IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WA.No. 920 of 2008 --------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25519/2007 Dated 09/01/2008 .................................. APPELLANT: 7TH RESPONDENT IN WPC: ---------------------------------------------------------- K.H. JOSEPH, UPPER PRIMARY SCHOOL ASSISTANT, SEETHI SAHIB MEMORIAL UPPER PRIMARY SCHOOL, POOZHANAD, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: RESPONDENTS 1 TO 6 AND PETITIONER IN WP(C): ----------------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT., DEPARTMENT OF GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER NEYYATTINKARA, THIRUVANANTHAPURAM. 5. THE ASSISTANT EDUCATIONAL OFFICER, KATTAKKADA, THIRUVANANTHAPURAM. 6. THE MANAGER, SEETHI SAHIB MEMORIAL UPPER PRIMARY SCHOOL, POOZHANAD, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT 7. MINI SAMSON, HEADMISTRESS, SEETHI SAHIB MEMORIAL UPPER PRIMARY SCHOOL, POOZHANAD, KATTAKADA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K. SANDESH RAJA R7 BY ADV. SRI. S.P. ARAVINDAKSHAN PILLAI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.A.No.920 of 2008 ======================== Dated this the 11th day of April, 2008. JUDGMENT Balakrishnan Nair,J. The seventh respondent in the writ petition is the appellant. The seventh respondent herein was the writ petitioner. The facts of the case are as follows: 2. The appellant and the seventh respondent were protected U.P.S.As. of a school managed by the sixth respondent. The appellant being senior among the protected Teachers was recalled in the vacancy that arose during the academic year and she rejoined duty in the school on 29.3.2004. More than one vacancy of U.P.S.A. arose on the reopening of the school in the next academic year on 1.6.2004. That will be evident from the appointment of a fresh hand from the open market, Smt.Bindhu as U.P.S.A. on 2.6.2004. The Manager took steps to recall the seventh respondent herein to the vacancy of U.P.S.A. which arose from 1.6.2004 and final order recalling her was passed on WA 920/08 -: 2 :- 12.7.2004 and she rejoined duty on 14.7.2004. The Headmistress of the school was to retire from service on 30.6.2004. Therefore, she was granted special leave under Rule 63 of Chapter XIVA of Kerala Education Rules with effect from 1.6.2004. In the vacancy which arose on 1.6.2004, a senior Teacher was appointed temporarily. Later the writ petitioner was put in charge of the post of Headmistress from 19.7.2004. Later the Manager proposed to appoint the writ petitioner on a regular basis. The writ petitioner was appointed as Headmistress in the school with effect from 23.9.2004 by order dated 4.10.2004. By Ext.P8, the Assistant Educational Officer rejected approval for it. The matter was carried in appeal. The District Educational Officer affirmed Ext.P8 by Ext.P10 order. By Ext.P15, the Director of Public Instruction upheld the same. The Government also rejected the claim of the seventh respondent herein by Ext.P17. The said respondent challenged those adverse orders by filing W.P.(C)No.25519 of 2007. A learned single heard and allowed the writ petition. Hence, this appeal. 3. The appellant herein was the senior most qualified U.P.S.A. The seventh respondent was a graduate U.P.S.A. having WA 920/08 -: 3 :- all the requisite qualifications. Therefore, by virtue of Rule 45 of K.E.R., she is entitled to preference in the matter of appointment to the post of Headmistress. But according to the appellant, a vacancy of Headmaster arose on 1.6.2004 by virtue of Rule 63 of K.E.R. It should be treated as a regular vacancy. A Division Bench of this Court in Bhaskaran v. Viswanathan - 2000(2) K.L.T. 64, held that the said vacancy between first June and last June of 2004 is only a temporary vacancy and therefore, it cannot be filled up by virtue of Rule 7B of Chapter XIVB of K.E.R. This decision does not lay down the correct legal position, it is submitted. In fact, the said rule has no application at all. The appellant would submit that the seventh respondent is only a protected Teacher. When the vacancy arose she was not on the rolls of the school. Therefore, she has no claim for the post of Headmistress in view of the several decisions of this Court. She joined the school only on 14.7.2004, When the vacancy arose, the appellant was the only qualified hand available and therefore, the statutory authorities held in favour of the appellant rightly. So, there was no reason to interfere with those orders. Therefore, the appellant prayed for reversing the judgment of the WA 920/08 -: 4 :- learned single Judge. 4. The vacancy that arose in a school can be anticipated by the Manager when the admissions are normally closed in the month of May of that calender year. So, at the beginning of the academic year, the Manager can make appointments to the anticipated vacancies. By virtue of Rule 12B of Chapter XXIII of K.E.R. such appointments will take effect from the date of appointment, though the vacancies are sanctioned as per the staff fixation order which normally takes effect from 15th of July of that year. 5. In this case, two points arise for our decision. The first point is when the regular vacancy of Headmistress arises in the school, that is, whether it is on 1.6.2004 or on 1.7.2004. In view of the leave granted to the existing incumbent in the post of Headmaster as per Rule 63 of Chapter XIV of K.E.R, the learned counsel for the appellant submitted that the above Rule being a special provision it should be deemed that a regular vacancy arose with effect from 1.6.2004. We find it difficult to accept it. As long as the existing incumbent is in service, only temporary appointment can be made to that post. There cannot be two WA 920/08 -: 5 :- Headmistress for the school during the month of June, 2004. So, the contention of the appellant regarding the date of occurrence of the vacancy cannot be accepted. The vacancy arose only on 1.7.2004. 6. The second point is whether because of the delay in recalling the seventh respondent in the writ petition her claim for the post of Headmaster will be defeated. The Manager could not go for direct recruitment to the post of U.P.S.A., before accommodating the seventh respondent. The Manager should have moved earlier and she should have been recalled to the school in time. If she was recalled and rejoined duty before 1.7.2004, she could have got preferential claim under Rule 45 of K.E.R. for appointment to the post of Headmistress. The learned Judge took the view that though she rejoined the school on 14.7.2004, recalling should be given retrospective effect from the date of occurrence of vacancy. In that view of the matter, the learned Judge held that the seventh respondent in the writ petition should be accommodated as Headmaster. We think, it is a reasonable view on facts. In law also the said finding is sustainable. It is common case that the academic year began on WA 920/08 -: 6 :- 1.6.2004. So, the writ petitioner was liable to be recalled and reappointed on that date before a fresh hand was appointed on 2.6.2004 as U.P.S.A. Justice has been done to the seventh respondent by the judgment under appeal. So, we find no reason to interfere with the judgment of the learned single Judge. We agree with the reasons and conclusions of the learned single Judge. Accordingly, the writ appeal is dismissed. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 11/4