Kerala High Court
C.Sundaran vs State Of Kerala on 1 June, 1992
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 22ND DAY OF MAY 2012/1ST JYAISHTA 1934
WP(C).No. 8035 of 2010 (D)
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PETITIONER(S) :
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1. C.SUNDARAN, WORKING AS PHYSICAL EDUCATION TEACHER,
CHATTIYOL S.K.V.U.P.SCHOOL,
P.O.OLYAMBADI, (VIA) M.M.BAZAAR.
2. DAMODARAN KUTTY.M.V,
WORKING AS PHYSICAL EDUCATION TEACHER,
N.N.SMARAKA U.P., SCHOOL, ALAKKAD, KALEESWARAM PO,
KANKOI, VIA PAYYANNUR, KANNUR DISTRICT.
3. VASUDEVAN.K.A, WORKING AS PHYSICAL EDUCATION TEACHER,
VELLORA AIDED U.P.SCHOOL,
KAITHAPRAM, P.O., MATHAMANGALAM.
4. VENUGOPALAN.T.V, WORKING AS PHYSICAL EDUCATION TEACHER,
CENTRAL U.P.SCHOOL, PAYYANNUR,
'USHAS', KARAMEL P.O., VELLUR.
BY ADV. SRI.M.V.AMARESAN
RESPONDENT(S) :
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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENTRAL EDUCATION,
SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF EDUCATION,
KANNUR.
4. THE ASSISTANT EDUCATIONAL OFFICER,
PAYYANNUR.
BY SMT.P.MAYA, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMV
WP(C).No. 8035 of 2010 (D)
APPENDIX
PETITIONER(S) EXHIBITS :
P1. : COPY OF THE APPOINTMENT LETTER ISSUED BY THE SCHOOL
MANAGER UNDER RULE XIV-(A) 7 OF K.E.R., DATED 01.06.1992 TO THE
1ST PETITIONER.
P2. : COPY OF THE APPOINTMENT LETTER ISSUED BY THE SCHOOL
MANAGER UNDER RULE XIV-(A) 7 OF K.E.R., DATED 06.06.1994 TO THE
2ND PETITIONER.
P3. : COPY OF THE APPOINTMENT LETTER ISSUED BY THE SCHOOL
MANAGER UNDER RULE XIV-(A) 7 OF K.E.R., DATED 03.12.1991 TO THE
3RD PETITIONER.
P4. : COPY OF THE APPOINTMENT LETTER ISSUED BY THE SCHOOL
MANAGER UNDER RULE XIV-(A) 7 OF K.E.R., DATED 15.10.1996 TO THE
4TH PETITIONER.
P5. : COPY OF GOVERNMENT ORDER BEARING NO.GO(MS) NO.113/2000/G.EDN
DATED 06.04.2000.
P6. : COPY OF THE NOTICE DATED 10.02.2005 BEARING NO.436/05 ISSUED BY
THE 3RD RESPONDENT.
P7. : COPY OF JUDGMENT IN W.P(C) NO.2315/06 AND 20652/07 DATED
13.07.2009.
P8. : COPY OF JUDGMENT DATED 16.12.2009 IN W.P.(C) NO.26084/05.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A.TO JUDGE
AMV
P.N.RAVINDRAN, J.
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W.P.(C) No.8035 OF 2010
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Dated this the 22nd day of May, 2012
J U D G M E N T
The petitioners are Physical Education Teachers working in four different Aided Upper Primary Schools namely Chattiyol S.K.V.U.P.School, N.N.Smaraka U.P.School Alakkad, Vellore Aided U.P.School and Central U.P.School, Payyannur. They were appointed on 1.6.1992, 6.6.1994, 3.12.1991 and 15.10.1996 respectively as per Ext.P1 to Ext.P4 orders issued by the respective managers. Their appointments were not approved in view of rule 6B of Chapter XXIII of the Kerala Education Rules in which it is stipulated that only one post of Specialist Teacher (namely Music, Physical Education or Drawing) can be sanctioned in an Upper Primary School or the Upper Primary Section of a High School having an effective strength of 500 pupils. 50 other persons were also likewise appointed as Physical Education Teachers. Their appointments were also rejected. Long after their appointments were rejected, the Government issued Ext.P5 order dated 6.4.2000 regularising the appointments of 54 Physical Education Teachers on WPC No.8035/2010 2 compassionate grounds. The Government also directed the Director of Public Instruction to verify individual cases and to ascertain their eligibility before approving the appointments. Pursuant to Ext.P5 order, the Assistant Educational Officer, Payyannur, within whose jurisdiction, the schools where the petitioners are working is situate, approved the appointments of the petitioners as Part-time Physical Education Teachers with effect from 6.4.2000. Thereupon they were paid salary and allowances with effect from 6.4.2000.
