SUMAJA P v. STATE OF KERALA

BY SMT.K.G.SAROJINI, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

01.11.2023, THE COURT ON 16.01.2024 DELIVERED THE FOLLOWING: WP(C) NO. 2500 OF 2022 3 T.R. RAVI, J. -------------------------------------------- W. P. (C). No.2500 of 2022 -------------------------------------------- Dated this the 16th day of January, 2024 JUDGMENT The petitioner was appointed as an LPSA in the School managed by the 4th respondent, as per Ext.P1 on 05.06.1995. At the time of appointment, the petitioner had a B.A. Degree from Osmania University and a B.Ed. Degree from the University of Calicut. The petitioner had passed B.Ed. Degree in 1993. However, the results had been withheld, stating that the degree granted by Osmania University had not been recognized by Calicut University. The petitioner filed O.P.No.3013/1996, which was allowed as per Ext.P2 judgment directing the University to publish the results. The results were published on 18.09.1999, and Ext.P3 is the mark list of the petitioner for the B.A. Degree, which shows that she had passed the B.Ed. in the examination conducted in April, 1993. When the 3rd respondent did not grant approval for the appointment of the petitioner, the petitioner had approached the Government and by Ext.P4, the 1st respondent also rejected the approval. Ext.P4 is challenged by the petitioner before this Court in WP(C) No.31239/2011. By Ext.P5 judgment dated 11.02.2015, this WP(C) NO. 2500 OF 2022 4 Court allowed the writ petition and quashed Ext.P4, declaring that the petitioner was qualified on the date of occurrence of the vacancy. This Court directed the 3rd respondent to approve the petitioner's appointment and to release the monetary benefits within a period of three months.

Pursuant to Ext.P5 judgment, the respondents approved the petitioner's appointment with effect from 05.06.1995 and ordered disbursal of salary for the period from 05.06.1995 to

14.07.1996. Ext.P6 is the order dated 08.12.2015. However, the arrears of salary claimed by the petitioner in terms of Exts.P5 and P6 were not paid. The petitioner filed Contempt Case No.1553/2015, in which the Assistant Educational Officer took a stand that there was a division fall in the school after 14.07.1996 and that even though the petitioner was entitled to protection, the same was not claimed. It was also stated that the post was again created in the school with effect from 01.06.2016, and salary thereafter has been paid to the petitioner. The contention was that from 14.07.1996 to 01.06.2016, there was no post in the school, and the petitioner could not be paid a salary for the said period. In the above circumstances, this Court closed the Contempt of Court Case without prejudice to the right of the petitioner to challenge the WP(C) NO. 2500 OF 2022 5 denial of salary. The petitioner contends that she has been working in the school during the period 14.07.1996 to 01.06.2016 and has been regularly signing the attendance register and teaching the students. It is also stated that the Assistant Educational Officer, having control over the school during the period, had countersigned those registers. It is also submitted that it was only due to the failure of the respondents to approve her appointment on time that she was not deployed to other Schools. It is hence submitted that the failure of the respondents to deploy the petitioner to other Schools cannot prejudice the right of the petitioner to get the salary for the period during which she has worked.

The petitioner approached this Court by filing W.P. (C)No.35263 of 2016, which was disposed of by Ext.P7 judgment directing the 2nd respondent to consider the petitioner's claim. In Ext.P7, this Court found that the petitioner's approval was granted continuously with effect from 5.6.1995, and it was not limited till

15.6.1996. This Court found that the order of approval itself was issued as late as 08.12.2015 when the educational authorities were aware that the post in question had been reduced in the staff fixation for the academic year 1996-97. This Court found that the petitioner continued in the post without salary from 1995 to 2016, WP(C) NO. 2500 OF 2022 6 even though she had been appointed regularly to the retirement vacancy of a teacher named Smt. K. Sujatha. Pursuant to Ext.P7, the 2nd respondent issued Ext.P8 order, again rejecting the claim of the petitioner. The matter was taken up in revision before the Government, and pursuant to directions issued by this Court in WP(C)No.13590 of 2021, the revision petition was disposed of by the 1st respondent as per Ext.P10 order. The 1st respondent also rejected the claim for salary for the period from 14.07.1996 to

01.06.1996, stating that there was no post in the school. This writ petition is filed in the above circumstances.

A counter affidavit has been filed by the respondents. It is stated that the Manager of the School was the petitioner's father, and she had been permitted to sign the attendance register even though there was no post. Another contention taken is that the petitioner was not qualified on the date of the vacancy and on the date of the appointment. Neither of the above contentions can be raised by the respondents. It is not in dispute that the registers have been countersigned by the educational officers regularly. In Ext.P7 judgment, this Court specifically found that the petitioner has been working in the school without salary during the period in question and that even the order of approval was issued when the WP(C) NO. 2500 OF 2022 7 educational authorities were aware that the post was not available in the school. So also, in view of Ext.P5 judgment and Ext.P6 order whereby the appointment was approved, the respondents cannot now take a stand that the petitioner was not qualified for appointment. The respondents have not challenged the earlier judgments of this Court and they have become final. In the above circumstances, the petitioner is entitled to succeed in this writ petition.