IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 23298 of 2008(W) ------------------------------------- PETITIONER(S): ------------------------ GEP THOMAS.K, HIGH SCHOOL ASSISTANT (MATHEMATICS), C.S. SUBRAHMANIANPOTTI MEMORIAL GIRL'S SCHOOL, KARUNAGAPPALLY, KARUNAGAPPALLY.P.O, KOLLAM. BY ADVS.MR.P.K.VIJAYAMOHANAN MR.NISHIL.P.S. RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. 5. THE MANAGER, C.S. SUBRAHMANIANPOTTI, MEMORIAL GIRL'S HIGH SCHOOL, KARUNAGAPPALLY, KARUNAGAPPALLY.P.O, KOLLAM. 6. SMT.GEETHA.S, U.P. SCHOOL ASSISTANT, C.S. SUBRAMANINANPOTTI MEMORIAL GIRL'S HIGH SCHOOL, KARUNAGAPPALLY, KARUNAGAPPALLY.P.O, KOLLAM. BY GOVERNMENT PLEADER SMT.T.B.RAMANI FOR R1 TO 4 BY ADVS. MR. P.V.MOHANAN FOR R5 MR.K.RAVEENDRAN FOR R6 MR.ANIL KUMAR M.SIVARAMAN FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23298/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DT. 14.8.01 ISSUED TO THE PETITIONER. P2:- COPY OF THE APPOINTMENT ORDER DULY APPROVED BY THE 4TH RESPONDENT DT. 2.9.02. P3:- COPY OF THE COMMUNICATION NO.A4.1214/07/L.DIS. DT. 3.12.07 FROM THE OFFICE OF THE 4TH RESPONDENT. P4:- COPY OF THE ORDER NO.B4-7152/04 DT. 5.10.04 OF THE 4TH RESPONDENT. P5:- COPY OF THE APPEAL FILED BY THE 6TH RESPONDENT BEFORE THE DEPUTY DIRECTOR OF EDUCATION DT. 27.9.05. P6:- COPY OF THE ORDER NO.B3/20319/06 DT. 11.12.06 OF THE DEPUTY DIRECTOR OF EDUCATION. P7:- COPY OF THE ORDER NO.ET1/58586/07/DPI/D.DIS DT. 31.10.07 OF THE DEPUTY DIRECTOR OF EDUCATION. P8:- COPY OF THE COMMUNICATION NO.66251/L2/07/G.EDN. DT. 26.11.07 OF THE IST RESPONDENT. P9:- COPY OF THE ORDER NO.ET1/81950/07/DPI DT. 3.7.08 OF THE 2ND RESPONDENT. P10:- COPY OF THE EXTRACT FROM THE SERVICE BOOK OF THE PETITIONER. R5(a):- COPY OF THE JUDGMENT IN OP. 17698 DT. 29.2.2000. R6(a):- COPY OF THE GO(MS) 275/99 G.EDN. DT. 9.11.99. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.23298 of 2008-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2009. JUDGMENT The writ petition is filed by the petitioner who is presently working as High School Assistant having promoted to that post on 9.6.2003. The challenge is against the orders passed by the Deputy Director of Education and confirmed in revision by the Director of Public Instruction which are produced as Exts.P6 and P7. The circumstances leading to the dispute which is the subject matter of the writ petition, are the following: 2. The petitioner and the 6th respondent are the rival claimants. the petitioner was originally appointed in the school as U.P.S.A. on 2.9.2002. That was approved from 2.9.2002 to 31.3.2003 and from 2.6.2003 onwards. A vacancy arose due to the promotion of one H.S.A. as H.S.S.T. and the petitioner was promoted to the post of H.S.A. (Maths) by order dated 9.6.2003. The 6th respondent was appointed on 9.6.2003 as U.P.S.A. in the vacancy which arose due to the promotion of the petitioner. The 6th respondent was originally appointed as U.P.S.A. in a maternity leave vacancy from 6.6.2002 to 17.10.2002. That was approved on 12.6.2003 by the District Educational Officer. wpc 23298/2008 2 3. It appears that the 6th respondent filed a petition before the District Educational Officer staking a claim for appointment against the vacancy which arose on 2.9.2002 to which the petitioner was appointed. The matter was taken up before this court by the 6th respondent in Writ Petition No.17296/2004 and this court directed the District Educational Officer to pass orders on her representation after hearing the petitioner and the respondents therein. Accordingly, the parties were heard. As per Ext.P4 order, the claim raised by the 6th respondent was rejected. It was found that the 6th respondent has no claim under Rule 51-A of Chapter XIV-A of K.E.R. in the vacancy which arose on 2.9.2002, to which the petitioner was appointed. 4. The 6th respondent filed an appeal as Ext.P5 on 27.9.2005 against Ext.P4 order dated 5.10.2004. That was disposed of by Ext.P5. The Deputy Director, after hearing the respective parties, directed the District Educational Officer to regularise the appointments of U.P.S.As. made by the Manager from 18.10.2002 and it was held that the 6th respondent has a claim to the post of U.P.S.A. from 18.10.2002. There was a direction to realise excess salary, if any, paid to the incumbents by way of irregular appointments after regularising their appointments within three months without fail. That was challenged by the petitioner and by the Manager wpc 23298/2008 3 before the Director of Public Instruction. Ext.P7 is the order passed by the Director of Public Instruction. The Manager filed a revision before the Government, wherein Ext.P8 order of stay was granted. It appears that the Director of Public Instruction again passed a fresh order as per Ext.P9 confirming the order Ext.P7. 