2. It appears, after Ext.P5 order was passed, the Director of Public Instruction issued letter No.H4/29303/2000/DPI dated 4.1.2002 wherein he directed the Educational Officers to approve the appointments of 54 Physical Education Teachers governed by Ext.P5 order with effect from the dates on which they were appointed, if their appointments are otherwise in order. However the appointments of the petitioners were approved only with effect from 6.4.2000. They were paid salary and allowances with effect from that date. In terms of the letter dated 4.1.2002, they were entitled to have their appointments approved with effect WPC No.8035/2010 3 from the dates on which they were appointed namely, 1.6.1992, 6.6.1994, 3.12.1991 and 15.10.1996. After the petitioners' appointments were approved with effect from 6.4.2000 (the date of Ext.P5 order) they were paid salary and allowances with effect from that date. Long thereafter, the Director of Public Instruction issued letter No.H4/29303/00/DPI dated 6.1.2005 wherein he directed the Educational Officers to recover the salary and allowances paid to the 54 Physical Education Teachers for the period prior to the date on which schools re-opened in the academic year 2000-2001. The said letter is extracted below.
"Copy of the Lr.No.H4/29303/00/DPI Thiruvananthapuram dt.6.1.05 Sir, Sub:-G1 Edn.-Aided-approval of 54 Physical Education Teachers- further direction issued-
Ref:-1. G.O.(MS)113/2000/dt.6.4.2000
2. This office letter even No.dt.4.01.2002
1. Invite your immediate personal attention to the reference cited second, wherein it has been directed to approve the appointment of 54 Physical Education Teachers from the date from which they were appointed if this appointments are otherwise in order. But there was no directions in the G.O. cited 1st to regularise the appointment of Physical Education Teachers with retrospective effect from the date from which they were appointed. The directions given to the Educational Officers vide reference second cited was a mistake notings that appointments are to be approved from the date of appointment as is being done in the case of other appointments made as per rules in KER. But the G.O. dt.6.4.2000 was issued purely on compassionate ground to redress the grievances of the 54 Physical Education Teachers who are continuing without salary. Hence this office directions vide reference second above is hereby reviewed and cancelled.
2. All the educational officer are hereby directed to recover the salary paid prior to date of reopening of schools during 2000-2001 if any to the said 54 PETs. This should be given to priority and the WPC No.8035/2010 4 recovery details should be reported to this office urgently."
3. Thereupon, the Assistant Educational Officer, Payyannur issued Ext.P6 letter dated 10.2.2005 to the Headmasters of the schools where the petitioners are working, calling upon them to recover the salary and allowances paid to the petitioners for the period from 6.4.2000 to 31.1.2005 and to refix the pay of the petitioners. Hence this writ petition challenging Ext.P6 and seeking the following reliefs:
"(i) To declare that the recovery effected from the petitioners pursuant to Exhibit P6 is bad in the light of Exhibit P5, Government Order and Exhibit P8 judgment of this Hon'ble Court.
(ii) To issue a writ of certiorari and to quash Exhibit P6.
(iii) To issue a writ of mandamus or any other appropriate writ or order directing the respondents to refund amount recovered from the petitioners pursuant to Exhibit P6.
