High Court of KeralaSingle Judge2018-11-02The court dismissed WP(C)9809/2016 and allowed ...

The Manager, AMLP School, Kundilparamba & Sajeesh K v State of Kerala & others; Saranya M. Nair v The Manager, AMLP School Kundilparamba & others

Case / Petition Number:WP(C).No. 9809 of 2016; WP(C).No. 30908 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Judgment Date: 2018-11-02
Court Decision / Holding: WP(C)9809/2016 was dismissed. WP(C)30908/2017 was allowed with directions: Saranya shall be appointed in the regular vacancy that arose on 27/4/2013 with notional approval from that date (without salary unless admissible) and counted for service benefits; the Manager is to implement the appointment within one month, and the AEO shall take further steps within another month. If Saranya did not work in the 27/4/2013 vacancy, she cannot claim salary; there shall be no recovery from Sajeesh for salary already drawn; any salary for Saranya for other periods shall be considered per law.
Final Disposition: The court dismissed WP(C)9809/2016 and allowed WP(C)30908/2017 with directions to regularise Saranya’s appointment in the 27/4/2013 vacancy (notional from that date, without salary unless admissible) and for the AEO to implement within the stipulated time; no recovery from Sajeesh; salary considerations for Saranya to follow due process of law.

Parties to the Case

Appellants / Petitioners

The Manager, AMLP School, Kundilparamba, Thennala P.O., Malappuram District
Sajeesh K

Respondents

State of Kerala represented by Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram
The Assistant Educational Officer, Vengara, Malappuram District
Saranya M. Nair

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R.K. Muraleedharan
• Sri. G. Suma

Counsels for Respondents

• Smt. Priya Shanavas
• Sri. S. Gopinathan
• Sri. R.K. Muraleedharan
• Smt. G. Suma

Case Synopsis & Summary

Two writ petitions, WP(C) No. 9809 of 2016 and WP(C) No. 30908 of 2017, arise from a dispute over Saranya M. Nair’s regularisation in a substantive vacancy and the corresponding salary/benefits, set against actions taken by the manager of AMLP School Kundilparamba and Sajeesh K. Saranya had been appointed in a leave vacancy in 2008, with daily-wage/regularisation steps taken over the years, culminating in a 2015 government order that regularised her appointment from 27/4/2013 in a regular scale. The manager and Sajeesh challenged this order, arguing it was issued without notice and should be set aside. Saranya contends that her appointment was in a substantive vacancy and, under Rule 51A of Chapter XIV A, Kerala Education Rules, 1959, she is entitled to regular pay from the date of her appointment, with seniority considerations for senior claimants. The court cites State of Kerala v. Sneha Cherian to justify regularisation in substantial vacancies. The judgment ultimately dismisses WP(C)9809/2016 and allows WP(C)30908/2017, directing the manager to appoint Saranya in the regular vacancy from 27/4/2013 with notional approval (without salary if not admissible) and instructing the AEO to implement within a month. It also provides that Sajeesh’s salary shall not be recovered, and any salary for Saranya for other periods will be considered as per law.

Provisions of Law Cited

Rule 51A of Chapter XIV A, Kerala Education Rules, 1959

Submissions & Arguments

Contentions of Appellants / Petitioners

The Manager and Sajeesh K contended that the Government’s order regularising Saranya’s appointment on a regular scale was issued without notice to them and thus should be set aside. They relied on the premise that the regularisation could be challenged and that Saranya’s regular pay from the date of appointment should not be permitted if improper. They argued that Saranya’s regularisation may affect the rights of existing appointees and that the action could amount to undisclosed changes in appointments without hearing.

