Kerala High Court
K.Sekharan vs State Of Kerala on 23 January, 2017
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938
WP(C).No. 14071 of 2009 (D)
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PETITIONER(S):
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K.SEKHARAN, PHYSICAL EDUCATION
TEACHER (UP SECTION), S.M.M.H.S.,
PAZHAMPALACODE, PALAKKAD DISTRICT.
BY ADVS.SRI.T.RAMPRASAD UNNI
SMT.SMITHA GEORGE
RESPONDENT(S):
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1. STATE OF KERALA, REP. BY SECRETARY
TO GOVT. GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DISTRICT EDUCATIONAL OFFICER,
PALAKKAD,.
3. THE HEADMASTER, S.M.M.H.S., PAZHAMPALACOD,
PALAKKAD DISTRICT.
4. THE MANAGER, S.M.M.H.S.S., PAZHAMPALACOD,
PALAKKAD DISTRICT.
R1 & R2 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN
R3 BY ADVS. SRI.GEORGE MATHEW
SRI.K.S.HARIHARAPUTHRAN
SRI.M.D.SASIKUMARAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19-01-2017 THE COURT ON 23-01-2017, DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 14071 of 2009 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE ORDER OF APPOINTMENT DTD.2.7.1990.
EXHIBIT P2 TRUE COPY OF THE ORDER NO.G.O.(RT)2213/97/G.EDN.
DTD.2.7.1997.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DTFD.19.8.1998 IN
OP.NO.13013/97.
EXHIBIT P4 TRUE COPY OF REPRESENTATION DTD.10.1.2000 ADDRESSED TO
THE SECOND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DTD.12.1.2000 OF THE SECOND
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER DTD.17.2.2000 OF THE SECOND
RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DTD.6.3.2000 SUBMITTED
BY THE PETITIONER BEFORE THE FIRST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DTD.28.1.2008
SUBMITTED BY THE PETITIONER BEFORE THE FIRST
RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER DTD.23.6.2008 OF THE SECOND
RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE LETTER DTD.25.11.2008 OF THE FIRST
RESPONDENT.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
//TRUE COPY//
P.S.TO JUDGE
msv/
ANU SIVARAMAN, J.
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W.P(C).No. 14071 of 2009
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Dated this the 23rd January, 2017
JUDGMENT
This writ petition has been filed challenging Exhibits P6 and P10 orders and seeking directions to the respondents to approve the period of service rendered by the petitioner from 28.1.1992 to 23.7.1997 and grant all consequential benefits. The petitioner was appointed as Physical Education Teacher in the 4th respondent school on 2.7.1990 and the appointment was approved. There was a post of Physical Education Teacher in the High School section and another post in the Upper Primary section, against which one K.K.Girish was working. The petitioner was appointed in the High School section. The post of Physical Education Teacher in the Upper Primary section was reduced in the staff fixation for the year 1990-1991. By Exhibit P2 order dated 2.7.1997, the Government ordered to restore the post in the Upper Primary section and to accommodate Sri.K.K.Girish against the said post and approve his appointment. The said order was challenged by Sri.K.K.Girish and by Exhibit P3 judgment dated 19.8.1998, this Court WP(C).14071/09 2 directed that said K.K.Girish could continue in the High School section as Physical Education Teacher and the petitioner herein, who was the 4th respondent in the said writ petition, could continue in the Upper Primary section. Exhibit P2 order was modified accordingly. The petitioner preferred Exhibit P6 request for release of his salary as Physical Education Teacher. The said request was rejected by Exhibit P6 order by the District Educational Officer stating that the petitioner had not marked his attendance during the period in question. Since the petitioner's appointment was approved on 19.9.1998, his salary was disbursed to him, however withholding the salary for the period from 28.1.1992 to 23.7.1997. Though the petitioner preferred revision before the Government, it was rejected by Exhibit P10 order on the ground of non marking of attendance in the attendance register during the period.
2. Heard learned counsel for the petitioner and the learned Government Pleader.
3. It is submitted by learned counsel for the petitioner that Exhibit P3 judgment itself recorded the contention of the petitioner that the petitioner had been continuously working as Physical Education Teacher in the school. By Exhibit P5 letter, the Headmaster had also specifically informed the District WP(C).14071/09 3 Educational Officer that the petitioner had been attending his duties as Physical Education Teacher from 27.1.1992 to 23.7.1997, since at the relevant time the appointment was not approved and the question as to his accommodation in the Upper Primary or High School section was alive. It is further submitted that the scale of pay and emoluments due to the Physical Education Teachers in the High School and Upper Primary sections being identical and since the petitioner's appointment with effect from 2.7.1990 stood approved by the endorsement to Exhibit P1, there is absolutely no reason for denying salary for the period from 28.1.1992 to 23.7.1997.
4. The learned Government Pleader appearing for the respondents would submit that the reason for non disbursement of salary for the period in question was that the petitioner had not signed the attendance register. The 3rd respondent Manager has also filed a counter affidavit stating that the petitioner had not worked during the period from 28.1.1992 to 23.7.1997 and that the statement in Exhibit P5 letter is not correct.
5. I have considered the contentions advanced. The petitioner was appointed against the regular vacancy of Physical Education Teacher in the High School section with WP(C).14071/09 4 effect from 2.7.1990. Existence of the said vacancy was never in dispute. The only question was with regard to the right of the teacher who had been working as Physical Education Teacher in the Upper Primary section to be accommodated against the vacancy, in which the petitioner was working. By Exhibit P2 order dated 2.7.1997, the reduction of posts in the Upper Primary section was found to be bad and the Government had restored the post of Physical Education Teacher. Therefore, in respect of the academic year 1991, there were admittedly two posts of Physical Education Teacher; one in the Upper Primary section and one in the High School section. The pay and emoluments of the posts are identical. In the above circumstances, what remained was only a question of adjustment of the petitioner as well as K.K.Girish against the respective post. This was also done pursuant to Exhibit P3 judgment. The service of the petitioner with effect from 2.7.1990 was approved by endorsement to Exhibit P1 order. In the above view of the matter, the petitioner would be entitled to pay and allowances with effect from the date of his appointment. The Headmaster, who is the appropriate authority to give a report as to the attendance of teachers in the school as reported by Exhibit P5 that the petitioner had WP(C).14071/09 5 worked in the school. Since the approval of appointment is to be effective from the date of appointment itself, I see no reason why the monetary benefits due to the petitioner, whose appointment has been approved with effect from 2.7.1990, should be denied to him for the period from 28.1.1992 to 23.7.1997.
6. Exhibits P6 and P10 orders are, therefore, set aside. It is directed that the District Educational Officer shall pass orders on the request raised by the petitioner in Exhibit P4 in the light of Exhibit P5 report of the Headmaster. Orders as directed above shall be passed within a period of two months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
ANU SIVARAMAN JUDGE vgs