(iv) Also to declare that, appointments of the petitioners are entitled to be regularised from the date of appointment disclosed in Exhibit P1 to P4 and also entitled to get salary and all service benefits accordingly.
(v) To issue writ of mandamus or any other appropriate writ or orders directing the respondents to regularise the petitioner's appointment from the date of their appointment reflected in Exhibit P1 to P4 appointment orders and to disburse all service benefits to them accordingly with interest."
4. The petitioners contend that in view of Ext.P5 order by which the Government regularised their appointments and that of 50 others, they are entitled to have their appointments approved WPC No.8035/2010 5 with effect from the dates on which they were appointed, that their appointments were approved only with effect from 6.4.2000 (the date of Ext.P5) and therefore the directions issued in Ext.P6 as also in the letter sent by the Director of Public Instruction to recover the salary and allowances drawn by them from 6.4.2000 is arbitrary and discriminatory and is liable to be interfered with. The petitioners also rely on Exts.P7 and P8 judgments of this Court passed in identical circumstances in support of their contentions.
5. The first respondent has filed a counter affidavit dated 30.7.2010. In paragraph 2 it is stated that though the appointments of the petitioners which were initially rejected were later approved with effect from 6.4.2000 pursuant to Ext.P5 Government order, as per letter dated 6.1.2005 the Director of Public Instruction reviewed and revised the approval of the appointments of the petitioners and others with effect from 5.6.2000, namely the date on which the schools re-opened in the academic year 2000-2001 and also directed refund of the excess salary and allowances paid to the teachers from 6.4.2000 to WPC No.8035/2010 6 4.6.2000. It is stated that the said direction has been implemented and the excess salary and allowances drawn by the petitioners were recovered from them, that petitioners 1 to 3 have refunded the sum of Rs.12,231/- each and the fourth petitioner has refunded the sum of Rs.1,836/-. It is also contended that the petitioners are not entitled to salary and allowances during the period from 6.4.2000 to 4.6.2000 as there is no provision to approve the appointments of teachers during vacation, that the State has filed W.A. No.275 of 2010 from Ext.P7 judgment and W.A. No.851 of 2010 from Ext.P8 judgment and the said appeals are pending. The counter affidavit proceeds to state that the challenge to Ext.P6 letter, which was issued on 10.2.2005, in this writ petition filed on 10.3.2010 is highly belated and therefore, the writ petition is liable to be dismissed on the ground of delay.
6. I heard Sri.P.S. Pradeep, learned counsel appearing for the petitioners and Smt.Maya, learned Government Pleader appearing for the respondents. Sri.P.S.Pradeep, learned counsel appearing for the petitioners contended that the petitioners are WPC No.8035/2010 7 similarly placed as the petitioners in W.P.(C) Nos.2315 of 2006 and 26084 of 2005 which were disposed of by Exts.P7 and P8 judgments, that this Court had in the said judgments held that the payment of salary and allowances to the petitioners therein for the months of April and May 2000 will be treated as regular and also left it open to the petitioners therein to move the competent authority seeking approval of appointment with effect from the dates of their original appointment and therefore, there is no reason why merely on the ground of delay, the petitioners herein should be treated differently. Per contra, the learned Government Pleader appearing for the respondents contended that the petitioners who did not choose to challenge Ext.P6 in time and refunded the salary and allowances drawn by them during the period from 6.4.2000 to 4.6.2000 and have not given any explanation whatsoever for not challenging Ext.P6 in time, are not entitled to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The appointments WPC No.8035/2010 8 of the petitioners and 50 other Physical Education Teachers were not approved on the ground that the appointments were made in violation of rule 6B of Chapter XXIII of the Kerala Education Rules. By Ext.P5 Government order passed on 6.4.2000, the Government ordered regularisation of the said appointments on compassionate grounds, if the appointments are otherwise in order. After the said Government order was issued, the Director of Public Instructions sent a letter dated 4.1.2002 to all the District/Assistant Educational Officers to approve the appointments of 54 Physical Education Teachers from the dates on which they were appointed if their appointments are otherwise in order. A copy of that letter was sent to the Assistant Educational Officer, Payyannur, the officer who approved the appointment of the petitioners only with effect from 6.4.2000. The Assistant Educational Officer, Payyannur was the fourth respondent in W.P.