Writ Appeal No.1150 of 2017 in W.P.(C) 24303/2013 (High Court of Kerala, Ernakulam)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940** **WA.No. 1150 of 2017 IN WPC. 24303/2013** **AGAINST THE ORDER/JUDGMENT IN WP(C) 24303/2013 of HIGH COURT OF KERALA DATED** **24-11-2016** ## **APPELLANT(S)/RESPONDENTS 1 TO 4 IN THE WPC** ## **1 STATE OF KERALA** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT , GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 01.** **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM - 695 014.** **3 THE ASSISTANT EDUCATION OFFICER, KANNUR NORTH, PO. KANNUR - 670 602.** **4 THE ACCOUNTANT GENERAL(A&E) KERALA, THIRUVANANTHAPURAM - 695 039.** **BY ADV.GOVERNMENT PLEADER SRI A J VARGHESE** ## **RESPONDENT(S)/PETITIONER AND 5TH RESPONDENT IN WPC:** ## **1. E.K.SAHEELA** - **W/O. K.M, FAISAL, LOWER PRIMARY SCHOOL ASSISTANT, CHEMBILODE CENTRAL LOWER PRIMARY SCHOOL, P.O MOWENCHERRY, KANNUR DISTRICT.** **2. THE HEADMASTER, CHEMBILODE CENTRAL LOWER PRIMARY SCHOOL, P.O MOWENCHERRY,KANNUR DISTRICT.** **R BY SRI.V.A.MUHAMMED** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** **//true copy //** **PA to Judge** ## **K.SURENDRA MOHAN & SHIRCY V., JJ. --------------------------------------------Writ Appeal No.1150 of 2017 ---------------------------------------------Dated this the 5[th] day of July, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. The State is in appeal aggrieved by the judgment dated 24.11.2016 of the learned Single Judge allowing W.P.(C) No.24303 of 2013. The Writ Petition was filed by the first respondent challenging exhibit P5 proceedings of the first appellant directing that the first respondent's appointment be treated as on daily wages basis and to recover the excess pay drawn by her. As per the judgment appealed against exhibit P5 has been set aside. 2. The short facts necessary for the purpose of this case are summarised as under: The first respondent was appointed as a Lower Primary School Assistant (LPSA for short) with effect from 01.06.1999 in a promotion vacancy that was created by the appointment of Smt. M.Sailaja as Headmistress on 22.02.2005. The promotion of Smt. M.Sailaja and the first ## -:2:- ## W.A.No.1150/2017 respondent were both approved and the salary was also paid. Later on, an audit objection was raised to the effect that the school had an effective strength of only 99 students and that, the appointment of the first respondent could have been only on daily wages basis. Another reason was that, the vacancy to which Smt. Sailaja was promoted was caused due to the suspension of a teacher. The teacher had been reinstated on 30.03.2011 and had retired on 31.03.2011. Therefore, the appointment of the first respondent could have been approved only from 01.06.2011. It was in view of the above circumstances that, initial appointment of the first respondent was ordered to be treated as on daily wage basis and the excess pay to be recovered. 3. The first respondent had preferred a representation to the Government against the action that was proposed on the basis of the audit objection. However, the representation was rejected by exhibit P5 order and a direction was issued to approve the appointment of the -:3:- ## W.A.No.1150/2017 petitioner from 01.10.2011. It was aggrieved by the said proceedings that the first respondent had approached this Court. The first respondent relied on the decision reported in **Usuvathunnisa v. Asst. Educational Officer** [1990(2) KLT 530] to contend that sanction to a post could not be withdrawn on the basis of an audit objection. The order to recover the salary that was already paid to the first respondent was also challenged. 4. The contentions of the first respondent were opposed by the Government Pleader pointing out that her appointment from 01.06.2011 could have been approved only on daily wage basis. Therefore, the approval that was granted to her appointment initially was not in order. It was for the said reason that same was directed to be withdrawn. As per exhibit P5, her appointment from 01.06.2011 has been granted approval on daily wage basis since the school was an uneconomic school. It was therefore contended that the directions in exhibit P5 were fully -:4:- ## W.A.No.1150/2017 justified. 5. The learned Single Judge considered the respective contentions found that the first respondent's appointment had been duly approved by the educational authorities. She has also drawn salary for the disputed period. It was only on the basis of the audit objection that the approval has been interfered with. Placing reliance on the decision in **1990 (2) KLT 530** (Supra), it was held that exhibit P5 was unsustainable. The same has accordingly been set aside. 6. According to the learned Government Pleader Sri. A.J.Varghese who appears for the appellants, the dictum in **1990 (2) KLT 530** (Supra) has no application to the facts of the present case. This is a case in which, for two reasons the appointment of the first respondent was unjustified. In the first place, there was no post to which the first respondent could have been appointed since the number of students did not justify sanction of the post. Secondly, it is ## -:5:- ## W.A.No.1150/2017 pointed out that, the teacher who had been suspended creating the vacancy to which Smt. M.Sailaja has been promoted had been reinstated on 30.03.2011 and had retired on 31.03.2011. Therefore, the first respondent ought to have been relieved on 29.03.2011. Thereafter, she could have been appointed only on 01.06.2011. Since the learned Single Judge has directed her to be treated as having been in service even on the dates on which the teacher had been so reinstated as stated above, the Government would end up paying salary to two teachers despite there being no vacancy. On the above grounds, the learned Government Pleader seeks interference with the judgment of the learned Single Judge. We have heard Advocate V.A.Muhammed who appears for the first respondent also. 7 **.** It is not in dispute that the first respondent was initially appointed with effect from 01.06.2009 to a vacancy that was created by the promotion of Smt. M.Sailaja as the -:6:- ## W.A.No.1150/2017 Headmistress. Both the appointment of Smt. M.Sailaja and the first respondent were approved by the authorities. Both of them were also paid their salaries. It is much later on the basis of an audit objection that proceedings were initiated for cancelling the approval that was already granted. The situation was created by the reinstatement of a teacher who was placed under suspension on 30.03.2011. She had also retired on 31.03.2011. It is because of the above two intervening days on which the teacher would have to be considered as having been in service that the audit objection has been raised. However, the fact remains that the said eventuality that came to the fore could not have been within the contemplation of anyone concerned, including the authorities. Therefore, there is no justification for making the first respondent, the poor teacher liable for the consequences that follows from such reinstatement. If we accept the contention of the learned Government Pleader that the first respondent would have to be treated ## -:7:- ## W.A.No.1150/2017 as having been relieved from service on 29.03.2011, since April and May are the summer vacations, it is not possible for her to be treated as being in service during the said period. Therefore, her appointment could be considered to be effective only from 01.06.2011. The said break in service would cause adverse consequences to her service and would even affect her pensionary benefits. It is not in dispute that, the situation has not been created by any act on the part of the first respondent. Therefore, there is no justification for making her liable for the consequences, especially since the same was not anticipated by any of the persons concerned. Therefore, we are not persuaded to accept the contentions of the learned Government Pleader. 8. We notice that, the learned Single Judge has placed reliance on the decision in **1990 (2) KLT 530 (Supra)** . It has been held in the said decision that, it is the Director of the Public instructions who is competent to set right the mistake. No orders have been passed in this case -:8:- ## W.A.No.1150/2017 by the said authority. We have carefully gone through the judgment of the learned Single Judge. We find no infirmity therein warranting an interference in appeal. In the interests of justice, we are of the opinion that, what is just in this situation is to let the whole episode rest. For the foregoing reasons, the Writ Appeal is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **SHIRCY V. JUDGE** kkj