Kerala High Court
Lilly V.A vs State Of Kerala on 8 February, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942
WP(C).No.7295 OF 2017(J)
PETITIONER:
LILLY V.A
AGED 47 YRS, PULIKKADAN HOUSE, MALAIKUNNAM, THRISSUR - 680
712, NOW WORKING AS PRINCIPAL,ST. ANTONY'S HSS, MALA.
BY ADV. SRI.PAULSON THOMAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, GENERAL EDUCATION
DEPT,SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE DIRECTOR
DIRECTORATE OF HIGHER SECONDARY EDUCATION,HOUSING BOARD
BUILDING, THIRUVANANTHPURAM, PIN - 695 001.
3 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, EDAPPALLY,PIN - 682 024.
4 CORPORATE MANAGER
DIOCESE OF IRINJALAKUDA, IRINJALAKKUDA,THRISSUR,
PIN - 680 121.
BY ADV. SRI.M.H.ASIF ALI
BY ADV. SRI.S.MUHAMMED HANEEFF
OTHER PRESENT:
SR.GP - P.M. MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7295 OF 2017(J)
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JUDGMENT
The petitioner says that she was approved as a Higher Secondary School Teacher (HSST) Junior in the services of "St.Antony's HSS", Mala - of which the 4 th respondent is the Manager - through Ext.P1 and that she was, subsequently, appointed by transfer against the resultant vacancy of a teacher by name, Sri.K.P.Antu, transferred to another school on 14.06.2010, which was also approved with effect from 25.06.2010.
2. The petitioner says that, however, through Ext.P3 dated 06.08.2012, the 2nd respondent - Director of Higher Secondary Education ordered that another HSST junior, namely Sri.Jaison Pious, who was senior to the petitioner, be approved and therefore, that the petitioner was liable to be reverted. She admits that though she challenged Ext.P3 by filing W.P.(C)No.20448/2012, same was dismissed through Ext.P4 judgment, but asserts that throughout the proceedings of the said writ petition, an order of status quo was ordered by this Court.
3. The petitioner says that during this interregnum, the aforementioned Sri.Jaison Pious was appointed by transfer, as HSST (Economics) against another vacancy under the same management with effect from 23.02.2013 and that pursuant to WP(C).No.7295 OF 2017(J) 3 Ext.P4 judgment, the Department issued Ext.P6 approving the appointment of the petitioner as HSST with effect from 23.02.2013, against the afore resultant vacancy of Sri.Jaison Pious.
4. The petitioner alleges that, however, in spite of these, the Regional Deputy Director of Higher Secondary Education, Edappally, has now issued Ext.P7 ordering that the amounts drawn by her while she worked as HSST during the period when the writ petition was pending before this Court, be recovered. The petitioner says that Ext.P7 is illegal, going by the judgment of the Hon'ble Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer) and others [2015 4 SCC 334], since in direction No.4 thereof, the Hon'ble Court had made it clear that in such circumstances, no recovery is possible. The petitioner, therefore, prays that Ext.P7 be set aside.
5. I have heard Sri.Paulson Thomas, learned counsel for the petitioner; Sri.Muhammed Haneef, learned counsel appearing for respondent No.4 - Corporate Manager and Sri.P.M.Manoj, learned Senior Government Pleader appearing for respondents 1 to
3.
6. The learned Senior Government Pleader asserted that Ext.P7 is irreproachable since the petitioner herself admits that WP(C).No.7295 OF 2017(J) 4 during the period in question, she was liable to be reverted as HSST Junior and therefore, that her payment in the scale of HSST was impermissible. Learned Senior Government Pleader therefore, prayed that this writ petition may be dismissed.
7. I notice that a counter affidavit has been filed on behalf of the Corporate Manager, wherein, it has been asserted that the petitioner was allowed to continue as HSST by virtue of the order of stay obtained in W.P.(C)No.20448/2012, which had effectively kept the order of her reversion under abeyance during the entire period. The learned counsel for the petitioner submits that his client has only acted as per the directions of the Educational Authorities and prayed that no directions be issued against him.
8. When I examine the materials and pleadings on record and test them against the afore submissions made by the learned counsel, it is evident that the principles enunciated by the Hon'ble Supreme Court in Rafiq Masih (White Washer) (supra)) would apply in all its force to the facts presented in this case. This is because, in paragraph No.18 of the judgment, the Hon'ble Supreme Court has said that even in cases where "an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully WP(C).No.7295 OF 2017(J) 5 been required to work against an inferior post", would still get the protection against being asked to pay for the emoluments received by him/her during the said period.
In the case at hand, there is no doubt that the petitioner was ordered to be reverted but that there was an order of status quo granted by this Court, which permitted her to continue as HSST until Ext.P4 judgment had been delivered.
Ineluctably, therefore, the principles declared by the Hon'ble Supreme Court as afore would apply and I, am therefore, of the firm view that Ext.P7 cannot be enforced against the petitioner to recover the amounts received for no fault of hers and for no reason that can be attributed to her.
In the afore circumstances, this writ petition is ordered and Ext.P7 order is set aside.
SD/-
DEVAN RAMACHANDRAN
rp JUDGE
WP(C).No.7295 OF 2017(J)
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPROVAL ORDER OF THE
PETITIONER AS HSST(JR), ECONOMICS W.E.F. 01-01-2002.
EXHIBIT P2 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST(JR), ECONOMICS W.E.F. 25-06-2010.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE DIRECTOR DATED 06-08-2012.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
20448/2012 DATED 09-03-2016.
EXHIBIT P5 TRUE COPY OF THE 3RD RESPONDENT BY PROCEEDINGS DATED 05-07-2016.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 11-07-2016.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 28-12-2016.
EXHIBIT P8 TRUE COPY OF THE G.O(MS),
NO.351/2004/G.EDN. DATED 20-11-2004