(C) No.26084 of 2005. As in the case of the petitioners, notwithstanding the letter dated 4.1.2002, he approved the appointments of the petitioners in W.P.(C) No.26084 of 2005 only with effect from 6.4.2000. By Ext.P8 WPC No.8035/2010 9 judgment delivered on 16.12.2009, a learned single Judge of this Court after relying on Ext.P7 judgment held that the payment of salary and allowances to teachers similarly placed as the petitioners herein for the months of April and May, 2000 has to be treated as regular in view of the Government Order dated 6.4.2000. The learned single Judge also left it open to the petitioners in W.P.(C) No.26084 of 2005 to seek approval of their appointments with effect from the date on which they were appointed. Such a direction was issued having regard to the findings and observations in Ext.P7 judgment, wherein this Court held that the action of the Assistant Educational Officer, Kannur in approving the appointments of similarly placed teachers with effect from the dates of their appointment pursuant to Ext.P5 Government order dated 6.4.2000 is in order. It is evident from the letter dated 4.1.2002 sent by the Director of Public Instructions to the Assistant Educational Officer, Payyannur that he ought to have approved the appointments of the petitioners with effect from the dates on which they were initially appointed. However for reasons best known to him, the Assistant WPC No.8035/2010 10 Educational Officer, Payyannur approved the appointments only with effect from 6.4.2000. Ext.P8 judgment in W.P.(C) No.26084 of 2005 was affirmed by a Division Bench of this Court in W.A.No.851 of 2010 which was dismissed by judgment delivered on 13.1.2012. The Division Bench also held in W.A.No.275 of 2010 filed from Ext.P7 judgment in W.P.(C) No.2315 of 2006 that the approval granted from the date of original appointment is in order. The Division Bench held that in the absence of a stipulation in Ext.P5 Government order to the effect that the regularisation is only prospective, such a stand cannot be taken at a later stage. The Division Bench also noticed that the teachers had actually worked in the school and therefore payment of salary with effect from the dates on which they were first appointed is in order.
8. In my opinion, in the light of the fact that the issue has attained finality on 13.1.2012 with the disposal of W.A. Nos.275 of 2010 and 851 of 2010, the respondents cannot deny relief to the petitioners, who are similarly placed and who are the beneficiaries of Ext.P5 Government order, merely for the reason WPC No.8035/2010 11 that they had refunded the excess salary and allowances drawn by them and did not chose to challenge Ext.P5 Government order in time. As rightly held by the learned single Judge in Ext.P8 judgment in the light of the letter dated 4.1.2002 the petitioners were entitled to have their appointments approved with effect from the dates on which they were initially appointed and liberty should be reserved with them to move the Government seeking appropriate orders in that regard.
I accordingly allow the writ petition, quash Ext.P6 and declare that the payment of salary and allowances to petitioners for the period from 6.4.2000 to 4.6.2000 is in order. Consequently the amounts recovered from the petitioners shall be refunded to them forthwith. Needless to say, as in the case of the petitioners in W.P.(C) No.26084 of 2005 who are similarly placed, the petitioners will be free to move the Government seeking approval of their appointments as Physical Education Teachers with effect from the dates on which they were first appointed. I also make it clear that in the event of the petitioners filing an appropriate representation before the WPC No.8035/2010 12 Secretary to Government, General Education Department within one month from today seeking such approval, the Government shall direct approval of their appointments with effect from the dates on which they were appointed having regard to the findings and observations in Ext.P7 judgment in W.P.(C) No.2315 of 2006 and connected cases, if the petitioners had actually worked in the post from the dates on which they were appointed. If the petitioners move the Government as directed above, the Government shall take an appropriate decision in the matter expeditiously and in any event within an outer limit of four months from the date of receipt of the representation.
P.N.RAVINDRAN, (JUDGE) vps WPC No.8035/2010 13 WPC No.8035/2010 14