Contentions of Respondents

Saranya M. Nair argued that her appointment in a substantive vacancy warranted regular pay from the date of appointment, under Rule 51A, and that the government’s 2015 order was legally correct. The State contended there was no necessity to hear the manager before approving regularisation in a substantive vacancy and that there should be no double payment; if Saranya did not work in the vacancy, salary would be governed by law; the officer implementing regularisation should ensure proper steps, including notional approval and service-benefit accounting.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Sneha Cherian	2013 (1) KLT 755 (SC)	Positive	Cited to support entitlement of regular pay from the date of appointment in a substantial vacancy, which the court relied upon in upholding the government's approach to regularisation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940** ## **WP(C).No. 9809 of 2016** ## **PETITIONER/S:** |**1**|**THE MANAGER, AMLP SCHOOL, KUNDILPARAMBA**| |---|---| ||**AGED 45 YEARS**| ||**THENNALA P.O., MALAPPURAM DISTRICT - 676 511.**| |**2**|**SAJEESH K**| ||**LPSA, AMLPS, KUNDILPARAMBA, THENNALA P.O.,**| ||**MALAPPURAM DISTRICT.**| **BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETRY TO GENERAL EDUCATION**| ||**DEPARTMENT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**VENGARA, MALAPPURAM DISTRICT - 676 304.**| |**3**|**SARANYA M.NAIR**| ||**W/O. PRASANTH, ATTUKUZHI VADAKETHIL,**| ||**ERUVANCHIRA P.O., THOTTAKAD, KOTTAYAM DISTRICT**| ||**- 686 539.**| ||**BY ADVS.**| ||**GOVERNMENT PLEADER SMT PRIYA SHANAVAS**| ||**SMT.G.SUMA**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2018, ALONG WITH WP(C).30908/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:2:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940** **WP(C).No. 30908 of 2017** ## **PETITIONER/S:** **SARANYA M. NAIR AGED 28 YEARS, W/O. PRASANTH, ATTUKUZHI VADAKETHIL,ERUVANCHIRA P.O, THOTTAKAD, KOTTAYAM - 686 539.** **BY ADV. SMT.G.SUMA** ## **RESPONDENT/S:** |**1**|**SAJEESH K**| |---|---| ||**LPSA, AMLP SCHOOL, KUNDILPARAMBA, THENNALA**| ||**P.O,MALAPPURAM - 676 511.**| |**2**|**THE STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY TO**| ||**GOVERNMENT,GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM - 695**| ||**001.**| |**3**|**THE DISTRICT EDUCATION OFFICER**| ||**TIRUR, MALAPPURAM - 676 101.**| |**4**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**VENGARA, MALAPPURAM -676 304.**| ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:3:-** **5 THE MANAGER AMLP SCHOOL KUNDILPARAMBA, THENNALA PO, MALAPPURAM - 676 511.** **BY ADVS.** **SRI.R.K.MURALEEDHARAN Sr. GOVERNMENT PLEADER S GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2018, ALONG WITH WP(C).9809/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:4:-** ## **JUDGMENT** ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** Smt.Saranya M.Nair, the petitioner in W.P.(C).No.30908 of 2017 was appointed in a leave vacancy with effect from 17/12/2008. That was approved on daily wages. Thereafter, the Government approved the said appointment on regular basis without vacation salary. That order is dated 5/11/2015 which is challenged by the Manager and one Shri Sajeesh K. in W.P.(C). No. 9809 of 2016. 2. W.P.(C). No. 30908 of 2017 was filed by Saranya claiming appointment in a regular vacancy with effect from 27/4/2013. Sajeesh also was appointed in a leave vacancy with effect from 1.6.2009 to 31.5.2011. Both are claimants under Rule 51A of Chapter XIV A, Kerala Education Rules, 1959. Consequent upon the decision of the Government to approve the appointment of Saranya on regular basis, she became senior claimant. Encountered with that order, manager and Sajeesh have no option but to challenge the same. Manager appears to have appointed Sajeesh in a regular vacancy with effect from 27/4/2013. The fate of the writ petition filed by Saranya would depend upon the challenge made by the manager and Sajeesh in W.P.(C). No. 9809 of 2016. ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:5:-** 3. The learned counsel for the manager and Sajeesh would submit that the order passed by the Government in favour of Saranya approving her appointment in a regular scale of pay was without notice to them and therefore, that order has to be set aside. Learned counsel for Saranya relying upon **State of Kerala v. Sneha Cherian [2013 (1) KLT 755 (SC)]** takes the stand that since the appointment was in a substantial vacancy, Saranya was entitled for regular scale of pay from the date of her appointment and therefore, the decision of the Government is legally correct. The manager or another claimant cannot question regular scale of pay granted to Saranya. The manager appointed Saranya in a regular vacancy. The manager cannot disown his own action now to save the subsequent appointment made by him. There is no necessity to hear the manager in taking decision by the Government insofar as ordering regular scale of pay to a regular appointee in a substantive vacancy. No right of the manager is defeated on account of such decision by the Government. Therefore, W.P.