Syamkumar P. v. State of Kerala & Others (W.P.(C). Nos.25633, 25728, 25967 & 28125 of 2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935 WP(C).No. 25633 of 2013 (D) ---------------------------- PETITIONER(S): - ------------------ SYAMKUMAR.P S/O. PARAMESWARAN PILLAI C.N., SWARNAMALA HOUSE ERAVIPEROOR P.O. THIRUVALLA. (UPPER PRIMARY SCHOOL ASSISTANT NSS HIGH SCHOOL, KUNNAMTHANAM). BY ADVS.SRI.S.SUBHASH CHAND SRI.SHINDO VARGHESE RESPONDENT(S) : - ------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 001. 3. THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA.-689101 4. THE GENERAL MANAGER & INSPECTOR NSS SCHOOLS, PERUNNA, CHANGANASSERY KOTTAYAM-686001 R4 BY ADV. SRI.P.GOPAL R4 BY ADV. SRI.B.MURALEEDHARAN R1 TO 3 BY GOVERNMENT PLEADER SRI.T.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2013, ALONG WITH WPC. NOS. 25728, 25967 & 28125 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25633 of 2013 (D) ## APPENDIX ## PETITIONER(S)' EXHIBITS: P1 : COPY OF THE ORDER DTD.11.7.2007 PASSED BY RSEPONDENT NO.4. - P2 : COPY OF THE ORDER DTD.18.9.2008 PASSED BY RESPONDENT NO.2. - P3 : COPY OF THE JUDGMENT DTD.9.12.2008 PASSED BY THIS HON'BLE COURT IN WPC NO.30790/2008. - P4 :COPY OF THE APPOINTMENT ORDER DTD.15.7.2008 ISSUED BY RESPONDENT NO.4. - P4(A):COPY OF THE COVERING LETTER DTD.8.1.2009 BY WHICH EXT.P4 APPOINTMENT WAS FORWARDED BY RESPONDENT NO.4. - P5 : COPY OF THE ORDER DTD.21.5.2009 PASSED BY RESPONDENT NO.3. - P6 : COPY OF THE JUDGMENT DTD.30.7.09 PASSED BY THIS HON'BLE COURT IN WPC NO.21549/2009. - P7 : COPY OF THE COMMUNICATION DTD.5.1.2010 ISSUED BY RESPONDENT NO.2 TO RESPONDENT NO.3. - P8 : COPY OF THE ORDER DTD.3.2.2010 PASSED BY RESPONDENT NO.3. - P9 : COPY OF GOVERNMENT ORDER BEARING GO(P)NO.31/2006/GE DTD.19.1.2006. - P10: COPY OF THE JUDGMENT DTD.24.5.2010 PASSED BY THIS HON'BLE COURT IN WPC NO.7040/2010. - P11: COPY OF THE ORDER DTD.5.10.2011 PASSED BY RESPONDENT NO.2. - P12:COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.56/11/G.EDN. DTD.26.2.2011. - P13: COPY OF THE GOVERNMENT ORDER BEARING GO(RT)NO.4156/2011/G.EDN. DTD.3.10.2011. - P14:COPY OF THE JUDGMENT DTD.30.10.2012 PASSED BY THIS HON'BLE COURT IN WPC NO.1619/2012(B). - P15:COPY OF THE RULING OF THE HON'BLE SUPREME COURT IN STATE OF KERALA AND OTHERS VS. SNEHA CHERIYAN AND ANOTHER (2013) 5 SCC. - P16:COPY OF THE GOVERNMENT ORDER DTD.22.4.2013. - P17:COPY OF THE ORDER DTD.6.9.2013 PASSED BY RESPONDENT NO.3. - P18:COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.104/2008/G.EDN. DTD.10.6.2008. - P19:TRUE COPY OF THE JUDGMENT DATED 1.11.2013 PASSED BY THIS HON'BLE COURT IN W.P.(C).NO.17893/2013. RESPONDENT(S)' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ==========================** ## **W.P.(C). Nos.25633, 25728, 25967 & 28125 OF 2013** ## **==========================** Dated this the 12[th] day of December, 2013 ## **JUDGMENT** These writ petitions carry common grievances under similar circumstances and therefore, they were taken up for joint hearing and disposal. In fact, a batch of writ petitions carrying exactly similar issues filed by similarly situated persons were already disposed of by me by a common judgment dated 6.12.2013 and therefore, these writ petitions can also be disposed of on the same lines. The petitioners herein are aggrieved by the manner and nature of approval of their appointments. The contention of the petitioners is that in the light of the decision of the Hon'ble Supreme Court in **State of Kerala and Others** Vs **Sneha Cheriyan** reported in **2013 (1) KHC 660** they are entitled to get their appointments approved on a scale of pay basis from the date of appointments. Evidently, it was declined pertaining to the initial period of appointments or such other relevant periods and those periods were approved only on daily wage basis. In the light of **W.P.(C).25633/13 & conn.** 2 the decision in **Sneha Cheriyan's** case (supra), more particularly of the directions in paragraph 26 of the said decision, it is contended that the action on the part of the respondents in limiting the approval to the appointments, in relation to the initial periods or such other relevant periods on daily wage basis disregarding the nature of vacancy as also the appointment is unsustainable. It is also contended that it was done so either relying on G.O.(P)No.104/2008/G.Edn dated 10.06.2008 disregarding the decision in **Sneha Cheriyan's** case (supra) or on a of the same or on wrong understanding relying G.O.(P) No.144/2013/G.Edn dated 22.04.2013. 2. I have heard the learned counsel for the petitioners and also the learned Government Pleader. It is the common contention of the petitioners that in view of the decision of the Hon'ble Apex Court in **Sneha Cheriyan's** case (supra), the respondent authorities could not rely on G.O.(P)No.104/ 2008/G.Edn. dated 10.06.2008 any further and as per the decision of this Court in W.P.(C)No.17893 of 2013 setting aside G.O.(P)No.144/2013/G.Edn. dated 22.04.2013 the said **W.P.(C).25633/13 & conn.