5. Learned counsel for the petitioner mainly contended that the petitioner was appointed on 2.9.2002 and as on that date the 6th respondent was already appointed in the school in a maternity leave vacancy which arose on 6.6.2002 and that vacancy terminated only on 17.10.2002. Therefore, it is submitted that the 6th respondent has no claim under Rule 51-A of Chapter XIV-A K.E.R. It is further pointed out that the appointment of the petitioner was approved as per Ext.P2 order dated 20.5.2003. Prior to that, no claim was raised by the 6th respondent before the District Educational Officer. It is long after the approval that the 6th respondent raised a claim before the District Educational Officer. It is submitted that since the claim under Rule 51-A of Chapter XIV-A K.E.R. is not allowable to the 6th respondent, the order Ext.P6 passed by the Deputy Director of Education without considering any of the legal issues, is perfectly illegal. It is pointed out that the Director of Public Instruction in Ext.P7, has not considered anything on the merits and in the subsequent wpc 23298/2008 4 order passed by the Director of Public Instruction, on Ext.P9 also, no detailed reasons have been pointed out. 6. Learned counsel appearing for the Manager submitted that subsequent to the appointment of the 6th respondent on 9.6.2003, two other vacancies have arisen and the said vacancies have also been filled up. In fact, the Manager had agreed before the Deputy Director of Education to re- arrange the appointments made by him in the vacancies which arose after 9.6.2003 and the recognition of the claim of the 6th respondent by the Deputy Director of Education is without reference to the provisions of Rule 51-A of Chapter XIV-A K.E.R. It is pointed out that the Manager had filed a revision challenging Ext.P7 order which was disposed of by the Government going by the reference in Ext.P9, by directing the Director of Public Instruction to consider the matter. But no hearing was conducted by the Government also before issuing such a direction. It is pointed out that if at all the 6th respondent has got a claim, that can only be in respect of vacancies which arose subsequently and not in respect of vacancy against which the petitioner was appointed and approval of which was granted by the District Educational Officer. 7. Learned counsel for the 6th respondent submitted that the Manager was bound to accommodate the 6th respondent in the vacancy which arose wpc 23298/2008 5 on 2.9.2002, as she was already working as a leave substitute and reliance is placed on a Government Order dated 9.11.1999. It is pointed out that overlooking the claims of the 6th respondent, the petitioner was appointed on 2.9.2002. 8. Before going into the further details, one aspect also has to be considered. Learned Govt. Pleader has made available the files leading to the impugned orders. It is seen that the Government as per letter dated 27.2.2008 directed the Director of Public Instruction to reconsider the issue after hearing all concerned including a revision petition. A copy of the revision petition filed before the Government was forwarded to the Director of Public Instruction. It is clear that the argument raised by the learned counsel for the Manager that the Government has not disposed of the revision in accordance with law, is correct. It is not necessary, at this distance of time, to direct the Government to hear the revision petition, especially since the said action is not under challenge in this writ petition.. 9. Learned counsel for the petitioner and the learned counsel for the Manager submitted that the 6th respondent cannot have a claim under Rule 51-A of Chapter XIV-A K.E.R., as she cannot be treated as a teacher who has been “relieved” as on 2.9.2002, which alone will satisfy the requirement of Rule 51-A. Reliance is placed on Ext.R5(a) judgment of this court in wpc 23298/2008 6 O.P.No.17698/1995. Going by Rule 51-A, qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the school. This aspect was considered in Ext.R5(a) judgment. It was held as follows: “In view of the fact that the vacancy arose in 1993 and at that time the petitioner did not have any approved service, the petitioner cannot claim the benefit of Rule 51-A of Chapter XIV-A of the K.E.R. The subsequent approval of appointment of the petitioner in 1996 cannot clothe the petitioner with any right to be considered for appointment in 1993.” Obviously, going by the plain terms of Rule 51-A, the 6th respondent was not relieved from service as on 2.9.2002 as stipulated under any of the contingencies provided therein. The vacancy was terminated only on 18.10.2002. The approval was granted later. If that be so, the claim raised under Rule 51-A cannot be sustained and the Manager cannot be faulted for not recognising a claim to him under Rule 51-A. In fact, the Deputy Director of Education has also not found in favour of the 6th respondent based on such a claim. He has only recognised the right of the 6th respondent for the post of U.P.S.A. from 18.10.2002 only. In that view of the matter, the Deputy Director was not right in interfering with the order of approval granted in favour of the petitioner. wpc 23298/2008 7 10. Presently, the following position emerges from the entire scenario. The petitioner was promoted as H.S.A. on 9.6.2003 and in the consequent vacancy of U.P.S.A. the 6th respondent was appointed. Both these appointments have not been approved because of the pendency of the disputes between them. It is also seen that subsequently two more appointments have been made by the Manager in the category of U.P.S.A. 11. Therefore, P6, P7 and P9 are hereby quashed. The Deputy Director of Education will reconsider the matter afresh in the light of the findings rendered above, after hearing the petitioner, the Manager and the 6th respondent or any other claimants who have been subsequently appointed. The respective parties will be allowed to raise all contentions by the Deputy Director of Education. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/