IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WA.No. 1009 of 2009() AGAINST THE JUDGEMENT IN WPC.29177/2007 Dated 25/03/2009 APPELLANT(S): RESPONDENT NO.6 SMT. RAJA P.K., D/O. KUNHIKANNAN, U.P.S.A., CHERUMAVILAYI U.P.SCHOOL, P.O.MAVILAYI, KANNUR DIST., RESIDING AT SAROVARAM, VADAKKUMBAD, P.O.MUNDALLOR, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 5 1. SMT. LINI K., ASSISTANT TEACHER, CHERUMAVILAYI.P.SCHOOL, RESIDING AT KARUNA, KANNUR. 2. THE ASSISTANT EDUCATIONAL OFFICER, KANNUR SOUTH. 3. THE DISTRICT EDUCATIONAL OFFICER, KANNUR. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, STATE OF KERALA, THIRUVANANTHAPURAM. 5. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 6. THE MANAGER, CHERUMAVILAYI U.P.SCHOOL, KANNUR DISTRICT. BY ADV. SRI.M.CHATHUKUTTY NAMBIAR FOR R1 GOVERNMENT PLEADER SMT. BINDU FOR R2 TO R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1009 OF 2009 --------------------------------------------- Dated this the 10th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The 6th respondent in the Writ Petition, feeling aggrieved by the judgment of the learned Single Judge, has preferred this Writ Appeal. The brief facts of the case are the following: 2. The appellant and the first respondent/writ petitioner are graduates with B.Ed. degree. Therefore, both of them were eligible to be appointed as Upper Primary School Assistant, but ineligible to be appointed as a Lower Primary School Assistant. A leave vacancy arose in the school concerned and the first respondent was appointed in that vacancy from 10.6.2002 to 17.10.2002. The teacher who went on leave was a graduate with B.Ed. Ext. P1 is the order appointing the first respondent in the leave vacancy. But, the said appointment was not approved by the Assistant Educational Officer on the ground that the incumbent who went on leave was working as a Lower Primary School W.A.NO.1009/2009 2 Assistant and the first respondent who is a trained graduate was not eligible to be appointed as a Lower Primary School Assistant. Ext.P4 is the order by which approval of appointment of the first respondent was rejected by the Assistant Educational Officer. The Manager of the school moved the District Educational Officer in appeal. That appeal was dismissed. The first respondent unsuccessfully moved the Director of Public Instructions and the Government. The communication rejecting her representation by the Government is Ext.P5 dated 31.1.2004. Ext.P5 was challenged before this Court by the first respondent by filing W.P.(C) No. 19830 of 2004 and this Court by judgment dated 26.6.2007 directed the Assistant Educational Officer to consider the matter afresh in accordance with law, in the light of the observations in that judgment. The matter was reconsidered by the Assistant Educational Officer and by Ext.P8 order dated 13.9.2007, the claim of the first respondent was rejected. The present Writ Petition was filed by the first respondent challenging the said order and seeking consequential reliefs. 3. While the first respondent was working as Lower Primary School Assistant in the leave vacancy between 10.6.2002 and 17.10.2002, another leave vacancy arose in the school and the appellant herein was appointed in that leave vacancy from 1.10.2002 to 4.12.2002. The school concerned W.A.NO.1009/2009 3 is an Upper Primary School in which there were 11 class divisions for the relevant year, as is evident from Ext.P3. One post was occupied by the Headmaster and out of the ten vacancies of Assistant teachers, four were occupied by T.T.C. holders and six by trained graduates. The appellant's appointment was approved by the Assistant Educational Officer on finding that the person who went on leave was at the relevant time working as Upper Primary School Assistant. Subsequently, when a vacancy arose in the post of Upper Primary School Assistant, the appellant was appointed in that vacancy from 1.6.2007 and the said appointment was also approved. 4. In the present Writ Petition filed by the first respondent, challenging Ext.P8 order, the appellant was also impleaded as the 6th respondent. The learned Single Judge, after hearing both sides, found, relying on Ext.P3, that there were ten posts of Assistant teachers and among them four were T.T.C. holders and six were trained graduates. There were six divisions in the Upper Primary wing and four divisions in the Lower Primary wing. So, if a trained graduate goes on leave, the vacancy will be arising in the Upper Primary wing. Therefore, the learned Single Judge ordered to approve the appointment of the first respondent for the period from 10.6.2002 to 17.10.2002. It was also ordered that she is entitled to consequential benefits available to her under Rule 51A of W.A.NO.1009/2009 4 Chapter XIV(A) of the Kerala Education Rules, consequent on the approval of her appointment. If the said order is implemented, the appellant will be affected and there is a chance of her being thrown out, if another vacancy does not arise in the meantime. So, she has preferred this appeal. 