IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 17956 of 2008(K) -------------------------- PETITIONER: --------------- A.ANITHA, HIGH SCHOOL ASSISTANT(MATHS) AIDED HIGH SCHOOL, PARUDUR, PALLIPPURAM, PATTAMBI-679 305 PALAKKAD DISTRICT. BY ADV. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOPVERNMENT SECRETATIAT, THIRUVANANTHAPURAM 2. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM 3. THE MANAGER, AIDED HIGH SCHOOL PARUDUR, PALLIPPURAM, PATTAMBI-679305, PALAKKAD DT. 4. K.N.NARAYANAN, HIGH SCHOOL ASSISTANT (MATHS), AIDED HIGH SCHOOL, PARUDUR PALLIPPURAM, PATTAMBI-679305, PALAKKAD DT. BY ADV. SRI.V.A.MUHAMMED FOR R3 AND R4 SRI.K.E.HAMZA GOVT.PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.17956/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ORDER NO.K.DIS.B3/2558/2001 DT 27.5.2002 ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF G.O(MS) NO.275/99/G.EDN.DATED 9.11.1999 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF ORDER DT 27.7.2001 APPOINTING THE 4TH RESPONDENT AS H.S.A.(MATHS) BY THE 3RD RESPONDENT. EXT.P4: COPY OF G.O.(RT) NO.614/2004/GL.EDN. DATED 6.2.2004 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF REVISION PETITION DATED 17TH APRIL, 2007 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P6: COPY OF JUDGMENT DATED 18.10.2007 IN WP(C) NO.23789/07. EXT.P7: COPY OF GO(RT) NO.2388/08/G.EDN. DATED 27.5.2008 ISSUED BY THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 17956 OF 2008 K ==================== Dated this the 22nd day of September, 2008 J U D G M E N T Petitioner and the 4th respondent are HSA(Maths) in the school of which, the 3rd respondent is the Manager. 2. Initially, the petitioner was appointed in a temporary vacancy for the period 6/6/2001 to 14/8/01. Subsequently, against a permanent vacancy, she was appointed w.e.f. 11/10/2001 and her appointment was also approved. In the meantime, there arose two new vacancies of HSA (Maths) w.e.f. 15.7.2001 following Ext.P1 staff fixation order and a voluntary retirement vacancy effective from 11/10/2001. The 4th respondent was appointed against one of the vacancies effective from 27/7/2001 and his appointment was approved w.e.f.11/10/2001. 3. The 4th respondent filed a revision against the order of approval limiting it to 11/10/2001 and that was rejected by the DPI. The revision against the order of DPI was also rejected by Government order dated 3/7/2003. These orders were challenged before this court in WP(C) No.26068/03 and by judgment dated 1/10/2003, the matter was remitted to the 1st respondent for reconsideration. The 1st respondent reconsidered WPC 17956/08 :2 : the matter and by Ext.P4 order remitted the matter to be reconsidered by the 2nd respondent. The 2nd respondent in turn considered the matter and by order dated 7/5/2004 rejected the claim of the 4th respondent for preponing his date of approval. 4. Against the order of the 2nd respondent dated 7.5.2004, Ext.P5 revision was filed by the 4th respondent. A reading of Ext.P5 shows that though not specifically referred to, contentions have been raised relying on Ext.P2 Government Order in which, Government have clarified that the services of leave substitutes like the petitioner will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. Apparently, in view of this, the 4th respondent prayed that the appointment of the petitioner herein, who was the 2nd respondent in the revision, be notionally approved as HSA(Maths) from 15/7/01 to 11/10/01 and that his appointment be approved as HSA(Maths) with effect from 27/7/2001. 5. It would appear that complaining of delay in the disposal of Ext.P5 revision, the 4th respondent approached this court by filing WP(C) NO.23789/07 and that writ petition was disposed of by Ext.P6 judgment directing disposal of Ext.P5 revision. Thereafter the 1st respondent WPC 17956/08 :3 : considered the matter, and by Ext.P7, disposed of the revision. The relief granted in Ext.P7 reads as follows: In the circumstances, Government are pleased to order that the appointment of Sri.K.N.Narayanan as H.S.A(Maths) in Aided High School Parudur be approved with effect from 27.7.2001 if he is otherwise eligible. Appointment of Smt.A.Anitha as H.S.A.(Maths) be approved with effect from 24.9.2001 and that of Sri.K.N.Neelakantan as H.S.A(Maths) with effect from 11.10.2001, if they are otherwise eligible. 6. A reading of the relief granted in Ext.P7 would thus show that while the petitioner's appointment was ordered to be approved w.e.f. 24/9/01, the 4th respondent's approval was w.e.f. 27/7/01. It is on account of this resultant position that the petitioner has approached this court. 7. Evidently, on 15/7/2001, there arose two new vacancies of HSA(Maths). It is a fact that before that date, the petitioner was appointed in a temporary vacancy also. It is recognising this superior claim of the petitioner that 4th respondent in Ext.P5 revision filed by him also prayed that the petitioner's appointment be approved from 15/7/01. Even during the course of the hearing, the 4th respondent stands by the prayer made in Ext.P5. Ext.P2 Government order also recognises the petitioner's right to have her service regularised against the newly created WPC 17956/08 :4 : vacancies effective from 15/7/01. 8. However, the learned Government Pleader raises a technical argument that after her appointment was approved w.e.f. 11/10/2001, petitioner has not raised any challenge against the fixation of that date. Though this argument of the learned Government Pleader would appear to be well founded at the first blush, I am not inclined to accept the same, the reason being that the petitioner can be said to be aggrieved only by Ext.P7. If that be so, the contention that the petitioner did not challenge fixation of 11/10/2001 or that there is delay on the part of the petitioner in raising the claim which is now urged, are devoid of any substance. In my view, the claim of the petitioner is fortified by Ext.P2 Government Order also. If that be so, the effective date of approval in the case of the petitioner is liable to be rearranged to 15/7/2001 as claimed by the petitioner. 9. Learned Government Pleader contended that if the petitioner's approval is preponed to 15/7/2001, that will be giving effect to date prior to his regular appointment viz. 11.10.2001. Though it may be factually so, still having regard to the fact that the petitioner was entitled to have her service regularised against the vacancies created with effect from WPC 17956/08 :5 : 15/7/2001, this submission has no force. Necessarily, the 2nd respondent shall pass consequential orders in so far as the petitioner in the manner as directed above and in so far as the 4th respondent as directed in Ext.P7 Government Order. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp