Kerala High Court
K.Ahammed Koya vs The State Of Kerala And Others on 13 June, 2023
WP(C) No. 572 of 2009 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
WP(C) NO. 572 OF 2009
PETITIONER:
K.AHAMMED KOYA
S/O.ATHRUMAN, HIGH SCHOOL ASSISTANT, (SOCIAL
STUDIES),, CHAKKALAKKAL HIGH SCHOOL, KOZHIKODE.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.K.E.HAMZA
RESPONDENTS:
1 THE STATE OF KERALA AND OTHERS
SECRETARY TO GOVERNMENT, GENERAL EDUCATION
DEPARTMENT, SECRETARIAT, TRIVANDRUM.
2 THE DISTRICT EDUCATIONAL OFFICER
KOZHIKODE DISTRICT.
3 THE MANAGER
CHAKKALAKKAL HIGH SCHOOL, KOZHIKODE.
BY G.P., SRI. SUNILKUMAR KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No. 572 of 2009 2
VIJU ABRAHAM , J.
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WP(C) No. 572 of 2009
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Dated this the 13th day of June, 2023
JUDGMENT
Petitioner has approached this Court challenging Ext P5 and for a further direction commanding the respondents to refrain from recovering the salary and allowances from 01.08.1994 to 03.11.1997 for which the petitioner had actually worked. By Ext P5 order Government has issued orders rejecting the appointment of the petitioner as HSA (Arabic) from 01.08.1994 to 03.11.1997 and directed the recovery of salary paid from 01.08.1994 to 03.11.1997.
2. Petitioner was initially appointed as HSA (Arabic) from 01.08.1994 in Chakkalakkal High School, Kozhikode. Approval of appointment was rejected by the DEO as per order dated 13.02.1995 on the ground that the petitioner is a fresh hand and the said vacancy should be filled up by appointing a protected teacher in terms of G.O. (Ms.) No. 123/91/G.Edn. dated 05.08.1991. Petitioner challenged the said order of rejection before this Court by filing O.P. No. 3592/1995 and this Court has passed Ext P1 interim order dated 28.06.1995 directing to approve the appointment of the petitioner and to pay him salary for the period WP(C) No. 572 of 2009 3 which he has actually worked, provided the approval is denied and salary is not paid only for the reason that the manager has not complied with the conditions contained in Ext P3 order, provided further that the manager has appointed one protected teacher in the year of establishment of the school.
3. In terms of Ext P1 order, appointment of the petitioner as HSA (Arabic) from 01.08.1994 to 31.07.1997 was approved as per Ext P2 order. While so, a regular vacancy of HSA (Social Studies) arose on 04.11.1997 and the petitioner was appointed as HSA (Social Studies) with effect from 04.11.1997 onwards and the said appointment was approved by the DEO as per Ext P3 order. In the meanwhile, O.P. No. 3592/1995 was disposed of as per Ext P4 directing the Government to take a final decision in the matter in the light of the present rules and orders. Without hearing the petitioner, after a lapse of 3 years and 10 months, the Government by Ext P5 rejected the appointment of the petitioner and directed the recovery of salary.
4. Petitioner submits that the manager has appointed a protected teacher namely K.C. Mariamma as High School Assistant (Malayalam) from 20.09.1982 as per Ext P6. Further that, at the time of appointment of the petitioner as HSA (Arabic), one protected teacher in the category of HSA (Malayalam) was on the rolls and the said protected teacher retired from service on WP(C) No. 572 of 2009 4 31.03.1997. Subsequently, the manager appointed another protected teacher namely Gopalakrishnan as HSA (Sanskrit) in the school and that he is presently working in the school. Based on this, the petitioner would submit that the liability to appoint a protected teacher has been satisfied by the manager and therefore there cannot be any interference on the appointment of the petitioner as was done by Ext P5 order. Petitioner submits that by Exts P8, P14 and P15, the Government have considered the case of similarly situated teachers and directed the approval of their appointments and payment of salary also. Petitioner has a specific case that, he has been singled out and only his case has been rejected by Ext P5.
5. It is seen that when the matter was admitted, there is an interim order staying the recovery of the amount from petitioner as per Ext P5, and petitioner submits that he has retired from service as on date. Admittedly the petitioner has worked during the said period and salary has also been paid. This Court in Valsamma Joseph v. St. Thomas College [1993 (2) KLT 44] has held that an employee has an enforceable right to salary for the period he has actually worked. Admittedly the appointment of the petitioner was approved based on the interim order passed by this Court and that he has been paid salary also. Petitioner has WP(C) No. 572 of 2009 5 worked during the relevant period and now has retired from service.
6. The Government has as per Exts P8, P14 & P15 extended the benefits to similarly situated persons and no reason have been stated for rejecting the claim of the petitioner. Admittedly petitioner had worked during the relevant period and has paid salary also. In view of the above facts and circumstances and also on the basis of the judgment in Valsamma Joseph's case supra and also taking into consideration the fact that the petitioner had already retired from service, Ext P5 order is set aside and there will be a direction to the respondents not to recover the salary and allowances paid to the petitioner for the period from 01.08.1994 to 03.11.1997.
With the above said direction, the writ petition is disposed of.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
WP(C) No. 572 of 2009 6
APPENDIX OF WP(C) 572/2009 PETITIONER EXHIBITS EXHIBIT P-1 TRUE COPY OF THE ORDER IN CMP NO.6562/1995 IN O.P. NO. 3592/1995-C EXHIBIT P-2 TRUE COPY OF THE JUDGMENT IN O.P. NO. 3592/1995- C EXHIBIT P-3 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER EXHIBIT P-4 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER EXHIBIT P-5 TRUE COPY OF THE G.O. (RT.) NO.
5298/2008/G.EDN.OF THE GOVERNMENT EXHIBIT P-6 TRUE COPY OF THE G.O. (MS) NO. 20/82/G.EDN.OF THE GOVERNMENT EXHIBIT P-7 TRUE COPY OF THE G.O. (RT) NO. 3776/2006/G.EDN.
OF THE GOVERNMENT EXHIBIT P-8 TRUE COPY OF THE G.O.(RT) NO. 3805/06/G.EDN. OF THE GOVERNMENT