],** such an appointment on daily wages is not permissible and that he should have admitted to regular wages even from the date on which he was appointed. This revision filed by the respondent before the Government was however rejected, but while doing so, the Secretary of the Government went on to cancel the original approval itself granted to the respondent on the ground that his initial appointment was irregular, since he did not have the qualification of B.Sc, Natural Science for being appointed as HSA in Natural Science. A copy of this order of the Government has been placed on record in Ext.P5, which was impugned by the respondent by filing the writ petition before the learned single Judge.
5. The learned single Judge after going through the various Government Orders and the applicable proceedings, allowed the writ petition holding that Ext.P5 order cannot find favour in law specially because the respondent's appointment had already been approved, albeit on daily wages, by the DPI with effect from the date of initial appointment, that is
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13.06.2012. The learned single Judge has also concluded that the Government was in error in passing Ext.P5 order, canceling the appointment and approval of the respondent, in a revision preferred by the respondent, wherein he had only wanted the benefit of regular scale to be granted to him instead of daily wages. The view of the learned Judge on this issue is as under.
“6. In the above view of the matter, I am of the opinion that the orders passed by the Government in a revision preferred by the petitioner, cancelling the approval already granted and directing the recovery of pay was not in order, especially in view of the fact that the qualification by the petitioner has since been recognized as a possessed qualification for appointment to the post of HSA Natural Science.
In the above view of the matter, the directions contained in Exhibit P5 order setting aside the approval of the petitioner's appointment and the direction to recover the financial loss are set aside. It is directed that the petitioner's appointment shall stand approved as directed by the DPI.”
6. This judgment of the learned single Judge has been assailed by the appellants before us in this appeal. When the hearing commenced in this matter the learned counsel appearing on behalf of the respondent Sri.Augustine Joseph informs us that the respondent had, in fact, filed a review petition, numbered as
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R.P.No.101 of 2018, before the learned single Judge praying that the judgment be reviewed and to grant him the benefit of regular wages with effect from 13.06.2012. We notice that the learned single Judge had allowed the review and had ordered as under in the review petition:
“3. Going by the decisions of the Apex Court in State of Kerala v. Sneha Cheriyan [2013(1) KLT 755] and Nair Service Society v. State of Kerala, [2013 (4) KLT 921], the petitioner was entitled for approval of appointment as HSA (Natural Science) with effect from 13.06.2012 on a regular basis itself.
4. In the above view of the matter, there will be a further direction to the respondents to approve the appointment of the petitioner as HSA (Natural Science) with effect from 13.06.2012 on a regular basis. The vacation salary due to the petitioner for the academic year 2012-13 shall also be paid. The review petition is ordered directing the insertion of a further direction in the judgment under review.”
7. Sri.Augustine Joseph says that, therefore, this appeal is not maintainable since the State has chosen not to challenge the directions contained in review petition No.101 of 2018.
8. The learned Government Pleader appearing on behalf of the appellants submits vociferously that going by the provisions of Chapter XIV A Rule 92 of the KER, Government has
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the power to correct mistakes on its own motion, if it is brought to its notice that orders have been issued by the subordinate authorities otherwise than under the provisions of the law. According to him, the petitioner admittedly was not qualified when he was appointed as HSA, Natural Science on 13.06.2012 and that the benefit of the Government Order dated 19.06.2004, amending the qualifications for the post, cannot be held to be retrospective and can only be construed to be prospective in its nature. He, therefore, says that in view of these admitted facts, the petitioners appointment, with effect from 13.06.2012, cannot be found to be tenable or valid in law and therefore that Ext.P5 order cannot be faulted with in any manner.
9. We have considered the submissions of the learned counsel as above. We find substantial force in the submissions of Sri.Augustine Joseph that this appeal may not be maintainable in the manner that it has been framed now by the appellants because they have chosen not to challenge the judgment of the learned single Judge in R.P.No.101 of 2018. Obviously, by the judgment in the review petition, the learned single Judge had reviewed her own judgment and has granted certain additional
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benefits also, which we are told has been complied with by the State to its fullest extent. The learned Government Pleader concedes that all the benefits, as ordered by the learned single Judge in R.P.No.101 of 2018, has already been ordered to be granted and paid to the respondent but he, however, says that notwithstanding this; the appeal itself may be considered on its merits.
10. We are afraid that we cannot accede to the submission of the learned Government Pleader, specially because we notice from the judgment of the learned single Judge dated, 30.12.2017, that the respondent's appointment had been granted because the Director of Public Instructions had ordered so on daily wages with effect from the date of his initial appointment. We also notice that even though his appointment was initially not approved by the District Educational Officer and by the Deputy Director, it was allowed in revision by the Director of Public Instructions on the strength of the Government Order dated 19.06.2014 and that any modification of this order to the detriment of the respondent on a revision filed by him before the Government, in our view, was completely impermissible and
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unnecessary. We are in complete affirmation of the views and conclusions entered into by the learned single Judge and we find no reason to disturb the same in any manner, specially because, as we have already said above, the judgment in R.P.No.101 of 2018 has been accepted by the Government and acted upon fully.
In such view of the matter, we are compelled to dismiss this writ appeal, however, without making any order as to costs.
Sd/-
## **(P.R. RAMACHANDRA MENON, JUDGE)**
Sd/-
## **(DEVAN RAMACHANDRAN, JUDGE)**
True copy
P.A to Judge
DG
