K.Ahammed Koya vs The State Of Kerala And Others
2023 Latest Caselaw 6451 Ker

WP(C) No. 572 of 2009                 1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
               THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                           WP(C) NO. 572 OF 2009


PETITIONER:

             K.AHAMMED KOYA
             S/O.ATHRUMAN, HIGH SCHOOL ASSISTANT, (SOCIAL
             STUDIES),, CHAKKALAKKAL HIGH SCHOOL, KOZHIKODE.
             BY ADVS.
             SRI.V.A.MUHAMMED
             SRI.K.E.HAMZA


RESPONDENTS:

     1       THE STATE OF KERALA AND OTHERS
             SECRETARY TO GOVERNMENT, GENERAL EDUCATION
             DEPARTMENT, SECRETARIAT, TRIVANDRUM.
     2       THE DISTRICT EDUCATIONAL OFFICER
             KOZHIKODE DISTRICT.
     3       THE MANAGER
             CHAKKALAKKAL HIGH SCHOOL, KOZHIKODE.
             BY G.P., SRI. SUNILKUMAR KURIAKOSE



      THIS     WRIT       PETITION    (CIVIL)      HAVING    COME    UP    FOR
ADMISSION      ON       13.06.2023,       THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) No. 572 of 2009                   2



                       VIJU ABRAHAM , J.
            ===========================
                    WP(C) No. 572 of 2009
            ============================
              Dated this the 13th day of June, 2023

                                 JUDGMENT

Petitioner has approached this Court challenging Ext P5 and

for a further direction commanding the respondents to refrain from

recovering the salary and allowances from 01.08.1994 to

03.11.1997 for which the petitioner had actually worked. By Ext P5

order Government has issued orders rejecting the appointment of

the petitioner as HSA (Arabic) from 01.08.1994 to 03.11.1997 and

directed the recovery of salary paid from 01.08.1994 to

03.11.1997.

2. Petitioner was initially appointed as HSA (Arabic) from

01.08.1994 in Chakkalakkal High School, Kozhikode. Approval of

appointment was rejected by the DEO as per order dated

13.02.1995 on the ground that the petitioner is a fresh hand and

the said vacancy should be filled up by appointing a protected

teacher in terms of G.O. (Ms.) No. 123/91/G.Edn. dated 05.08.1991.

Petitioner challenged the said order of rejection before this Court

by filing O.P. No. 3592/1995 and this Court has passed Ext P1

interim order dated 28.06.1995 directing to approve the

appointment of the petitioner and to pay him salary for the period

which he has actually worked, provided the approval is denied and

salary is not paid only for the reason that the manager has not

complied with the conditions contained in Ext P3 order, provided

further that the manager has appointed one protected teacher in

the year of establishment of the school.

3. In terms of Ext P1 order, appointment of the petitioner

as HSA (Arabic) from 01.08.1994 to 31.07.1997 was approved as

per Ext P2 order. While so, a regular vacancy of HSA (Social

Studies) arose on 04.11.1997 and the petitioner was appointed as

HSA (Social Studies) with effect from 04.11.1997 onwards and the

said appointment was approved by the DEO as per Ext P3 order. In

the meanwhile, O.P. No. 3592/1995 was disposed of as per Ext P4

directing the Government to take a final decision in the matter in

the light of the present rules and orders. Without hearing the

petitioner, after a lapse of 3 years and 10 months, the Government

by Ext P5 rejected the appointment of the petitioner and directed

the recovery of salary.

4. Petitioner submits that the manager has appointed a

protected teacher namely K.C. Mariamma as High School Assistant

(Malayalam) from 20.09.1982 as per Ext P6. Further that, at the

time of appointment of the petitioner as HSA (Arabic), one

protected teacher in the category of HSA (Malayalam) was on the

rolls and the said protected teacher retired from service on

31.03.1997. Subsequently, the manager appointed another

protected teacher namely Gopalakrishnan as HSA (Sanskrit) in the

school and that he is presently working in the school. Based on

this, the petitioner would submit that the liability to appoint a

protected teacher has been satisfied by the manager and therefore

there cannot be any interference on the appointment of the

petitioner as was done by Ext P5 order. Petitioner submits that by

Exts P8, P14 and P15, the Government have considered the case of

similarly situated teachers and directed the approval of their

appointments and payment of salary also. Petitioner has a specific

case that, he has been singled out and only his case has been

rejected by Ext P5.

5. It is seen that when the matter was admitted, there is

an interim order staying the recovery of the amount from

petitioner as per Ext P5, and petitioner submits that he has retired

from service as on date. Admittedly the petitioner has worked

during the said period and salary has also been paid. This Court in

Valsamma Joseph v. St. Thomas College [1993 (2) KLT 44]

has held that an employee has an enforceable right to salary for

the period he has actually worked. Admittedly the appointment of

the petitioner was approved based on the interim order passed by

this Court and that he has been paid salary also. Petitioner has

worked during the relevant period and now has retired from

service.

6. The Government has as per Exts P8, P14 & P15

extended the benefits to similarly situated persons and no reason

have been stated for rejecting the claim of the petitioner.

Admittedly petitioner had worked during the relevant period and

has paid salary also. In view of the above facts and circumstances

and also on the basis of the judgment in Valsamma Joseph's

case supra and also taking into consideration the fact that the

petitioner had already retired from service, Ext P5 order is set

aside and there will be a direction to the respondents not to

recover the salary and allowances paid to the petitioner for the

period from 01.08.1994 to 03.11.1997.

With the above said direction, the writ petition is disposed of.

Sd/-

VIJU ABRAHAM JUDGE

sbk/-

APPENDIX OF WP(C) 572/2009

PETITIONER EXHIBITS EXHIBIT P-1 TRUE COPY OF THE ORDER IN CMP NO.6562/1995 IN O.P. NO. 3592/1995-C EXHIBIT P-2 TRUE COPY OF THE JUDGMENT IN O.P. NO. 3592/1995-

C EXHIBIT P-3 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER EXHIBIT P-4 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER EXHIBIT P-5 TRUE COPY OF THE G.O. (RT.) NO.

5298/2008/G.EDN.OF THE GOVERNMENT EXHIBIT P-6 TRUE COPY OF THE G.O. (MS) NO. 20/82/G.EDN.OF THE GOVERNMENT EXHIBIT P-7 TRUE COPY OF THE G.O. (RT) NO. 3776/2006/G.EDN.

OF THE GOVERNMENT EXHIBIT P-8 TRUE COPY OF THE G.O.(RT) NO. 3805/06/G.EDN. OF THE GOVERNMENT