The Headmaster and The Manager vs P.A. Smitha, The State of Kerala, The Director of Public Instructions and The District Educational Officer

A.K. Basheer, J.—Appellant is the manager of an Aided High School. His primary grievance is that the learned Single Judge has failed to keep in view the impact of annexure A1 order passed by the Government which has altered the entire scenario. Though it was brought to the notice of the learned Judge through a review petition that the direction contained in the impugned judgment may have to be kept in abeyance till the issue relating to regularization of the period during which respondent No. 1 teacher was kept out of service is decided finally, the learned Judge did not agree with the contentions raised by the appellant.

We have heard learned Counsel for the parties at length and perused annexure A1 order dated May 11, 2010 issued by the Government. We have also perused Annexure B order of the District Educational Officer, Thrissur directing the appellant to pay salary to respondent No. 1, teacher for the period from June 1, 2009 till June 3, 2010.

It is beyond controversy that the teacher had remained out of service with effect from December 27, 2008 on which day she was placed under suspension, till June 3, 2010. Of course, by order dated May 6, 2009 the Director Of Public Instruction had ordered that the teacher be reinstated in service. Later, by Ext.P4 order dated August 21, 2009 the Director of Public Instruction ordered the teacher be paid salary with effect June 1, 2009 and the said amount be treated as liability against the manager. The said order was initially confirmed by the Government in Ext.P5 order dated January 20, 2010 in G.O.(Rt.) No. 369/2010/G.Edn.

But later after a protracted procedural and litigative process, the above Government Order was revised and Annexure A1 order happened to be passed by the Government on May 11, 2010. The operative portion of the said order reads thus:

The request made by the petitioner was examined in detail by the Government and are pleased to revise the order read as 3rd paper above. Apart from the direction given to the District Educational Officer, Thrissur as per the said Government Order, the District Educational Officer is further directed to give instruction to the Manager to reinstate the 1st respondent as and when the school re-opens after vacation if not done already. If the petitioner fails to do so, the 3rd respondent, the Director of Public Instruction is directed to take steps to disqualify him as per rules. The regularization of the ousted period of service of the teacher, recovery of salary due to the teacher from the Manager etc. will be looked into as and when proposal for the same are received in Government. The Government order read as 3rd paper is modified to the above extent thus complying the judgment dated 04.11.2009 in W.P.(C) No. 31276/09.

(Emphasis supplied)

It is contended by Sri. Mohammed, learned Counsel for the teacher, that the Government has, in letter and spirit, found that the teacher is entitled to get salary and allowances right from June 1, 2009 itself as ordered by the Director of Public Instructions in Ext.P4 order. He submits that the manager has effectively prevented the teacher, by unlawful and unethical means, from discharging her duties and thereby denied her salary and other allowances.

There is considerable force in the above contention. However, Annexure A1 order issued by the Government revising its own earlier order in G.O.(Rt.) No. 369/2010/G.Edn., leaves room for some ambiguity, particularly since in its operative portion it is stated that "the regularisation of the ousted period of service of the teacher, recovery of salary due to the teacher from the manager, etc. will be looked into as and when proposal for the same are received in Government."

We do not deem it appropriate or necessary to venture into an interpretative exercise at this stage. In our view, the issue has to be sorted out by the Government itself and/or by its agencies, especially since the disciplinary proceedings are admittedly pending before the Educational Officer.

It is brought to our notice that the teacher has been reinstated in service with effect from June 3, 2010. However, we are informed that she has not been paid even subsistence allowance for the period from June 1, 2009. The appellant and respondent No. 3 shall ensure the teacher is paid all such allowances within ten days from today.

Disciplinary authority shall ensure that the pending proceedings are concluded at the earliest, at any rate, within one month from the date of receipt of a copy of this judgment. The Government in turn shall take a final decision in the matter relating to regularisation of the "ousted period" of the teacher and the liability of the manager, if any, as expeditiously as possible at any rate, within an outer limit of three months from today.

It is made clear that we have not considered the merit of any of the contentions raised by the parties. We make it further clear that the present direction to pay subsistence allowance to the teacher shall not be construed or treated as accepting the contention of the appellant/manager that the teacher would not be entitled to get salary for the period she was kept out of service particularly for the period starting from June 1, 2009 till her reinstatement.

Writ appeal is disposed of in the above terms.