Kerala High Court
Appendix vs By Advs.Sri.M.V.Thamban on 6 February, 2010
Author: T.R. Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933
WP(C).No. 2442 of 2012 (E)
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PETITIONER
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SARATHCHANDRAN.C
FULL TIME CONTINGENT MENIAL,
ESWARA VILASOM HIGHER SECONDARY SCHOOL,
NEDUVATHOOR, NEELESWARAM PO, KOLLAM DISTRICT.
BY ADVS.SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
RESPONDENTS
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM 695 001.
3. THE DEPUTY DIRECTOR OF EDUCATION,
KOLLAM 691 001.
4. THE DISTRICT EDUCATIONAL OFFICER
KOTTARAKKARA, KOLLAM DISTRICT 691 506.
5. THE MANAGER
ESWARA VILASOM HIGHER SECONDARY SCHOOL, NEDUVATHOOR,
NEELASWARAM PO, KOLLAM DISTRICT 691 506.
6. THE HEADMASTER
ESWARA VILASOM HIGHER SECONDARY SCHOOL, NEDUVATHOOR,
NEELASWARAM PO, KOLLAM DISTRICT 691 506.
MG
(CONTD....)
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WP(C).No. 2442 of 2012 (E)
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7. SRI.RAVEENDRAN,
DEPUTY DIRECTOR EDUCATION,
KOLLAM DISTRICT 691 001.
BY GOVERNMENT PLEADER SRI.M.A.FAYAZ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MG
WP(C).No. 2442 of 2012 (E)
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APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1:- COPY OF THE REPRESENTATION BEFORE THE GOVT. ON 11.08.2009.
EXTP2:- COPY OF THE LETTER NO.49038/N2/09/G.EDN. DATED 06.02.2010.
EXT.P3:- COPY OF THE LETTER NO.B2/6034/09 DATED 18.03.2010.
EXT.P4:- COPY OF THE LETTER NO.B2/6034/09 DATED 18.03.2010.
EXT.P5:- COPY OF THE NOTICE NO.ETI/64498/2009/DPI DATED 30.04.2010.
EXT.P6:- COPY OF THE ORDER NO.ETI/64498/2009/DPI/K.DIS.DATED 26.06.2010
ISSUED BY THE DPI.
EXT.P7:- COPY OF THE ORDER NO.B2/6034/09/D.DIS.DATED 28.07.2010.
EXT.P8:- COPY OF THE REPRESENTATION TO THE TEACHER-IN-CHARGE ON
17.12.2010.
EXT.P9:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO
THE DIRECTOR OF PUBLIC INSTRUCTIONS ON 17.12.2010.
EXT.P10:- COPY OF THE APPLICATION RTI ACT TO THE OFFICE OF THE DPI ON
09.11.2011.
EXT.P11:- COPY OF THE LETTER NO.ETI/76009/2011/DPI/K.DIS DATED 25.11.2011.
RESPONDENT'S EXHIBITS:NIL
//TRUE COPY//
PA TO JUDGE
MG
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.2442/2012-E
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Dated this the 9th day of March, 2012
J U D G M E N T
The petitioner is working as a Full Time Contingent Menial in the Eswara Vilasom Higher Secondary School, Neduvathoor in Kollam District. The main prayer in the writ petition is for a direction to the respondents to disburse salary for the period from 15/07/2009 to 28/02/2010.
2. It is the case of the petitioner that he was originally appointed as Full Time Contingent Menial from 17/01/2004 and the said appointment was approved. One Smt.P.Girija was continuing as Full Time Contingent Menial from 01/06/2002 onwards. In the meanwhile, a vacancy of Peon in the school arose from 01/06/2005 when one Shri Pradyumnan Pillai availed leave for the period from 01/06/2005 to 31/03/2006. He retired from service on 01/06/2006 and thus, a regular vacancy of Peon arose with effect from 01/06/2006. Instead of promoting the senior most qualified Full Time Contingent Menial, namely, Smt.Girija Kumary, the Manager appointed Shri Aheesh V.Anand, Swathy, Neeleswaram as Peon from 01/06/2005 to 31/03/2006 on daily wage basis and on regular basis from 01/06/2006 onwards. Both the appointments were approved by the District Educational Officer.