(C). No. 9809 of 2016 is only to be dismissed. Accordingly it is dismissed. 4. The writ petition filed by Saranya, W.P.(C). No. 30908 of 2017 is disposed as follows: There shall be a direction to the manager to appoint Saranya in ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:6:-** regular vacancy which arose with effect from 27/4/2013. This shall be done within one month. If the vacancy is admissible, she shall be given notional approval from the above date without salary. However, this will be counted for all service benefits. Needful shall be done by the Assistant Educational Officer within a further period of one month. 5. If Saranya had not worked in the vacancy which arose on 27/4/2013, she cannot claim salary. It is to be noted that Sajeesh was working in the vacancy on the strength of approval. Therefore, there cannot be a double payment. However, no recovery shall be effected from Sajeesh for the salary drawn till now. If Saranya had worked in any other vacancy, her claim for salary, for such period she worked in the school, shall be considered in accordance with law. **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:7:-** ## **APPENDIX OF WP(C) 9809/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **P1 - TRUE COPY OF THE APPOINTMENT ORDER IN FORM 27 DT. 01.6.2009.** **EXHIBIT P2** **P2 - TRUE COPY OF THE APPOINTEMNT ORDER DT. 17.12.2008 IN FORM 27.** - **EXHIBIT P3** **P3 - A TRUE COPY OF THE COMMUNICATION OF THE 1ST PETITIONER TO THE HEADMASTER.** - **EXHIBIT P4 P4 - A TRUE COPY OF THE ORDER OF THE DEO TIRUR DT. 05.8.2013.** **EXHIBIT P5 P5 - A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DT. 18.2.2014.** **EXHIBIT P6 P6 - A TRUE COPY OF THE JUDGMENT IN WPC NO. 10828/2014 DT. 18.12.2015.** **EXHIBIT P7 P7 - A TRUE COPY OF THE JUDGMENT IN WA NO. 143/2016 DT. 25.1.2016.** **EXHIBIT P8 P8 - A TRUE COPY OF THE COMMUNICATION BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DT. 05.11.2015.** RESPONDENTS' EXTS: EXHIBIT R3(1) THE COPY OF THE APPROVAL DATED 31/03/2009. EXHIBIT R3(2) THE COPY OF THE APPROVAL DATED 27/10/2009. EXHIBIT R3(3) A COPY OF THE APPOINTING ORDER DATED 01/06/2010. EXHIBIT R3(4) A COPY OF THE ORDER OF DPI DATED 17/06/2011. EXHIBIT R3(5) THE COPY OF THE GOVERNMENT ORDER GO(RT) 184/12/G.EDN. DATED 11/01/2012. ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:8:-** EXHIBIT R3(6) THE COPY OF THE ORDER OF THE FIRST PETITIONER MANAGER DATED 01/02/2012. EXHIBIT R3(7) THE COPY OF THE ORDER OF AEO DATED 05/03/2012. EXHIBIT R3(8) THE CLAIM OF THE FIRST PETITIONER (NOT DATED) TO AEO. EXHIBIT R3(9) THE ORDER OF AEO DATED 22/03/2013. EXHIBIT R3(10) THE LETTER DATED 27/04/2013. EXHIBIT R3(11) THE APPEAL DATED 07/06/2013 FILED BEFORE DEO. EXHIBIT R3(12) THE ORDER OF DEO DATED 05/08/2013. EXHIBIT R3(13) THE ORDER DATED 18/02/2014 OF THE GOVERNMENT. EXHIBIT R3(14) THE LETTER TO DEO, TIRUR DATED 19/03/2013. EXHIBIT R3(15) THE ORDER OF THE DEO DATED 28/05/2013. EXHIBIT R3(16) THE NON DATED REVISION PETITION BY PETITIONER BEFORE THE GOVERNMENT. EXHIBIT R3(17) THE LETTER DATED 06/11/2014 REGARDING THE REGISTRATION OF THE REVISION PETITION BY THE PETITIONER. EXHIBIT R3(18) THE GOVERNMENT ORDER DATED 05/11/2015. EXHIBIT R3(19) THE NON DATED LETTER WITH FORM 27 BY THE FIRST PETITIONER BEFORE THE AEO, VENGARA. EXHIBIT R3(20) THE ORDER OF AEO, VENGARA, DATED 16/04/2016. \\TRUE COPY// PS TO JUDGE ms ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:9:-** ## **APPENDIX OF WP(C) 30908/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE COPY OF THE APPOINTMENT ORDER DATED 31/03/2009.** **EXHIBIT P2 THE COPY OF THE APPOINTMENT ORDER DATED 27/10/2009.** **EXHIBIT P3 THE COPY OF THE GOVERNMENT ORDER DATED 05/11/2015.** **EXHIBIT P4 THE COPY OF THE APPOINTMENT ORDER DATED 16/04/2016.** **EXHIBIT P5 THE COPY OF THE APPOINTMENT ORDER DATED 01/06/2009.** **EXHIBIT P6 THE COPY OF THE APPOINTMENT ORDER DATED 01/06/2010. EXHIBIT P7 THE COPY OF THE DPI ORDER DATED 17/06/2011. EXHIBIT P8 THE COPY OF THE GOVERNMENT ORDER DATED 11/01/2012. EXHIBIT P9 THE COPY OF THE MANAGER ORDER DATED 01/02/2012. EXHIBIT P10 THE COPY OF THE AEO ORDER DATED 05/03/2012. EXHIBIT P11 THE COPY OF THE AEO ORDER DATED 22/03/2013. EXHIBIT P12 THE COPY OF THE MANAGER ORDER DATED 27/04/2013.** **EXHIBIT P13 THE COPY OF THE DEO ORDER DATED 05/08/2013.** ## **[ WP(C) 9809/2016 ,WP(C).30908/2017 ]** ## **-:10:-** ## **APPENDIX OF WP(C) 30908/2017** **EXHIBIT P14 THE COPY OF THE GOVERNMENT ORDER DATED 18/02/2014.** **EXHIBIT P15 THE COPY OF THE JUDGMENT IN WPC 10828/2014 DATED 18/12/2015. EXHIBIT P16 THE COPY OF THE JUDGMENT IN WA 143/2016 DATED 25/01/2016.** **EXHIBIT P17 THE COPY OF THE DEO ORDER DATED 28/05/2013. EXHIBIT P18 THE COPY OF THE FO 44977/12/2013/GEDN DATED 14/10/2015.** **EXHIBIT P19 THE COPY OF THE JUDGMENT DATED 09/08/2017 IN RP 233/2016.** **EXHIBIT P20 THE COPY OF THE LETTER (NOT DATED) TO THE AEO.** \\True copy// PS TO JUDGE ms