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2017 DIGILAW 153 (KER)

DEEPA JOSEPH, WIFE OF JUSTINE GEORGE v. STATE OF KERALA

2017-01-19

ANU SIVARAMAN

body2017
JUDGMENT : The petitioners were appointed as Lower Primary School Assistants in the schools under the 4th respondent-Corporate Educational Agency. Their appointments with effect from 01.06.2011 were approved by Exts.P2, P3 and P4 orders from the said date. However, by Ext.P5 circular dated 10.05.2012, it was stated that the vacancies in the uneconomic schools have been filled up and approval given with effect from 01.06.2011 should be reviewed. If vacancies in these schools due to death, retirement, resignation, promotion and leave exceeding 8 months have occurred and fresh hands posted, their approval will be on daily wages. However, appointments made within the minimum strength required in such schools (one teacher for each division including Headmaster) should be approved on regular basis. 2. Apparently on the strength of Ext.P5 and a review conducted pursuant thereto, Ext.P6 proceedings were issued by the Direction of Public Instruction stating that the appointment of the petitioners would be approved only on daily wages. It is submitted that with effect from 01.05.2012, salary due to the petitioners was also withheld. Though the petitioners have submitted Ext.P7 revision, the same was disposed of by Ext.P8 order stating that in Ext.P5, the Government had ordered that appointments in uneconomic schools should be made only on daily wage basis. 3. Heard the learned counsel appearing for the petitioners and the learned Senior Government Pleader appearing for the respondents. 4. Learned counsel appearing for the petitioners submitted that petitioners' appointments already having been approved with effect from 01.06.2011, within the sanctioned strength of staff required in the schools, i.e., one teacher for each division including Headmaster, a review on the basis of Ext.P5 order was completely uncalled for. It is also submitted that the approval granted to petitioners' appointments have not been recalled. In the above circumstances, the petitioners are entitled to be paid salary in the regular scale of pay since there was no sustainable reason for denying salary to them, it is submitted. 5. Learned counsel appearing for the petitioners further submitted that in the Government circular dated 09.11.2016, it has been specifically stated that no protected teacher is required to be appointed as a condition for approval of appointments made during the academic year 2011-2012 to 2015-2016. 5. Learned counsel appearing for the petitioners further submitted that in the Government circular dated 09.11.2016, it has been specifically stated that no protected teacher is required to be appointed as a condition for approval of appointments made during the academic year 2011-2012 to 2015-2016. It is therefore submitted that the further reason stated in Ext.P8 order to the effect that the approval of appointment of petitioners was not in order since protected teacher had not been appointed is also not sustainable. 6. A counter affidavit has been filed on behalf of the 2nd respondent wherein it is stated that approval granted to the petitioners was against existing Rules. Since the schools where the petitioners are working come within the category of uneconomic schools, it is stated that Ext.P5 circular dated 10.05.2012 provides that fresh hands posted against vacancies in uneconomic schools can be approved only on daily wages. 7. I have considered the contentions advanced. It is seen from Ext.P5 circular that the condition therein to the effect that appointment of fresh hands against vacancies arising in uneconomic schools shall be approved only on daily wages is not applicable to appointments within the minimum strength required i.e., one teacher for each division including Headmaster. Ext.P5 specifically states that in case any teacher has been appointed in excess of this requirement, such teachers shall be treated as approved on daily wages. It is therefore clear that the contention in Ext. P8 order to the effect that the Government had, by Ext.P5 ordered that all appointments made in uneconomic schools shall be on daily wages is factually incorrect. 8. As regards the contention that protected teachers ought to have been appointed as against the vacancies to which the petitioners were appointed also, clause 2 of circular dated 09.11.2016 provides that such a condition would not be applicable for approval of appointments made during the academic year 2011-2012 to 2015-2016. 9. In the above view of the matter and also in view of the fact that approval granted to the petitioners' appointments stands without any modification, I am of the opinion that the orders issued in Exts.P6 and P8 so far as the petitioners are concerned cannot be sustained. Exts.P6 and P8 are set aside. 9. In the above view of the matter and also in view of the fact that approval granted to the petitioners' appointments stands without any modification, I am of the opinion that the orders issued in Exts.P6 and P8 so far as the petitioners are concerned cannot be sustained. Exts.P6 and P8 are set aside. It is directed that the Government shall reconsider the claim of the petitioners for drawal of salary in regular scale of pay from 01.05.2012 on the strength of approval already granted to them in compliance of Ext.P5 circular as well as the circular dated 09.11.2016. It is made clear that the question whether the petitioners were appointed against the minimum strength required in the school as on the date of their appointments shall also be considered by the Government. Orders as directed above shall be passed within a period of two months from the date of receipt of a copy of this judgment.