State of Kerala v. K. Naseer and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 WA.No. 101 of 2017 IN WP(C).25386/2012 ---------------------------------------[AGAINST THE JUDGMENT IN WP(C) 25386/2012 of HIGH COURT OF KERALA DATED 03-11-2015] APPELLANTS(S)/RESPONDENTS 1 TO 3 IN WP(C: ----------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DEPUTY DIRECTION OF EDUCATION, KANNUR DISTRICT, PIN - 670 001. 3. THE ASSISTANT EDUCATIONAL OFFICER, MATTANNURA, KANNUR DISTRICT - 670 702. BY SR.GOVERNMENT PLEADER A.J.VARGHESE. RESPONDENTS(S)/PETITIONER & RESPONDENTS 4 AND 5 IN WP(C): --------------------------------------------------------1. K.NASEER, S/O.MOIDEEN, LOWER PRIMARY SCHOOL ASSISTANT, NOORUL ISLAM SABHA LOWER PRIMARY SCHOOL, PALOTTUPALLY, MATTANNUR, KANNUR DISTRICT - 670 702. 2. THE MANAGER, NOORUL ISLAM SABHA LOWER PRIMARY SCHOOL, PALOTTUPALLY, MATTANNUR, KANNUR DISTRICT - 670 702. 3. THE HEADMASTER, NOORUL ISLAM SABHA LOWER PRIMARY SCHOOL, PALOTTUPALLY, MATTANNUR, KANNUR DISTRICT - 670 702. R1 BY ADV.SRI.V.A.MUHAMMED. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ.** **---------------------------------------------------------** ## **W.A.No.101 of 2017** **---------------------------------------------------** Dated this the 24[th] day of July, 2017 ## **JUDGMENT** ## **K.SURENDRA MOHAN, J** The State is in appeal against judgment dated 3.11.2015, finally disposing of W.P(C) No.25386 of 2012. As per the judgment, the learned Single Judge has directed the third appellant herein to consider the claim for approval of appointment of the first respondent from 24.9.2004 onwards. According to the State, the initial appointment of the first respondent from 24.9.2004 to 23.9.2005, had not been approved and is not liable to be approved. It is also contended that the regular appointment of the first respondent could be approved only with effect from 25.10.2006, the date on which a protected teacher was appointed in the school by the Manager. 2. The second respondent, who is the Manager of an aided W.A.No.101 of 2017 -:2:- school, had appointed the first respondent initially for the period from 24.9.2004 to 23.9.2005 as a Lower Primary School Assistant ('LPSA' for short) in a leave vacancy. As per Ext.P1 dated 3.11.2004, approval to the said appointment was rejected for the reason that the leave had not been sanctioned. Thereafter, by Ext.P2 dated 29.9.2004, the first respondent was appointed again to the leave vacancy for the period from 29.9.2004 to 30.4.2005. By this time, the leave without allowances, that was sought for by the permanent teacher, had been sanctioned. Therefore, the appointment of the first respondent as per Ext.P2 was approved. In the above circumstances, the Manager appointed the first respondent to a regular vacancy on 1.6.2005. The appointment was initially approved with effect from 1.2.2006. Later on, by Ext.P4 dated 30.5.2011, the earlier approval was modified and was granted with effect from 25.10.2006 only. The modification was made in view of the fact that a protected teacher had been W.A.No.101 of 2017 -:3:- accommodated by the Manager in the school, only with effect from 25.10.2006, in compliance with the Government Order that was in force. Though the first respondent had submitted Ext.P5 representation to the Government, by Ext.P6, the request was rejected. By Ext.P7 dated 30.11.2011, the third appellant ordered recovery of the salary that was drawn by the first respondent during the tenure of his unapproved service. It was challenging the said proceedings that the writ petition was filed by the first respondent. 3. The writ petition was contested by the appellants. Separate counter affidavits were filed by each of the appellants, refuting the contentions of the first respondent. According to the counter affidavits, as per G.O(P) No.46/06/G.Edn. dated 1.2.2006 it was obligatory on the part of the Manager to have appointed a protected teacher in the school. The Manager had appointed the protected teacher in the school only with effect from 25.10.2006. W.A.No.101 of 2017 ## -:4:- It is for the said reason that, the approval initially granted had to be modified to take effect from the said date. Since on the basis of the earlier approval, salary had been paid to the first respondent, the excess salary was directed to be recovered. It was contended that there was nothing wrong in the said proceedings. 4. The learned Single Judge considered the respective contentions, found that the impugned proceedings were unsustainable and the impugned orders have been set aside. Accordingly, the writ petition has been disposed of directing the Government to pass fresh orders considering the claim for approval of the first respondent from 24.9.2004. It is aggrieved by the said judgment that this appeal is filed. 