State Not Obliged To Pay Salary To Teachers Whose Appointments Are Void Ab Initio: Kerala High Court

The Kerala High Court on Tuesday ruled that the State government is not obliged to pay salary to teachers who were appointed in violation of the Kerala Education Rules and the Kerala Education Act.

A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha held that if the appointment defies the law, it is the Manager who is responsible and the Government has no obligation to pay salary to the teacher.

"If directions are issued to pay salary to teachers whose appointments are void ab initio, the same would amount to giving a premium for those who are flouting the law, and it is trite that the power conferred under Article 226 cannot be invoked for perpetuating a palpable illegality."

The Manager of an aided School appointed two teachers (respondents 2 and 3) as Upper Primary School Assistants, but the appointments were not approved by the Educational Officer since they were made overlooking the preferential claim of two other teachers. The teachers with preferential claims were subsequently appointed to these posts.

Thereafter, the Manager approached the Educational Officer seeking orders to rearrange the appointments of respondents 2 and 3. Although this was rejected by the Officer, the Government directed the appointment of 2nd respondent. There was no direction for the appointment of the 3rd respondent since there were only three vacancies for making the rearrangement and all the three vacancies would be filled up with the appointment of the 2nd respondent. 

The 2nd and 3rd respondents approached the High Court seeking a direction to the Government to direct the Educational Officer to approve their appointment for payment of salary with effect from the date of their initial appointment, as they had worked in the school during the relevant periods.

The Single Judge held that a teacher who has worked in a school pursuant to the appointment against a sanctioned post is entitled to salary, even if the appointment is not approved. Similarly, it held that a teacher who has worked in a school pursuant to the appointment is entitled to salary, if payment of salary would not create an additional burden to the Government, even if the appointment is not made against any sanctioned post.

Aggrieved by this decision, the State moved the Division Bench with an appeal. 

Senior Government Pleader V. Vinitha submitted that in terms of the provisions of the Act and the Rules, the Government is obliged to pay salary only to a teacher who is appointed against a sanctioned post and whose appointment is approved by the Educational Officer.

Advocates Kaleeswaram Raj, Varun C. Vijay and Thulasi K. Raj appeared for the respondents and contended that since the second respondent had worked in the school from 04.06.2004 to 04.10.2005 in a sanctioned post and since salary was not paid to any other teacher for the said period, she is entitled to be paid salary for the said period for having worked in the said post.

It was also argued that even if it is found that the scheme of the Act and the Rules is such that salary cannot be paid to a teacher without the appointment being approved by the competent authority, having regard to the peculiar facts of this case, this Court would be justified in directing payment of salary to teachers who had worked in the school pursuant to the appointments made by the Manager, especially when the Government has not paid salary to anyone else for the said period.

The Court went through relevant statutory provisions and decisions to conclude that even though the Government is obliged to pay salary to the teachers, the said obligation is subject to the condition that only persons who possess the requisite qualification as prescribed by the Government shall be appointed and that such appointments shall be in accordance with the Rules.

It was also that appointments shall be effective only from the date on which the teacher is admitted to duty, that too, only if the appointment is duly approved. In this case, the appointments were not approved by the competent authority as they were made ignoring the preferential claim of two other teachers under Rule 51A of Chapter XIVA .

"In other words, the appointments of the petitioners in the school with effect from 04.06.2004 and 07.01.2005 respectively were illegal, being contrary to the provisions contained in Chapter XIVA of the Rules and hence void."

The Bench observed that if the appointments are illegal and void, the scheme of the Act and the Rules envisage that the Government does not have any obligation to pay the salary to the teachers, for grant of salary to such teachers would amount to a premium on the conduct of the Manager in flouting the statutory provisions

Therefore, the Court was of the opinion that the views of the Single Judge were unsustainable in law.

It was held that although it is true that if work is extracted from a person, he shall be paid remuneration for the same, if the appointment defies the Act and the Rules, it is the Manager who is responsible and the Government has no obligation to pay salary to the teacher.

The Court agreed that in Bindu Thomas v. State of Kerala [2007 SCC Online Ker 605], a Division Bench had observed that a teacher who was appointed ignoring the preferential claim of another under Rule 43 of Chapter XIVA is entitled to salary for the period during which she had worked. However, it was of the view that the solitary statement in the judgment cannot be considered as law declared to have a binding effect as is contemplated by Article 141. 

Similarly, it was found that the decision in Jolly v. State of Kerala [2003 (2) KLT 192] cannot be said to be good law, and the decision in Suma Chandranath also cannot be considered as law declared to have a binding effect as is contemplated by Article 141. The Court also clarified that the doctrine of indoor management (Turquand's Rule) and the de facto doctrine have no application in the case. 

Accordingly, the appeal was allowed and the decision of the Single Judge was set aside. 

Case Title: State of Kerala & Ors. v. Manager & Ors.

Citation: 2022 LiveLaw (Ker) 346

Click Here To Read/Download The Order