W.P.(C). No.2442/2012 -:2:-
3. In the subsequent year, 2009-2010, there was a reduction in number of students and the petitioner apprehended abolition of post and filed a representation before the Government as per Ext.P1 challenging the appointment of Shri Aheesh V.Anand. This was considered by the Government and the Director of Public Instruction also sought for a report from the District Educational Officer, who submitted Ext.P3 report wherein he admitted the mistake and sought for cancellation of approval granted to Shri Aheesh V.Anand. Thereafter, the District Educational Officer by Ext.P4 informed the Headmaster that the approval of Shri Aheesh V.Anand is under re-examination and, accordingly, a direction was issued for withholding salary from 03/10/2010.
4. The Director of Public Instruction, after issuing notice to all parties passed Ext.P6 order dated 26/06/2010. The appointment of Shri Aheesh V.Anand as Peon from 01/06/2005 to 31/03/2006 and from 01/06/2006 has been cancelled and the Manager was directed to appoint the original claimant as per Rule 43 of Chapter XIV A Kerala Education Rules and re-arrange the appointment in respect of Smt.P.Girija Kumary, Shri C.Sarath Chandran and Shri Aheesh V.Anand in the existing vacancy of Peon and F.T.M with effect from 01/06/2005. The District Educational W.P.(C). No.2442/2012 -:3:- Officer, as per Ext.P7, approved the rearrangement of appointment made by the Manager in respect of Smt.P.Girija Kumary, Shri C.Sarath Chandran and Shri Aheesh V.Anand.
5. The proceedings, Ext.P7 shows that Ext.P6 has been implemented by the District Educational Officer by approving the rearrangement of appointments made by the Manager.
6. It is thereafter the petitioner filed Exts.P8 and P9 representations seeking disbursement of salary.
7. The fourth respondent has filed a counter affidavit in the matter. After detailing various aspects, it is stated in para.7 of the counter affidavit the detailed steps taken for implementation of Ext.P6 which reads as follows:
(i)Smt.P.Girija Kumary, Seniormost Full Time Menial is promoted and appointed as Peon from 01/06/2005 to 31/03/2006 against the leave vacancy of Shri Pradyumnan Pillai.
(ii)Shri C.Sarath Chandran, Full Time Menial is accommodated against the 1st post of Full Time Menial.
(iii)Shri Aheesh V.Anand worked as Peon from 01/06/2005 to 31/03/2006 is treated as the 2nd post of Full Time Contingent Menial. W.P.(C). No.2442/2012 -:4:-
(iv)Smt.P.Girija Kumary, Full Time Menial is promoted as Peon w.e.f 01/06/2006 against the retirement vacancy of Shri K.Pradyumnan Pillai.
(v)Shri C.Sarath Chandran is continuing in the 1st post of Full Time Contingent Menial.
(vi)Shri Aheesh V.Anand worked as Peon in the school from 01/06/2006 to 14/07/2009 is accommodated against the 2nd post of Full Time Menial and he is retrenched with effect from 15/07/2009 consequent on the reduction of post 2009-10.
What is averred in para.8 of the counter affidavit is that after rearrangement of appointment, Shri Sarath Chandran is eligible for receiving salary from 01/03/2010 onwards only since the said Shri Aheesh V. Anand has already claimed salary from 15/07/2009 to 28/02/2010 and that if a direction is given to pay salary to the petitioner, there will be a double payment.
8. Evidently, the petitioner's appointment has been approved as per Exts.P6 and P7. In that view of the matter, he is eligible to be paid salary for the period from 15/07/2009 to 28/02/2010 on the cancellation of appointment of Shri Aheesh V. Anand and any payment of salary to him cannot defeat the rights of the petitioner. There is no dispute that the W.P.(C). No.2442/2012 -:5:- petitioner was working during these periods also. In that view of the matter, the eligibility of the petitioner for payment of salary from 15/07/2009 to 28/02/2010 is declared. There will be a direction to the respondents to sanction and disburse the amount within a period of two months from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. No costs.
Sd/-
(T.R. Ramachandran Nair, Judge.) ms