IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 31870 of 2010(G) -------------------------- PETITIONER(S): --------------- SOOSAMMA THOMAS, UPPER PRIMARY SCHOOL ASSISTANT, B.E.M.U.P. HIGH SCHOOL, PALAKKAD-678014. BY ADV. SRI.V.RAJENDRAN RESPONDENT(S): --------------- 1. THE CORPORATE MANAGER, ALL C.S.I. SCHOLS IN MALABAR & WAYNAD, BANK ROAD, CALICUT PIN-676301. 2. ASSISTANT EDUCATIONAL OFFICER, OTTAPPALAM-670191. 3. DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM-670191. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, ALONG WITH WPC NOS.32638/2010 AND 32657/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).Nos.31870, 32638 & 32657 of 2010 --------------------------------------------- Dated this the 29th day of October, 2010 JUDGMENT In all these three Writ Petitions common questions arise for consideration and therefore, they are being disposed of by this common judgment. The educational agency in all the three cases is the same. 2. Jyothi Minimol.B., the petitioner in W.P.(C) No.32657 of 2010, was appointed as Lower Primary School Assistant in B.E.M.U.P. School, Trikkaderi, by the first respondent Corporate Manager, in a leave vacancy for the period from 20.6.2008 to 9.8.2010, as per Exhibit P2 appointment order. The proposal for approval of appointment was rejected by the Assistant Educational Officer, Ottappalam as per Exhibit P3 order dated 21.8.2008 on the ground that the period of appointment during the academic year 2008-2009 was less than one year and as per G.O.(P) No.104/2008/G.Edn. dated 10.6.2008, the period of appointment for less than one academic year cannot be WPC Nos.31870/2010 & conn. 2 approved. The Manager filed an appeal against Exhibit P3 order before the District Educational Officer. The appeal was rejected as per Exhibit P5 order dated 9.12.2008 on the ground that reasons for rejecting the appointment existed even then. 3. Sherin Reeba Koshy, the petitioner in W.P.(C) No.32638 of 2010, was appointed as U.P.S.A. in B.E.M.U.P. School, Ottappalam, in a leave vacancy for the period from 25.6.2008 to 21.12.2011, as per Exhibit P2 order of appointment. The Assistant Educational Officer rejected the proposal for approval, as per Exhibit P3 order dated 18.8.2008. The appeal filed by the Manager was rejected by the District Educational Officer as per Exhibit P5 order dated 11.12.2008. The reasons stated by the Assistant Educational Officer and the District Educational Officer for rejection of approval of appointment of the petitioner were the same as stated above in the case of Jyothi Minimol.B. 4. Soosamma Thomas, the petitioner in W.P.(C) No.31870 of 2010, was appointed as Upper Primary School WPC Nos.31870/2010 & conn. 3 Assistant in B.E.M.U.P.School, Trikkaderi in a leave vacancy for the period from 19.6.2008 to 14.6.2011 as per Exhibit P2 order of appointment. The Assistant Educational Officer rejected the proposal for approval, as per the order dated 21.8.2008. On appeal filed by the Manager, the District Educational Officer rejected the appeal as per Exhibit P5 order dated 9.12.2008. The reasons for rejection of approval of appointment were the same as in the case of Sherin Reeba Koshy and Jyothi Minimol.B. 5. The learned counsel for the petitioners submitted that though a revision lies before the Director of Public Instruction against the order passed by the District Educational Officer, since the decisions rendered by the authorities below were clearly against the dictum laid down in Unni Narayanan vs. State of Kerala (2009(2) KLT 604), an alternative remedy would not be a bar for maintaining the Writ Petitions under Article 226 of the Constitution of India. 6. The learned counsel for the petitioners also submitted that in the schools under the same management, the WPC Nos.31870/2010 & conn. 4 appointments made subsequently in similar circumstances were approved by the Assistant Educational Officer. 7. In Unni Narayanan vs. State of Kerala (2009(2) KLT 604), it was held thus: “7. In certain circumstances, the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the writ petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government. In this context, we notice R.7A of Chapter XIV A of the K.E.R., which reads as follows : “7A (1) xxx xxx (2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up.” WPC Nos.31870/2010 & conn. 5 8. We notice that sub-r.(3) of R.7A speaks of vacancies, the duration of which is less than one academic year. In other words, if the vacancy is having a duration of one academic year or more, appointment can be made to fill up the same. The term of appointment need not be co-terminous with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved. The reason is that Rule 7A speaks of duration of vacancy and not duration of appointment. So, we are of the view that if appointments are made to vacancies, having duration of one academic year of more, they are liable to be approved. .9. In this Writ Petition and connected Writ Petitions, we notice that the vacancies available arose as a result of retirement or long term leave, which extended to more than one academic year. Therefore, the delay, if any, in making the appointments in these cases, is not of any consequence. If the duration of the vacancy is only one academic year and there is considerable delay in making the appointment, in such cases, what should be done is kept WPC Nos.31870/2010 & conn. 6 open. In the cases before us, there is no such contingency. In the present Writ Petition, though the vacancy arose in June, the appointment was made in October. The vacancy has got a duration of five years and therefore, the delay is negligible. So, there is no reason for not approving it in the time scale of pay, from the date of appointment.” 8. The learned Government Pleader submitted that against the judgment in Unninarayanan vs. State of Kerala (2009 (2) KLT 604), the State has filed a Special Leave Petition before the Supreme Court and the Special Leave Petition is pending. 9. In view of the dictum laid down in Unni Narayanan's case, the orders passed by the Assistant Educational Officer and the District Educational Officer, which are impugned in these Writ Petitions, are unsustainable. 10. Accordingly, the Writ Petitions are allowed. Exhibits P3 and P5 orders in the Writ Petitions passed respectively by the Assistant Educational Officer and the District WPC Nos.31870/2010 & conn. 7 Educational Officer are quashed. The Assistant Educational Officer shall consider afresh the question of approval of appointment of the petitioners, as expeditiously as possible and at any rate, within a period of one month from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioners and the Manager. The Assistant Educational Officer shall dispose of the matter in the light of the dictum laid down in Unni Narayanan vs. State of Kerala (2009(2) KLT 604). The order passed by the Assistant Educational Officer would be subject to the result of the decision of the Supreme Court in the Special Leave Petition filed by the State before the Supreme Court challenging the decision in Unninarayanan vs. State of Kerala (2009(2) KLT 604). K.T.SANKARAN JUDGE csl