The State Of Kerala vs The State Of Kerala
2021 Latest Caselaw 892 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                   &

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                           WA.No.886 OF 2020

 AGAINST THE JUDGMENT DATED 17-10-2018 IN WP(C) 32060/2017(F) OF
                       HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 1 & 2:

      1      THE STATE OF KERALA
             REPREENTED BY THE SECRETARY,
             HIGHER EDUCATION DEPARTMENT,
             GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

      2      THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
             KOZHIKODE 673 001

             BY GOVERNMENT PLEADER

RESPONDENTS/PETITIONER & RESPONDENTS 3 & 4:

      1      ANEES AHAMED E.K.
             ASSISTANT PROFESSOR IN PHYSICAL EDUCATION DEPARTMENT,
             POCKER SAHIB MEMORIAL ORPHANAGE COLLEGE, TIRURANGADI,
             MALAPPURAM 676 306

      2      UNIVERSITY OF CALICUT
             REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O,
             THENHIPALAM 573 635

      3      THE MANAGER,
             POCKER SAHIB MEMORIAL ORPHANAGE COLLEGE,
             TIRURANGADI, MALAPPURAM 676 306

             R1 BY ADV. SRI.BABY ISSAC ILLICKAL
             R1 BY ADV. SRI.ISAAC KURUVILLA ILLIKAL
             R3 BY ADV. SRI.K.T.SHYAMKUMAR

OTHER PRESENT:

             SRI. A.J. VARGHESE-SR. G.P.

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA No.886/2020                        -2-

                             JUDGMENT

DATED THIS THE 11th DAY OF JANUARY, 2021

Shaffique, J:

This appeal is filed by the State challenging judgment dated

17-10-2018 in W.P (C) No.32060/2017 in which the learned Single

Judge issued the following directions:-

"The petitioner shall be granted salary from the current month onwards without any delay. The arrears shall be paid within three months. If the Deputy Director of Collegiate Education propose to conduct an enquiry that shall be concluded within two months. The payment of salary would depend upon such enquiry. No costs."

2. The petitioner had a case that he was appointed in the

Department of Physical Education, Pocker Sahib Memorial Orphanage

College, Tirurangadi against a sanctioned post on 10-10-2014.

However, he was not paid salary and therefore he had approached

this court.

3. Contention urged by the learned Government Pleader on

behalf of the State is that the appointment of the petitioner was not

against a sanctioned post.

4. The learned counsel for the respondent however placed

reliance on certain additional documents produced along with counter

affidavit dated 17-12-2020. It is submitted that as per Annexure-I staff

fixation statement for the year 2008-2009, the students' strength was

above 1000 and two posts of physical education teacher were

sanctioned. Only one person was working at the relevant time. One

Shukkoor Illath was appointed. He was not paid salary. Therefore he

had approached this court by filing W.P (C) No.28154/2011. The

learned Single Judge by judgment dated 16-01-2017 having observed

that in so far as the students' strength is more than 1000, and since

the University had approved the appointment of an additional teacher,

the said petitioner was entitled to receive salary. It is submitted that

Sri. Shukkoor Illath resigned from the said job and thereafter the

petitioner was appointed in the said vacancy. It is brought to our

notice that as per the directions issued by the Government, staff

fixation orders were prepared by the Deputy Director of Collegiate

Education, which has been counter signed by the competent

authorities. As per staff fixation order dated 20-08-2010, there are

two sanctioned posts for Physical Education Department. Further,

when the aforesaid Shukkoor resigned, one post became vacant and

accordingly the Government as per letter dated 22-07-2014 appointed

a nominee for conducting selection to fill up various vacancies

including one physical education teacher in the said college, pursuant

to which, the ranked list was prepared and Sri. Anees Ahamed, the

writ petitioner, was appointed with effect from 10-10-2014.

5. Learned Government Pleader submitted that there is no

sanctioned post. But the fact remains that the Director of Collegiate

Education had approved the staff strength as evident from Annexure-

III and thereafter the Government appointed a nominee for

conducting selection and by virtue of Annexure-V, the petitioner had

been selected.

6. Apparently this is a case in which the petitioner had been

appointed against a sanctioned post. Therefore, we do not think that

the learned Government Pleader is justified in taking a contrary

contention. Having regard to the aforesaid factual situation, we don't

think that any error had been committed by the learned Single Judge.

The writ appeal is hence dismissed.

(Sd/-) A.M. SHAFFIQUE, JUDGE.

(Sd/-) GOPINATH P., JUDGE.

AMG