IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19456 of 2008(N)
1. P.R.JOHN DITTO, HIGH SCHOOL ASSISTANT,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTION,
3. DEPUTY DIRECTOR (EDUCATION),
4. DISTRICT EDUCATIONAL OFFICER,
5. MANAGER, ST.RAPHAEL'S HIGH SCHOOL,
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :11/07/2008
O R D E R
K.T. SANKARAN, J.
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W.P.(C) No. 19456 OF 2008
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Dated this the 11th July, 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 fifth respondent, with effect from 1.6.2005.
It is stated that she was appointed in the vacancy consequent on the posting of P.P.
Thankamma as L.P.S.A. in the vacancy consequent on the transfer of Smt.
Philomina P.R. to St. Martin’s U.P.School, Neendakara, under the same management
in the vacancy of M.P. Augustine who retired on 31.03.2005. Originally the District
Educational Officer, Cherthala declined approval of appointment of the petitioner on the
ground that there was no sanctioned post. The Manager 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 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.
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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.P8 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.P8 letter dated 15.5.2008 in this Writ
Petition. As per Ext. P8 order similar direction was issued in respect of another teacher
, namely, Maijo Kuruvilla. Maijo Kuruvilla challenged the order dated 15.05.2008 in
W.P.(C) No. 16126 of 2008.
3. In the counter affidavit filed by the Deputy Director of Education, in W.P.
(C) No. 16126 of 2008 (Exhibit P9), it was 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 ordered to approve the
appointments of Sri.Dennis George and Smt.Annie. M.J. (Whose
W.P.(C) No. 19456 OF 2008
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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 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
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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
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 were 18 UPSA’s in
W.P.(C) No. 19456 OF 2008
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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. W.P.(C) No. 16126 of 2008 was disposed of by me as per Ext. P10
judgment dated 12.06.2008. This Writ Petition is also to be disposed of in the same
manner.
5. A perusal of Exhibit P9 counter affidavit shows that the matter is not
finally decided by the Director of Public Instruction. Ext.P8 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 P8 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 appointment of the petitioner from 1.6.2005 was approved by the
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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.P8
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.
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