5. The learned counsel for the appellant submitted that the assumption made by the learned Single Judge that the T.T.C. holders were occupying the posts of Lower Primary School Assistants and the trained graduates were holding the posts of Upper Primary School Assistants and, therefore, if a trained graduate goes on leave, a vacancy will arise in the Upper Primary wing is not factually correct. Annexure R2(a) would show the posts and the incumbents occupying them. The first respondent was appointed in the leave vacancy of one N.B. Nisha who was working as a Lower Primary School Assistant at the relevant time. Since the first respondent was appointed in the vacancy of a Lower Primary School Assistant, her appointment could not have been approved after the amendment of Rule 4 of Chapter XXXI of the Kerala Education Rules introduced with effect from 8.6.2000. The appellant was appointed in the leave vacancy of one R. Ramesan who was an Upper Primary School Assistant. Therefore, the appellant, even though a trained graduate, is W.A.NO.1009/2009 5 entitled to be appointed and her appointment approved also. Further, the appointment of the appellant in the aforementioned leave vacancy from 1.10.2002 to 4.12.2002 was not challenged by anyone. Therefore, her reappointment from 1.6.2007 was validly made. So, the learned Single Judge went wrong in granting relief to the first respondent, it is submitted. 6. The learned counsel for the first respondent, on the other hand, submitted that the first respondent was not aware of the approval of the appointment of the appellant in the leave vacancy from 1.10.2002 to 4.12.2002 and, therefore, she never had any occasion to challenge the same. When it was found that the appellant was appointed in a regular vacancy from 1.6.2007, she was also impleaded in the present petition filed by the first respondent. As the first respondent was appointed at an earlier point of time, she should have been accommodated in the second leave vacancy, if her appointment in the first leave vacancy could not be approved. Therefore, the Manager went wrong in appointing the appellant in the leave vacancy that arose in 1.6.2007 and the Assistant Educational Officer went wrong in approving the same, it is submitted. The learned counsel for the first respondent also seriously disputed the genuineness of Ext.R2(a). According to him, it is a concocted document produced by the Manager before the Assistant Educational Officer to defeat the claim of the W.A.NO.1009/2009 6 first respondent. 7. The learned Government Pleader disputed the above submission of the learned counsel for the first respondent. She submitted that it was part of the records and there is nothing unusual in a senior teacher, even though a T.T.C. holder, being accommodated in the Upper Primary Wing and the juniors, even if they are trained graduates, being accommodated in the Lower Primary Wing. 8. We feel that since the approval of appointment of the appellant for the spell 1.10.2002 to 4.12.2002 was not challenged by the first respondent, no relief should have been granted to her by the learned Single Judge. But, we also feel that the first respondent should be given a chance to do that. There is no time limit for filing a revision petition before the Government under Rule 92 of Chapter XIV A of the Kerala Education Rules and even an order of the original authority like the Manager can also be directly challenged before the Government. Further, the first respondent can also challenge Ext.P8 order before the Government as also the approval of appointment of the appellant in the aforementioned leave vacancy between 1.10.2002 to 4.12.2002. W.A.NO.1009/2009 7 9. In the result, we set aside the judgment of the learned Single Judge. The first respondent may move appropriate petition before the Government under Rule 92 of Chapter XIV(A) of the Kerala Education Rules challenging Ext.P8 order as also the order approving the appointment of the appellant for the spell 1.10.2002 to 4.12.2002 and also the regular appointment given to her from 1.6.2007. In the event of the first respondent filing such a petition within one month from today, the Government shall hear both sides, including the Manager, and pass final order within three months from the date of receipt of a copy of the revision petition. Since we are relegating the parties to the statutory forum, we are not saying anything on the merits of the case. If the first respondent approaches the Assistant Educational Officer, Kannur, he shall furnish a copy of the order approving the appointment of the appellant in the leave vacancy as also in the regular vacancy mentioned above. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A.NO.1009/2009 8 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO.1009/2009 JUDGMENT 10th June, 2009 W.A.NO.1009/2009 9