Allowed

Mini A.J. v. Government of Kerala

Kerala HC5 Dec 2012WP(C)/15/2012

Case brief

AI extract

What is this about?

In a writ petition, the High Court allowed the appeal of a school assistant seeking regularization. While acknowledging a stay on the parent judgment pending SLP before the Supreme Court, the Court held that no interim prohibition existed. It quashed the daily wage approval and directed regularization with pay from the date of joining, subject to reimbursement if the parent judgment is overturned.

What did the court decide?

Petitioner granted approval on regular basis from 01.08.2007 with undertaking to reimburse salary if parent judgment in Unni Narayanan is struck; appropriate orders to be issued within two months.

Mini A.J. Vs Government of Kerala — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934

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WP(C).No. 15 of 2012 (B)

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PETITIONER(S) :

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MINI A.J., AGED 40 YEARS LOWER PRIMARY SCHOOL ASSISTANT, ST.MARY'S SCHOOL PARUTHIYOOR, THIRUVANANTHAPURAM.

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BY ADV. SRI.P.N.MOHANAN

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RESPONDENT(S) :

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1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.

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3. DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121.

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4. ASSISTANT EDUCATIONAL OFFICER, BALARAMAPURAM, THIRUVANANTHAPURAM - 695 501.

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5. CORPORATE MANAGER, R.C.SCHOOLS, VELLAYAMBALAM THIRUVANANTHAPURAM-695 003.

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R1 TO R4 BY SMT. LOWSY A., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMV

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WP(C).No. 15 of 2012 (B)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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P1. : COPY OF THE ORDER DATED 16.09.2008 OF THE DISTRICT EDUCATIONAL OFFICER.

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P2. : COPY OF THE ORDER DATED 28.11.2007 OF THE ASSISTANT EDUCATIONAL OFFICER.

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P3. : COPY OF THE APPEAL DATED 14.12.2007 FILED BY THE MANAGER P4. : COPY OF THE LETTER DATED 20.10.08 OF THE ASSISTANT EDUCATIONAL OFFICER.

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P5. : COPY OF THE ORDER DATED 07.11.2008 OF THE DISTRICT EDUCATIONAL OFFICER.

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P6. : COPY OF THE ORDER ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER DATED 26.11.2008.

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P7. : OPY OF THE JUDGMENT REPORTED IN 2009 (2) KLT 604. P8. : COPY OF THE ORDER DATED 15.06.2009 OF THE DIRECTOR OF PUBLIC INSTRUCTIONS.

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P9. : COPY OF THE G.O.(P) NO.56/11 G.EDN. DATED 26.02.2011. P10. : COPY OF THE ORDER OF THE GOVERNMENT DATED 15.10.2011.

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RESPONDENTS EXHIBITS : NIL

/TRUE COPY/

P.A.TO JUDGE

AMV

P.R.RAMACHANDRA MENON, J.

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W.P.(C) NO.15 of 2012 (B)

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Dated this the 5^th day of December, 2012

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JUDGMENT

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The petitioner herein was appointed as 'LPSA' against an anticipated vacancy with effect from 01.08.2007, vide Ext.P1 order. Based on the said order, the petitioner joined duty and has been continuing as such.

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The 5^th respondent, the Manager of the School forwarded the proceedings for approval of the 3^rd respondent. The approval was however granted only 'on daily wages' with effect from 01.08.2007 to 31.03.2008 and thereafter in the relevant scale of pay with effect from 02.06.2008.

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The petitioner has been given to understand that the relief sought for has been denied to the petitioner by placing reliance on G.O.(P) No.104/08 G.Edn dated 10.06.2008. It is the case of the petitioner that the said G.O. has already been struck down by this Court in Unni Narayanan Vs. State of Kerala [2009 (2) KLT 604] being contrary to the mandate of Rule 7A of Chapter XIVA of the Kerala Educational Rules.

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During the course of hearing, the learned counsel for

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W.P.(C) NO.15 of 2012 (B)

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the petitioner brought to the notice of this Court that, exactly similar issue had come up for consideration before this Court earlier, at the instance of other similarly situated persons by filing W.P.(C).No.566/2011 and W.P.(C) No.28513/2011. Referring to the course and events, the relief sought for by the parties concerned has been granted by this Court, referring to the law declared by this Court in Unni Narayan's case.

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The operative portion of the judgment in W.P.(C) No.566/2011 reads as follows:

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“ The writ petition is therefore allowed. Exts P. 1 and 2 P to the extent to which the appointment of the petitioner is approved on daily wage basis from 17.08.2009 to 31.03.2010 are quashed. There will be a direction to the third respondent District Educational Officer, Chavakkad to approve the appointment of the petitioner as UPSA from 17.08.2009 onwards, on the petitioner submitting an undertaking that in the event of Special Leave Petitions being allowed, .i e., the SLP is challenging the decision of the Division Bench in Unni Narayan Vs State. of Kerala (2009 (2) KLT 604), the petitioner will reimburse to the Government, the monetary benefits granted for the said period on regular basis. Such orders will be passed within 6 weeks of the date of submission of the undertaking by the petitioner. The writ petition is allowed as above. No Costs ”.

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W.P.(C) NO.15 of 2012 (B)

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Heard the learned Government Pleader as well, who

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submits that the issue has not become final, by virtue of pendency of the SLP before the Apex Court.

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After hearing both the sides, this Court finds that, though the aggrieved party has to approach the departmental authorities first, before approaching this Court, the fact remains that the issue has already been considered by this Court, leading to declaration of law as per the decision cited supra. True, the matter is pending consideration before the Apex Court, but no interim order has been granted so far. The issue has already been considered by this Court, leading to judgments as borne by Ext.P7 judgment. This being the position, this Court finds that the petitioner is also entitled to have similar relief.

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Accordingly, this petition is also allowed and Ext.P5, to the extent approval is granted only on 'daily wage basis' for the relevant period mentioned therein, is quashed. The petitioner will be granted approval on regular basis, on a scale of pay right from 01.08.2007, on getting an undertaking that, in the event of the Special Leave Petition challenging the judgment of this Court

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W.P.(C) NO.15 of 2012 (B)

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cited supra is allowed, the petitioner will reimburse the amount drawn as salary. Appropriate orders shall be issued within a period of 'two' months from the date of receipt of a copy of this judgment and the monetary benefits, less the amount already drawn, shall be disbursed forthwith.

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The writ petition is disposed of.

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sd/- P.R.RAMACHANDRA MENON, JUDGE

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AMV

Mini A.J. v. Government of Kerala

Case brief

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Mini A.J. v. Government of Kerala

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