5. According to the learned Government Pleader, the initial appointment of the first respondent was to a leave vacancy. He was appointed to the regular vacancy only on 1.6.2005. However, the said appointment was not liable to be approved from the said W.A.No.101 of 2017 -:5:- date for the reason that going by the provisions of G.O(P) No.46/06/G.Edn. dated 1.2.2006, the appointment could be approved only with effect from 25.10.2006, the date on which a protected teacher was accommodated at the school by the Manager. The learned Government Pleader placed reliance on the decision of the Apex Court in **Manager, V.K.N.M.Vocational Higher Secondary School** v. **State of Kerala** [(2016) 4 SCC 216] to contend that an appointment that does not extend to the whole of the academic year could be approved only on daily wages. In the present case, the first respondent's appointment initially from 29.9.2004, was only for a period less than one academic year. Therefore, it is contended that the said period cannot also entitle the first respondent to claim the benefit of Rule 51A, Chapter XIVA of the Kerala Education Rules, 1959 (hereinafter referred to as 'KER' for short). Since the learned Single Judge has not taken note of the above provision, it is contended that the judgment W.A.No.101 of 2017 -:6:- requires to be interfered with and set aside. 6. Advocate V.A.Muhammed, who appears for the first respondent, disputes the contentions of the learned Government Pleader to point out that though three separate counter affidavits have been filed by each of the appellants in the writ petition, nobody had a case that the first respondent had been appointed in violation of a direction issued by the Educational Authorities to accommodate a protected teacher in terms of G.O(P) No.46/2006/G.Edn. dated 1.2.2006. Therefore, it is contended that the learned Single Judge was perfectly right in directing the grant of approval to the first respondent's appointment with effect from 1.6.2005. 7. Heard. Though the first respondent was initially appointed for a period from 24.9.2004 to 23.9.2005, no approval was granted to the said appointment, for the reason that the leave without allowances of the teacher in whose place, the first W.A.No.101 of 2017 -:7:- respondent was proposed to be appointed had not been sanctioned. However, the first respondent was appointed again for the period from 29.9.2004 to 30.4.2005. The said appointment was duly approved as evident from Ext.P2. During the continuance of the leave vacancy to which the first respondent had been appointed, a regular vacancy had arisen in the school with effect from 1.6.2005. The Manager appointed the first respondent to the said leave vacancy. The said appointment was duly approved, initially, as stated above. Thereafter, the date of approval has been modified by Ext.P4 to 25.10.2006 on the ground that it was only on the said date that a protected teacher was appointed in the school. There is absolutely no material available in these proceedings to show why a protected teacher was accommodated in the school only with effect from 25.10.2006. The appellants also do not have any allegation that the Manager had appointed the first respondent in violation of a direction to appoint a protected teacher. Therefore, W.A.No.101 of 2017 ## -:8:- the fact that a protected teacher was appointed in the school only on 25.10.2006 cannot affect in any manner the grant of approval to the first respondent, who was admittedly appointed in a regular vacancy. It is not in dispute that, from 25.10.2006, a protected teacher was also appointed in the school. The first respondent was admittedly working in the regular vacancy from 1.6.2005. In view of the above, we do not find any infirmity in the direction of the learned Single Judge interfering with the impugned orders limiting the grant of approval to the first respondent from 25.10.2006 only. The learned Single Judge has directed the Government to issue fresh orders after considering the claim of the first respondent, within a period of four months. 8. We do not find any grounds to interfere with the said order. It is clarified that the date from which the claim of the first respondent shall be considered by the third respondent shall be 29.9.2004, instead of 24.9.2004, as mentioned in the judgment of W.A.No.101 of 2017 -:9:- the learned Single Judge. Orders in this regard shall be issued as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. sd/- **K.SURENDRA MOHAN, Judge.** sd/- **Mary Joseph, Judge.** MBS/ -true copy- P.S.TO JUDGE W.A.No.101 of 2017 -:10:- W.A.No.101 of 2017 -:11:-