IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 32404 of 2010(A) -------------------------- PETITIONER(S): --------------- MARCIA COLLIN NORONHA, H.S.A.ENGLISH, C.C.P.L.M.ANGLO INDIAN HIGH SCHOOL, PERUMANOOR, ERNAKULAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR OF EDUCATION D.D.E'S OFFICE, KAKKANAD, ERNAKULAM-682 030. 2. THE DISTRICT EDUCATIONAL OFFICER, D.E.O'S OFFICE, ERNAKULAM-682 011. 3. THE MANAGER, C.C.P.L.M. ANGLO INDIAN SCHOOLS, PERUMANNOOR, ERNAKULAM, KOCHI-15. 4. SMT.MARY BRINCEL HRTIS, H.S.A., CCPLM ANGLO INDIAN SCHOOL, PERUMANNOOR, ERNAKULAM, KOCHI-15. 5. THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE ADDITIONAL DIRECTOR FOR PLUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001. ADDITIONAL R6 6. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. IMPLEADED AS PER THE ORDER IN I.A.NO.15859 OF 2010 DATED 15.11.2010 GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.32404 of 2010 --------------------------------------------- Dated this the 15th day of November, 2010 JUDGMENT The petitioner was appointed as H.S.A. (English) in CCPLM Anglo Indian High School, Perumanoor, of which the third respondent is the Manager, in a leave vacancy for the period from 17.8.2006 to 31.7.2010. The educational authorities did not approve the appointment of the petitioner in the leave vacancy pointing out various grounds. One of the grounds was that the third respondent school being a newly opened school, without appointing a protected teacher, the petitioner should not have been appointed in the leave vacancy. Another reason stated was the following : The leave vacancy arose on granting leave without allowance for a period of five years from 1.8.2005 to Carol Subrena Beveria and in that vacancy Beena A. was appointed as H.S.A. (English). Later, Beena A. was permanently appointed as H.S.A. (English) against a regular vacancy which arose with effect from 17.8.2006. The appointment of Beena in the leave WPC No.32404/2010 2 vacancy was not approved and, therefore, the appointment of the petitioner also could not be approved. When the matter reached before the Government, Exhibit P1 order was passed on 23.12.2008 granting approval to the appointment of the petitioner as H.S.A. (English) for the period from 17.8.2006 to 31.7.2010. 2. While the petitioner was continuing as H.S.A. (English) in the leave vacancy, a regular vacancy of H.S.A. (English) arose in the school on 1.6.2008 on the promotion of Ivy Louis as Headmistress of the school. In that vacancy, the Manager appointed Smt.Mary Brincel Hurtis, the fourth respondent. However, the appointment of Smt.Mary Brincel Hurtis was not approved by the District Educational Officer and the proposal for approval was rejected by the D.E.O. as per the order dated 26.10.2009. The Manager has filed an appeal to the Deputy Director of Education challenging the order dated 26.10.2009 passed by the District Educational Officer. 3. The petitioner filed W.P.(C) No.37178 of 2009 for WPC No.32404/2010 3 issuing a writ of mandamus commanding the respondents to consider the objection preferred by the petitioner in relation to the appointment of the fourth respondent overlooking the claim of the petitioner and not to grant approval of appointment of the fourth respondent without considering the claim of the petitioner. It was also prayed to issue a declaration that the petitioner being a Rule 51A claimant was entitled for appointment to the permanent vacancy which arose consequent on the promotion of Ivy Louis as Headmistress with effect from 1.6.2008 and to direct the respondents to shift the petitioner to that vacancy and to grant approval. W.P.(C) No.37178 of 2009 was disposed of as per Exhibit P5 judgment dated 30th July, 2010. Taking note of the contentions raised by the petitioner and respondents 3 and 4, the Writ Petition was disposed of with the following directions : “Accordingly, the Writ Petition is disposed of as follows: The question whether the petitioner should have been appointed by the Manager in the vacancy WPC No.32404/2010 4 of H.S.A. (English) which arose in the school on 1.6.2008 or whether the appointment of the fourth respondent in that vacancy should be approved, whether the petitioner has got preferential right under Rule 51A of Chapter XIVA of K.E.R. in the facts and circumstances, whether the fourth respondent would get a right to be appointed under Rule 43 in preference to the petitioner and all other relevant aspects of the case shall be considered by the Director of Public Instructions, taking into account all the relevant facts and after affording an opportunity of being heard to the petitioner, the Manager and the fourth respondent and also any other affected party. The petitioner shall produce a copy of the Writ Petition, a copy of the counter affidavit and certified copy of the judgment before the Director of Public Instructions. The Director of Public Instructions shall dispose of the matter within a period of two months from WPC No.32404/2010 5 the date of receipt of a copy of the judgment. The learned counsel appearing for the Manager submitted that there are vacancies in the school and the petitioner most probably need not have to go out and she would be adequately accommodated, if otherwise it does not become impossible. This submission is recorded.” 4. Thereafter, the Additional Director of Public Instruction passed Exhibit P7 order dated 23.9.2010 rejecting the request of the petitioner as well as the fourth respondent and directing the vacancy to be filled up with a protected hand. In this Writ Petition, the petitioner challenges Exhibit P7 order. 5. After the Writ Petition was filed, the petitioner filed Exhibit P8 revision dated 10.11.2010 before the Government (Additional sixth respondent). Exhibit P8 revision was filed since it was felt that an alternative remedy was available to the petitioner to challenge Exhibit P7 order. WPC No.32404/2010 6 6. The learned counsel for the petitioner submitted that for the time being, it would be sufficient, if Exhibit P8 revision is considered, heard and disposed of by the additional sixth respondent. 7. Taking into account the facts and circumstances of the case, the Writ Petition is disposed of as follows : (i) The additional sixth respondent shall consider and dispose of Exhibit P8 revision dated 10th November, 2010 filed by the petitioner, after affording an opportunity of being heard to the petitioner and respondents 3 and 4, as expeditiously as possible and, at any rate within a period of three months from the date of receipt of a copy of the judgment. (ii) The petitioner shall produce a copy of the Writ Petition, copy of I.A. Nos.15859 of 2010 and 15860 of 2010 as well as the certified copy of the judgment before the additional sixth respondent. WPC No.32404/2010 7 (iii) The petitioner shall also sent copy of the Writ Petition, copy of I.A.No.15860 of 2010 and copy of the judgment to respondents 3 and 4 by registered post and the petitioner shall produce proof of the same before the additional sixth respondent. K.T.SANKARAN JUDGE csl