IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 RP.No. 191 of 2008(E) --------------------- AGAINST THE JUDGEMENT IN WA.797/2007 Dated 04/12/2007 .................... PETITIONER/3RD RESPONDENT ------------------------------- ANITHAKUMARI K.S., H.S.A. MATHEMATICS (UNDER ORDERS OF PROMOTION AS HIGHER SECONDARY SCHOOL TEACHER, MATHEMATICS), S.N. VOCATIONAL HIGHER SECONDARY SCHOOL, NANKICITY KANJIKUZHI P.O., IDUKKI DISTRICT. BY ADV. SRI.BENOY THOMAS RESPONDENTS: APPELLANT & RESPONDENTS 1,2 AND 4 ----------------------------------- 1. N.M.GIGIMOL, H.S.A. MATHEMATICS S.N.VOCATIONAL HIGHER SECONDARY SCHOOL NANKICITY, KANJIKUZHI P.O., IDUKKI DISTRICT. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. 3. MANAGER, S.N.VOCATIONAL HIGHER SECONDARY SCHOOL, NANKICITY, KANJIKUZHI P.O. IDUKKI DISTRICT. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION (T) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R4 BY GOVT.PLEADER SRI R.LAKSHMINALRAYANAN BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R3 SRI.T.RAMPRASAD UNNI FOR R3 SMT.I.SHEELA DEVI FOR R1 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.P.NO.191 OF 2008 in W.A.NO.797 OF 2007 -------------------------------- Dated this the 11th day of August,2008 O R D E R Raman,J. Review petitioner is the 3rd respondent in W.A.No.797/2007, filed by the lst respondent herein as appellant against the judgment of the learned Single Judge. Both the appellant and the review petitioner were High School Assistants. Review petitioner had 41 days of unapproved service at the time when a vacancy arose for the post of Higher Secondary School Teacher. The management, in accordance with G.O.(MS).No.162./98/G.Edn. dated 13/5/1998, appointed the review petitioner herein. The lst respondent challenged such appointment contending that she is the senior most entitled to be appointed in the vacancy to be filled up as per the G.O. The issue relating to the appointment of Teachers in Higher Secondary School was under consideration in Dolichan's -2- R.P.No.191/2008 case before the Apex Court and in the final judgment, all the appointments made based on an interim order and also based on the Government Order were given protection. The review petitioner claiming the benefit of the Apex Court's judgment in M.M.Dolichan and others v . State of Kerala & others (2001 (1) SCC 151) contended that her appointment is made based on the Government order as referred to above and protected by the Supreme Court, which was accepted by the learned Single Judge, the correctness of which was challenged in the writ appeal. The Division Bench of this Court, after elaborate consideration of the points involved, came to the conclusion that when there is no element of selection of 25% quota, the 4th respondent who was the senior most qualified teacher, was entitled to get appointment in the vacancy of HSST which arose in the year 1998-99, not the petitioner therein, since she was not in service at that time. The petitioner can aspire for the post of HSST (Junior) only for the year 2001-02. The Division Bench allowed the appeal setting aside -3- R.P.No.191/2008 Ext.P11 and declared that the writ petitioner was the legitimate claimant for the post of HSST, the vacancy of which arose on 24/8/1998. However regarding the salary already paid to the 3rd respondent it was directed not to be recovered. It was also held by the Division Bench that the petitioner herein is not entitled to get the benefit of the judgment in Dolichan's case, since the appointment of the review petitioner was not on the strength of the interim order passed by the Apex Court. It was further held that she was not entitled to get the benefit of sub-para (3) of para 4 of Dolichan's judgment, since both Gigimol and Anithakumari were fighting each other from 1998 onwards. Since the petitioner herein (3rd respondent in the writ appeal) was not an approved Teacher on the date of occurrence of the vacancy as HSST, Government had rightly held that she had no right to claim the post of HSST, since she was not an approved teacher. It was held in paragraph 4 of the judgment in writ appeal that indisputedly, the petitioner (in the writ petition) is senior to the 3rd respondent, since she had put in -4- R.P.No.191/2008 more than six years of service while the 3rd respondent had put in only 41 days. The petitioner was also fully qualified for the post of HSST on the date of occurrence of vacancy. If that be so, there is no question of a fresh selection, since petitioner was the senior most qualified HSA available in the school, when the vacancy of HSA arose on 24/8/1998. The 3rd respondent was not in service on the date of occurrence of the vacancy. 2. The above finding of the Division Bench on facts could not be assailed by the review petitioner and there is no error apparent on the face of record in the judgment under review. As far as the principle held by the Division Bench is concerned, it is based on a fact that the review petitioner was not in service as on the date of occurrence of the vacancy. She had only 41 days of service that too is not approved at the time of consideration. Admittedly, the 3rd respondent herein was senior to the petitioner. The contention of the counsel for the review petitioner is that in the earlier two decisions of the Division Bench of this Court which were not -5- R.P.No.191/2008 referred to in the writ appeal judgment, a different view is taken. Those judgments are produced as Annexures 14 and 15 along with I.A.No.466/2008. We have gone through Annexures 14 and 15 and we do not find any ratio decided in those cases. In the factual situation arising in the present case and after hearing both sides, we do not find any error apparent on the face of the record or any other valid ground made out for review and we find no merit in the review petition. Accordingly, the review petition is dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.