Allowed

The State of Kerala v. K.M.Lindan

Kerala HC26 Mar 2014WA/979/2011

Case brief

AI extract

What is this about?

The Division Bench set aside a Single Judge judgment that had reversed a post abolition order. While the post abolition and non-recovery of rentsh preceding the abolition order were maintained, the direction to recover pre-2002 amounts was vacated based on the effective date rule of staff fixation rules.

What did the court decide?

Direction to recover salary drawn prior to the date of the abolition order was vacated; judgment of the Single Judge setting aside the abolition order was set aside.

The State of Kerala Vs K.M.Lindan — Pension and Retirement Benefits | Kerala HC (2014)

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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 ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936

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WA.No. 979 of 2011 ( ) IN WP(C).15767/2004

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AGAINST THE JUDGMENT IN WP(C) 15767/2004 of HIGH COURT OF KERALA DATED 02-11-2010

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APPELLANT(S)/RESPONDENTS 1 - 4:

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THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.

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THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, TRIVANDRUM -14.

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THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.

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THE DISTRICT EDUCAITONAL OFFICER, ERNAKULAM.

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BY SR GOVT PLEADER SRI.VIJU THOMAS

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RESPONDENT(S)/PETITIONER AND RESPONDENTS 5 AND 6:

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K.M.LINDAN, S/O.K.V.MICHAEL, PHYSICAL EDUCATION TEACHER, SANTA CRUZ HIGH SCHOOL OCHANTHURUTH, (RESIDING AT KODUVELIPARAMBIL, KOTHAD CHITTUR, ERNAKULAM DISTRICT - 682 508.

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THE CORPORATE MANAGER, ARCH DIOCESE OF VERAPOLY, COCHIN -18.

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THE HEADMASTER, SANTA CRUZ HIGH SCHOOL, OCHANTHURUTH-682508.

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R1 BY ADV. SRI.V.A.MUHAMMED R1 BY ADV. SRI.M.SAJJAD

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ----------------------------------W.A.No.979 of 2011

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----------------------------------Dated this the 26^th day of August, 2014

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JUDGMENT

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Antony Dominic, J.

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1.Respondents 1 to 4 in W.P(C).15767/04 are the appellants. The writ petition was filed by the first respondent herein challenging Exts.P5, P6 and P7 orders, by which, the post of Physical Education Teacher in one of the schools under the second respondent was abolished, resulting in the retrenchment of the first respondent and the orders confirming the same apart from directing recovery of the excess amount allegedly paid to the first respondent. By the judgment under appeal, following the judgment in Satheeshkumar v. State of Kerala [2009 (3) KLT 439], learned single Judge allowed the writ petition on the basis that, irrespective of the periods available, every high school is entitled to have a full time Physical Education Teacher. It is this judgment which is challenged before us.

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2.The admitted position now is that the judgment in the case of Satheeshkumar (supra) has been reversed by a

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WA.979/11

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Division Bench of this Court in its judgment in W.A.2679/09, rendered on 19.1.2001. If that be so, as a necessary consequence, the judgment under appeal also cannot be sustained and has to be set aside and we do so.

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3.However, learned counsel for the first respondent submitted that the post in question was abolished only by Ext.P5 order dated 20.2.2003 and that in Ext.P7 order passed by the Government, it has been ordered to refund the excess amount drawn by the first respondent from 15.7.2002. According to the counsel, in view of the provisions contained in subrule (3) of Rule 12C of Chapter XXIII KER, any order revising the staff fixation order shall take effect only from the date of the order. Therefore, according to him, there cannot be any recovery for any period prior to 20.2.2003 when Ext.P5 was issued.

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4.It is true that any order revising the staff fixation is effective from the date of the order, which is the provision in sub rule (3) of Rule 12C of Chapter XXIII KER. If that be so, since Ext.P5 order

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WA.979/11

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revising the staff fixation and abolishing the post was issued on 20.2.2003, that can take effect only from that date. Therefore, the recovery as ordered in Ext.P7 for the period prior to 20.2.2003 cannot be sustained and is accordingly vacated. Subject to the above, judgment of the learned single Judge is set aside and the writ appeal is allowed.

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Sd/DAMA SESHADRI NAIDU, Judge.

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kkb.

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/TRUE COPY/

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PS TO JUDGE

The State of Kerala v. K.M.Lindan

Case brief

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The State of Kerala v. K.M.Lindan

Case brief

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