IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WA.No. 510 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33250/2005 Dated 12/12/2007 .................... APPELLANT(S): 3RD PARTIES ------------------------- 1. SHINE SUDHAKAR A.O. S/O.A.M.SUDHAKARAN, AGED 29 YEARS O.K.R. NIVAS, KOTIYERI, P.O.PARAL THALASSERY, KANNUR DISTRICT. 2. O.K.GOURIKUTTY, D/O.LATE K.YESHODA AGED 54 YEARS, O.K.R. NIVAS, KOTIYERI, P.O.PARAL THALASSERY, KANNUR DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): RESPONDENTS & WRIT PETITIONERS --------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER TELLICHERRY, KANNUR DISTRICT. 3. THE ASSISTANT EDUCATIONAL OFFICER THALASSERY SOUTH 4. THE TAHSILDAR (REVENUE RECOVERY) TELLICHERRY, KANNUR DISTRICT. 5. SRI.KARUNAN, PHYSICAL EDUCATION TEACHER (HIGH SCHOOL SECTION), ONIYAN HIGH SCHOOL KODIYERI, THALASSERY-670 671. 6. K. YESHODA (DECEASED) W/O.ONIYAN KUNHIRAMAN MASTER (LATE) AGED 80 YEARS, MANAGER, ONIYAN HIGH SCHOOL KODIYERI, THALASSERY-670 671. R1 TO R4 BY G.P. SRI. T.B. RAMANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C .N. RAMACHANDRAN NAIR, & P.S. GOPINATHAN, JJ. -------------------------------------------- W. A. No. 510 OF 2008 -------------------------------------------- Dated this the 17th day of May, 2010 JUDGMENT Ramachandran Nair, J. Petitioner is the manager of a UP School under whose management, a High School is also functioning in the same campus. Both the High school and the UP School had separate physical education teachers. However, when the physical education teacher in the High School retired, the DEO in exercise of his authority under Rule 6B(1) of Chapter XXIII of the KER considered the working hours to be assigned to the physical education teacher and found that one physical education teacher can manage both the schools. Therefore on retirement of the physical education teacher in the High School, the physical education teacher in the UP School was shifted to the High School and the physical education teacher's post in the UP Section of petitioner's school was abolished. Petitioner filed revision before the Government and in between petitioner appointed another physical 2 education teacher in the UP School and made an application for restoration of the same post. Even though there was interim order issued by this Court directing the Government to consider restoration, later vide Ext.P8 judgment, Government was given freedom to regularise the appointment only if post is sanctioned. According to the Appellants, government without notice to the appellants held that temporary appointment of physical education teacher in the UP school, pending approval, made by the appellants is irregular. Appellants' challenge against Government orders before the learned single Judge was unsuccessful. After hearing both sides we do not find any ground to interfere with the judgment because after abolition of physical education teacher post in the UP School by the DEO in exercise of powers under Rule 6B(1) of Chapter XXIII, the appellants had no authority to make temporary appointment and apply for grant of the post. In fact, even though Manager is entitled to appoint a teacher pending sanction of the post, the same does not apply to a case where the statutory authority refixed the staff strength and abolished the existing post. In our view, the appellants had no authority to appoint a teacher temporarily to a post which was abolished by the statutory 3 authority while fixing staff strength. The appointment so made is at the risk of the appellants as well as the teacher involved. We therefore do not find any merit in the appeal and the same is accordingly dismissed. (C.N.RAMACHANDRAN NAIR) Judge. (P.S. GOPINATHAN) Judge. kk