IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16126 of 2008(T)
1. MAIJO KURUVILA, U.P.S.A.,
... Petitioner
Vs
1. MANAGER, ST.RAPHEL'S HIGH SCHOOL,
... Respondent
2. DISTRICT EDUCATIONAL OFFICER,
3. DEPUTY DIRECTOR OF EDUCATION,
4. DIRECTOR OF PUBLIC INSTRUCTIONS,
5. STATE OF KERALA, REP. BY ITS
For Petitioner :SRI.S.MUHAMMED HANEEFF
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :12/06/2008
O R D E R
K.T. SANKARAN,J..
--------------------------------------
W.P.(C) No.16126 of 2008 T
--------------------------------------
Dated this the 12th day of June, 2008.
J U D G M E N T
The petitioner was appointed as U.P.S.A. at St.Raphel’s High
School, Ezhupunna, an aided school managed by the first respondent, with
effect from 1.6.2005. It is stated that she was appointed in the vacancy of Smt.
Sheeba Varghese who was promoted as HSA in the vacancy of Smt.Bridgit
Thomas who retired on 31.3.2005. Ext.P1 is the appointment order. Originally
the District Educational Officer, Cherthala declined approval of appointment of
the petitioner on the ground that there was no sanctioned post. The petitioner
filed an appeal before the Deputy Director of Education, Alappuzha. The Deputy
Director of Education called for a report from the District District Educational
Officer, Cherthala. It is stated that the District Educational Officer submitted
Ext.P2 reported dated 26.6.2006 stating that there was a vacancy to
accommodate the petitioner. Thereafter, the Deputy Director of Education
allowed the appeal filed by the petitioner as per Ext.P3 order dated 29.6.2006
and approved the appointment of the petitioner with effect from 1.6.2005. It was
found that there was a vacancy for accommodating the petitioner with effect from
1.6.2005. On the basis of Ext.P3 order dated 29.6.2006, the District Educational
Officer approved the appointment of the petitioner with effect from 1.6.2005.
WP(C) No.16126/2008
2
2. The Director of Public Instruction conducted an audit
in the Office of the Deputy Director of Education, Alappuzha. An objection was
raised that the Manager unauthorisedly shifted approved UPSAs as LPSAs for
making fresh appointments without obtaining departmental sanction. The
Deputy Director of Education, on the basis of the audit objection, issued Ext.P5
letter dated 15.5.2008 to the District Educational Officer stating that the Director
of Public Instruction has directed the Deputy Director of Education to cancel the
approval of appointment of the petitioner and till a final decision is taken by the
Director of Public Instruction, not to disburse the salary to the petitioner. The
petitioner has challenged Ext.P5 letter dated 15.5.2008 in this Writ Petition.
3. In the counter affidavit filed by the Deputy Director of
Education, it is stated as follows:-
"2. It is respectfully
submitted that the petitioner Smt.Maijo
Kuruvila and Sri.John Ditto were appointed as
Upper Primary School Assistants with effect
from 1.6.2005 onwards against the promotion
vacancy of Smt.Sheeba Varghese and in the
transfer vacancy of Smt. Thankamma
respectively. At the time of these
appointments there were only 16 UPSA’s on
the roll, including Smt.Maijo Kuruvila and Sri.
John Ditto, against the sanctioned post of 16
UPSA’s. However later Government by G.O.
(Rt) No.4260/05/Gl.Edn. Dated 1.10.05 have
WP(C) No.16126/2008
3
ordered to approve the appointments of
Sri.Dennis George and Smt.Annie. M.J.
(Whose appointments were approved as
LPSA with effect from 29.11.04 and
continuing as LPSA in the school) as UPSA
with effect from 5.6.02. Hence, the District
Educational Officer, Cherthala has rejected
the appointment of Smt.Maijo Kuruvila and
Sri. John Ditto stating that there were no
sanctioned post of UPSA to provide the
appointees. However appeal filed by the
Manager was allowed by this Office as the
objection raised by the District Educational
Officer, Cherthala was occured due to the
issuance of G.O.(Rt) No.4260/05/Gl.Edn.