** 3 G.O. dated 22.4.2013 also could not be relied on, for deciding the nature of approval to be granted legally, to the appointments of the petitioners in respect of the periods presently approved only on daily wage basis. In **Sneha Cheriyan's** case (supra), the Hon'ble Apex Court allowed the appeals with the following directions:- “We are, therefore, inclined to allow these appeals and set aside the judgment of the Division Bench with the following directions:- - “i) A teacher, who was relieved from service under Rules 49 and 53 of Chapter XIV-A of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. - ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc, provided they are established vacancies and the approval can be granted subject to the conditions under Rule 49 of Chapter XIV-A of the KER. - iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31[st] March due to sanctioning of additional divisions. - iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wage basis and if the duration of vacancy **W.P.(C).25633/13 & conn.** 4 exceeds one academic year that can be filled up on scale of pay basis. - v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the KER. - vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.” case 3. In the light of the decision in **Sneha Cheriyan's** (supra) carrying the aforesaid specific directions, it is contended that merely because of the fact that the appeal against the decision in **Unninarayanan** v. **State of Kerala** reported in **2009 (2) KLT 604** was allowed it shall not be understood as one restoring G.O.(P) No.104/ 2008/G.Edn. dated 10.06.2008. A scanning of the decision in **Sneha Cheriyan's** case (supra) would make the said position beyond any doubt. That apart, this position has been made abundantly clear in the judgment in W.P.(C)No.17893 of 2013 besides setting aside G.O.(P)No.144/2013/G.Edn. dated 22.04.2013. In the circumstances, **W.P.(C).25633/13 & conn.** 5 the impugned orders in all these writ petitions to the extent they approved the appointments of the petitioners on daily wage basis without bestowing consideration in the light of the decision in **Sneha Cheriyan's** case (supra) call for interference. So also, in the light of the judgment in W.P.(C)No.17893 of 2013, G.O.(P) No.144/2013/G.Edn. dated 22.04.2013 could not be relied on to limit the appointments of the petitioners on daily wage basis. In other words, the question whether the period/periods in question approved only on daily wage basis requires re-consideration in the light of the aforesaid decisions. As noticed hereinbefore, similar writ petitions moved by similarly situated persons were already disposed of by a common judgment dated 6.12.2013. To enable such consideration these writ petitions are disposed of as hereunder:- W.P.(C)No.25633 of 2013 Ext. P17 is quashed to the extent it directs the petitioner to refund salary and allowances drawn by the petitioner on regular scale of pay for the period from 15.7.2008 to 31.5.2009 less salary on daily wage basis and causes a break in service from 1.4.2009 to 31.5.2009 **W.P.(C).25633/13 & conn.** 6 consequent to the approval of the appointment of the petitioner from 15.7.2008 to 31.5.2009 only on daily wage basis. ## W.P.(C)No.25967 of 2013 Exts. P4 and P6 are quashed to the extent they ordered recovery from the salary of the petitioner consequent to the approval of appointment of the petitioner from 9.7.2008 to 31.3.2009 only on daily wage basis and withholding of salary from September, 2013. ## W.P.(C)No.25728 of 2013 The claim of the first petitioner for approval to her appointment from 10.7.2007 to 30.4.2008 and that of the second petitioner from 2.8.2008 to 30.4.2009 shall be re-considered in the light of the observations made hereinbefore. ## W.P.(C)No.28125 of 2013 Exts.P1 to P3 to the extent the period of appointment of the petitioner from 10.6.2010 to 31.3.2011 was approved only on daily wage basis and the claim of the petitioner for approval to his appointment during the said period on a scale of pay basis shall be re-considered in the light of the observations made hereinbefore. **W.P.(C).25633/13 & conn.** 7 Consequent to the quashing of the impugned orders and also the directions issued in these writ petitions to the aforementioned extent, the Government shall consider/re-consider the issue of approval of appointments covered by the impugned orders in these writ petitions for the periods mentioned hereinbefore, which were approved only on daily wage basis, afresh in the light of the decision in **Sneha Cheriyan's** case (supra) and the decision in **W.P.(C)No.17893 of 2013** and appropriate orders shall be passed expeditiously, at any rate, within a period of four months from the date of receipt of copy of this judgment. Needless to say that recovery, if any, proposed pursuant to the impugned orders shall be kept in abeyance till orders are passed based on the directions in this judgment and the question of effecting recovery and re-fixation of salary thereafter would depend upon the decision relating the petitioners in their respective cases. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).25633/13 & conn.** 8 **C.T. RAVIKUMAR, J.** 9 ## **W.P.(C).25633/13 & conn.** **JUDGMENT September, 2010**