IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2315 of 2006(A)
1. C.K. KANAKARAJAN,
... Petitioner
2. SAYIDASAN N.P.,
3. P.RAJAN,
4. RAJEEV A.,
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE ASST. EDUCATIONAL OFFICER,
For Petitioner :SRI.M.VIJAYAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :13/07/2009
O R D E R
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) Nos. 2315/2006-A
& 20652/2007-H
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 13th day of July, 2009.
JUDGMENT
The main writ petition is W.P.(C) No.2315/2006, wherein the
question of approval of appointment of the petitioners from the respective
dates is the subject matter in dispute. In Writ Petition No.20652/2007, the
prayer is to quash Exts.P8 and P9 by which the pay fixation of the
petitioners therein has been objected, in the light of the pendency of Writ
Petition No.2315/2006.
2. All the four petitioners have been appointed as Physical Education
Teachers in the respective schools. The first petitioner was appointed on
30.3.1989, the second petitioner on 1.6.1989, the third petitioner on
31.3.1989 and the 4th petitioner was appointed on 6.6.1994. The
appointments of the petitioners were not initially approved by the
departmental authorities. The Government by Ext.P1 order, regularised the
appointments of 54 posts of Physical Education Teachers in various schools
including that of the petitioners. Thereafter, by Ext.P2 the Director of
Public Instruction directed the educational authorities to approve the
wpc 2315/06 &
20652/07 2
appointments from the date from which they were appointed.
3. Exts.P3 to P6 are the respective orders passed, by which the
appointments of these petitioners have been approved. They were being
paid salary from the dates of appointments. Thereafter, by Ext.P7, the
Director of Public Instruction directed the educational officers to recover
salary from the date prior to the reopening of the school during 2000-2001
on the ground that the Government by Ext.P1, has not directed approval to
be granted with retrospective dates. Consequently, directions have been
issued by Ext.P9 by the Assistant Educational Officer to recover salary. In
these circumstances, the petitioners have approached this court.
4. Learned counsel for the petitioners submitted that the stand taken
by the Director of Public Instruction cannot be sustained for more reasons
than one. It is pointed out that there is no direction in Ext.P1 to approve the
appointment prospectively only, but direction was to regularise the
appointment of Physical Education Teachers. Petitioners 1 and 2 have been
granted approval of appointment by separate Govt. Orders which have been
produced as Exts.P10 and P11, produced along with I.A.No.8215/2009. It
is therefore submitted that the view taken by the Director of Public
Instruction in the impugned order, cannot be sustained.
5. In the counter affidavit filed on behalf of the respondents, it is
wpc 2315/06 &
20652/07 3
submitted that the appointment of petitioners 1 and 2 have been approved
even prior to the issuance of Ext.P1 order, as per G.O.(Rt)
No.710/2000/G.Edn. dated 22.2.2000, G.O.(Rt) No.1324/01/G.Edn. dated
30.3.2001 and G.O.(Rt) No.5635/99/G.Edn. dated 31.12.1999. The
appointment of the first petitioner was approved with effect from 30.3.2001.
Similarly, the appointment of the second petitioner was approved with
effect from 1.6.1989 and consequential orders have been passed by the Asst.
Educational Officer also, which are produced as Exts.P3 and P4.
6. The objection now taken that the appointment can be approved
only prospectively, is not supported by any Government Order including
Ext.P1. The wording in Ext.P1 shows that the Government has regulairsed
the appointments of 54 Physical Education Teachers. That itself shows that
the regularisation will take effect from the date of appointment itself. There
is no direction in Ext.P1 that the appointments are to be approved only
prospectively. As the Government has regularised the appointments as
such, the Director of Public Instruction could not have issued a later order,
Ext.P7, without having received any other direction issued by the
Government in the matter. Therefore, the objection that is raised in Ext.P7
cannot be sustained. Apart from that, in respect of petitioners 1 and 2, by
separate orders Exts.P10 and P11 the Government itself had approved the
wpc 2315/06 &
20652/07 4
appointment from the dates shown therein. The same will prevail over
Ext.P7, obviously. Once the appointment is approved, it will have to relate
back to the date of appointment itself, unless otherwise shown in the order.
There is no dispute that the petitioners have performed the duties as teachers
also from the date of appointment. As regards petitioners 3 and 4, no other
reasons have been pointed out also.
7. In the light of the above, Exts.P7 and P8 to the extent to which
they affect the petitioners adversely, are quashed. The approval of
appointment granted to the petitioners as per Exts.P3 to P6 will be treated
as valid and they will be entitled for all consequential benefits accordingly.
8. In Writ Petition No.20652/2007, the challenge is against the
objection regarding pay fixation in the light of the recovery ordered, which
is under challenge in Writ Petition No.2315/2006. Since the said writ
petition has been allowed, Writ Petition No.20652/2007 is also allowed.
There will be a direction to the respondents to take appropriate action to fix
the revised pay scale in respect of the petitioners therein as sought for in
Exts.P6 and P7 and grant consequential benefits. The same shall be done
wpc 2315/06 &
20652/07 5
within a period of three months from the date of receipt of a copy of this
judgment.
The writ petitions are allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/