dated 1.10.05 and the Manager has made
necessary arrangements in this regard whcih
is detailed as follows:-
3. Smt. Annie. M.J.
and Sri.Dennis George were appointed as
UPSA in St.Raphel’s H.S.Ezhupunna with
effect from 5.6.02 and these appointments
were rejected at first by the department on the
reason that protected HSA’s of the school who
were deployed in the Government schools
should have been absorbed against these
vacancies, in terms of para (3) of G.O(P)
No.178/02/Gl.Edn. dated 28.6.2002. Hence
after recalling these protected High School
WP(C) No.16126/2008
4
Assistants to the parent school, the Manager
re-appointed the above two teachers against
the available vacancies of Lower Primary
School Assistants w.e.f.29.11.2004 and the
District Educational Officer, Cherthala has
approved their appointments as LPSA from
29.11.04 and they were continued in the
school as such. However, they filed W.P.(c)
No.16092/05 before the Hon’ble High Court
for their approval of appointment as UPSA
from 5.6.02 onwards. Meanwhile Smt.Maijo
Kuruvila and Sri.John Ditto were appointed as
UPSA w.e.f. 1.6.05 in the vacancies of UPSA
during 2005. However, on the basis of the
Hon’ble High Court direction in judgment
dated 30.5.05 in W.P.(c) 16092/05 the
Government vide G.O.(Rt)
No.4620/05/Gl.Edn. dated 1.10.05 directed
the District Educational Officer, Cherthala to
approve the appointment of Smt. Annie M.J.
and Sri.Dennis George as UPSA w.e.f. 5.6.02
itself. Hence by the issuance of the
Government Order dated 1.10.05 the total
number of UPSA’s become 18 against the
sanctioned post 16, even though Smt.Annie
M.J. and Sri.Dennis George worked as LPSA
from 29.11.04 with the earlier approval from
the District Educational Officer, Cherthala.
Hence on immediate receipt of the G.O(Rt)
dated 1/10/05 in order to arrange the excess
two UPSA’s the Manager has issued
WP(C) No.16126/2008
5
proceedings Dated 4.10.05 by adjusting 2
T.T.C. holder UPSA’s namely Smt.
P.V.Thresia and Sri. N.T.Ralpy to the
available vacancies in the L.P.Section. Hence
it was clear that there were vacancies for the
appointments of Smt.Majo Kuruvila and
Sri.John Ditto with effect from 1.6.05 (there
were only 16 UPSA’s in the roll as on 1.6.05
against the sanctioned post of 16, including
the appointee), the shifting of UPSA’s made
by the Manager on 4.10.05 was for the
compliance of the Government Order Dated
1.10.05. However the Manager had not
obtained prior sanction from the District
Educational Officer, Cherthala for the shifting
of UPSA. Hence this Office has ratified the
action of the Manager for the shifting of
UPSA’s exercising the power of the appellate
authority and directed the District Educational
Officer, Cherthala to approve the appointment
of Smt.Maijo Kuruvila and Sri. John Ditto as
UPSA with effect from 1.6.05.
4. However the audit
cell of the Director of Public Instruction,
Thiruvananthapuram has objected these
appointments. Reply furnished by this office
was also not accepted by the audit cell
pointing that at the time of issuance of the
G.O.(Rt) No.4260/05 dated 1.10.05 there
WP(C) No.16126/2008
6
were 18 UPSA’s in the roll (including the two
unapproved UPSA’s (Smt.Maijo Kuruvila and
Sri.John Ditto) against the sanctioned post of
16 UPSA’s.
5. In the above
circumstances the Deputy Director of
Education as per letter No.B1.3361/08
dt.15.5.08 had requested Director of Public
Instruction, Thiruvananthapuram to cancel the
appointments of Smt.Maijo Kuruvila and
Sri.John Ditto as UPSA’s from 1.6.05 and
directed District Educational Officer, Cherthala
to stop payments of salary to these teachers,
now the matter is pending with the Director of
Public Instruction, Thiruvananthapuram.
Therefore Writ Petition is devoid of merit.”.
4. A perusal of the counter affidavit shows that the
matter is not finally decided by the Director of Public Instruction. Ext.P5 letter
was issued without hearing the petitioner. The Director of Public Instruction has
also not heard the petitioner as well as the Manager. At the same time, till a final
decision is taken in the matter, the Director of Public Instruction has directed the
Deputy Director of Education, Alappuzha to withhold the salary of the petitioner.
The Deputy Director has in turn issued Exhibit P5 letter to the District
Educational Officer with copy to the Manager, the Headmaster and the
petitioner. To my mind, the direction to withhold the salary is illegal. The
WP(C) No.16126/2008
7
appointment of the petitioner from 1.6.2005 was approved by the competent
authority. Unless and until it is found after hearing the petitioner as well as the
Manager that the approval of appointment of the petitioner was illegal, it is not
proper to withhold the salary of the petitioner. At the same time, the matter has
to be finalised by the Director of Public Instruction. In these circumstances, the
Writ Petition is disposed of in the following manner:-
(1) The Director of Public Instruction shall issue notice to
the petitioner as well as the Manager, hear them and finally decide the matter
after considering all the contentions put forward by the petitioner as well as the
Manager.
(2) Till a final decision is taken by the Director of Public
Instruction, Ext.P5 shall be kept in abeyance and the direction to withhold the
salary of the petitioner shall not be implemented. Needless to say that this
direction will have the effect of taking necessary steps by the respondents to
continue to pay the salary of the petitioner.
K.T. SANKARAN,
JUDGE.
cks
