STATE OF KERALA Vs. JAMES PHILIP

JUDGEMENT

(1.) This appeal has been filed challenging the judgment of a learned single Judge of this Court in W.P.(C)No.12919/2017. That writ petition was one filed by the 1st respondent challenging Ext.P5 through which it was proposed that the pay and allowances of the 1st respondent for the period from 26.6.1986 to 31.5.1988 be re-fixed by treating him as an Upper Primary School Assistant (UPSA), instead of a High School Assistant (HSA), for that period.

(2.) The brief facts are that the 1st respondent was appointed as a High School Assistant (Maths) in the school managed by the 2nd respondent on 26.6.1986. A claim was raised by one Fr. M.M. Varghese, who was at that time, working as UPSA, that the appointment of the 1st respondent was overlooking his claim for promotion as a High School Assistant (Maths) under Rule 43 of Chapter XIVA of the Kerala Education Rules. The dispute between the aforesaid Fr. M.M. Varghese and the 1st respondent finally culminated in Ext.P3 order of the Supreme Court in Civil Appeal No.7144/2008. The Supreme Court found that Fr. M.M. Varghese was entitled to appointment as HSA by promotion and that the service of the 1st respondent from the date of his appointment in 1986 till a regular vacancy arose in the cadre of High School Assistant (Maths) will be treated as an appointment as Upper Primary School Assistant. Ext.P3 order of the Supreme Court is dated 5.12.2008. A consequential order was issued by the Manager of the School as order No.46/2015 dated 29.2.2016 (Ext.P4) through which the aforesaid Fr. M.M. Varghese was promoted notionally as High School Assistant with effect from 2.6.1986 against the vacancy in which the 1st respondent was appointed. The 1st respondent was appointed as High School Assistant (Maths) from 1.6.1988 against the retirement vacancy which arose on the promotion of one Fr. K.I. George as Headmaster. Through Ext.P5 dated 16.3.2017, the District Educational Officer, Aluva proposed to refix the pay of the 1st respondent by treating him as UPSA for the period from 26.6.1986 to 31.5.1988. The 1st respondent thereupon approached this Court by filing W.P.(C)No.12919/2017 principally on the ground that the proceedings for re-fixation of pay and allowances in the manner indicated in Ext.P5 should not be permitted at this distance of time and that no recovery can be ordered considering the fact that nearly 10 years had passed since Ext.P3 order of the Supreme Court. It was also submitted that during the entire period in question, i.e., from 26.6.1986 to 31.5.1988, the 1st respondent had actually rendered service as HSA (Maths) and still further that Fr. M.M. Varghese, who was found entitled to promotion with effect from 26.6.1986 had not been granted any benefit except the benefit of notional appointment with effect from that date.

(3.) The learned single Judge, on a consideration of the matter, found that there was no financial loss to the State Exchequer and further that it is open to the State to initiate proceedings against the Manager for recovery of loss if any such loss had been occasioned. The learned single Judge also took note of the fact that the 1st respondent had discharged service as HSA for the period from 26.6.1986 to 31.5.1988 and quashed the proposal to re-fix the salary of the 1st respondent.