IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 OP.No. 35583 of 2001(J) ----------------------- PETITIONER : --------------------- SMT. B.S. BIJI, UPSA, HH THANGAL MEMORIAL LP & UP SCHOOL, PALACHIRA P.O., VARKALA 695 143, RESIDING AT SATHYAMAHAL, PALACHIRA P.O., VARKALA 695 143, THIRUVANANTHAPURAM DISTRICT, KERALA. BY ADV. SRI.M.N.MATHEW RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION (H) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM – 695 014. 4. THE ASSISTANT EDUCATIONAL OFFICER, VARKALA - 695 141, THIRUVANANTHAPURAM DISTRICT. 5. THE MANAGER, HABEEB HAJEE THANGAL MEMORIAL LP & UP SCHOOL, PALACHIRA P.O., VARKALA 695 143, THIRUVANANTHAPURAM DISTRICT. 6. THE HEADMISTRESS, HABEEB HAJEE THANGAL MEMORIAL LP & UP SCHOOL, PALACHIRA P.O., VARKALA 695 143, THIRUVANANTHAPURAM DISTRICT. R1 TO R4 BY GOVT. PLEADER SRI. T.T. MUHAMOOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP.No. 35583 of 2001(J) -2- ORDER ON C.M.P. NO. 58034/2001 IN OP. NO. 35583/2001 DISMISSED 27/05/2011 SD/- ANTONY DOMINIC, JUDGE //TRUE COPY// P.A. TO JUDGE Mn ...3/- OP.No. 35583 of 2001(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPOINTMENT ORDER DATED 15-6-1994 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT. EXT.P2 : COPY OF 4TH RESPONDENT'S ORDER NO. D-2220/94/KDn DATED 3-11-1994 ISSUED TO THE PETITIONER. EXT.P3 : COPY OF 3RD RESPONDENT'S ORDER NO. S.C.(2) 17281/96 DATED 15-2-1996 ISSUED TO THE PETITIONER. EXT.P4 : COPY OF JUDGMENT DATED 16-2-1998 IN ORIGINAL PETITION NO. 414 OF 1998 Y. EXT.P5 : COPY OF 4TH RESPONDENT'S ORDER NO. D/364/98 DATED 11-5-1998 EXT.P6 : COPY OF ORDER DATED 18-2-1999 IN CMP NO. 18154/98 IN OP NO. 10610/1998 K. EXT.P7 : COPY OF PETITIONER'S REPLY LETTER DATED 5-4-1999 SENT TO THE 5TH RESPONDENT. EXT.P8 : COPY OF 3RD RESPONDENT'S ORDER NO. F1/19928/98/DPI DATED 20-4- 1999. EXT.P9 : COPY OF PETITIONER'S REPRESENTATION DATED 28-2-2000 TO THE 2ND RESPONDENT. EXT.P10 : COPY OF JUDGMENT DATED 22-6-2000 IN ORIGINAL PETITION NO. 10610 OF 1998K. EXT.P11 : COPY OF 1ST RESPONDENT'S G.O.(P) NO. 112/2001/G.EDN. DATED 26-3-2001. EXT.P12 : COPY OF 2ND RESPONDENT'S ORDER NO. G.O.RT.NO.918/2001/G.EDN DATED 8-3-2001. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` O.P. No. 35583 of 2001 ``````````````````````````````````````````````````````````` Dated this the 27th day of May, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Prayer sought in the original petition is to quash Exts.P2 and P12. Petitioner is a U.P.School Assistant in the school of which the 5th respondent is the Manager. Though she was appointed with effect from 15.06.1994, her appointment was approved with effect from 15.07.1994 by Ext.P2 order. Against the said order, claiming approval with effect from 15.06.1994, petitioner approached the Government. According to the petitioner, subsequently, her appointment was terminated and her salary was declined. It appears that the petitioner had filed representations, which were directed to be considered when she approached this Court earlier on repeated occasions. Finally, those directions culminated in Ext.P12 Government Order dated 08.03.2001, the operative portion of which reads as under:- “ 3. On the above request, the Director of Public Instruction as per his letter read above has reported that Smt.B.S.Biji was appointed as UPSA in H.H.T.M., UPS, Palachira with effect from 15.6.1994 in the anticipated vacancy during the year 1994-1995 by the Manager. Subsequently as per his letter dated 15.6.1994 it has been requested by approve the appointment of Smt.B.S.Biji, only with effect from 15.7.1994 A.N. The appointment of Smt.B.S.Biji was approved from 15.7.1994 A.N. It is also stated that the teacher had worked as UPSA from 15.6.1994 to 15.7.1994 and from 1.1.1995 to 10.12.1995 without any sanctioned post. Government have examined the matter in detail with reference to the report of the Director of Public Instruction. As the petitioner had worked against irregular post the request for the payment of salary of the above period cannot be allowed. 4. In the above circumstances, the request at Ext.P11 is devoid of merits and is accordingly rejected.” 2. It is in these circumstances, this writ petition is filed mainly praying for quashing Exts.P2 and P12 and to regularise the service of the petitioner from 15.06.1994. 3. The stand of the Government is that, the petitioner's appointment was against an anticipated vacancy and that, in the staff fixation, vacancy arose with effect from 15.07.1994. It is stated that, based on the occurrence of the vacancy, Manager sought approval of the appointment of the petitioner with effect from 15.07.1994 and that, accepting the proposal, appointment of the petitioner was approved with effect from 15.07.1994. 4. As already seen, the only issue that arises for consideration is whether the appointment of the petitioner ought to have been approved with effect from 15.06.1994 as prayed by the petitioner. While it is the stand of the petitioner that she was appointed against a regular retirement vacancy, it is the contention of the learned Government Pleader that the appointment of the petitioner was against an anticipated vacancy. In my view, this disputed question can be resolved with reference to the appointment order itself, a copy of which is produced as Ext.P2. In the appointment order, it has been stated that, the appointment is against a new vacancy expected to arise as per staff fixation 1994-95. Therefore, though the petitioner was appointed with effect from 15.06.1994, such appointment was against an anticipated vacancy as contended by the learned Government Pleader. If that be so, the vacancy having arose with effect from 15.07.1994, the appointment of the petitioner could have been approved only with effect from that date. Therefore, this Court will not be justified in directing that the petitioner's appointment should be approved with effect from any date prior to 15.07.1994, when the vacancy in question arose. Consequently, the prayer of the petitioner to quash Exts.P2 and P12 does not merit acceptance. 5. Learned counsel for the petitioner then contended that the petitioner is entitled to the benefit of Ext.P11 GO(P) No.112/2001/G.Edn dated 26.03.2001. This Government Order provides for protection to a category of teachers who were appointed and terminated later. Pleadings show that the petitioner has not claimed the benefit of Ext.P11 before the Government or the statutory authorities and that none had any occasion to consider the claim of the petitioner in that behalf. Such being the case, I am not persuaded to direct the Government to extend the benefit of Ext.P11 either. 6. I do not find any merit in the original petition. Original petition is dismissed. Sd/- (ANTONY DOMINIC, JUDGE) aks/28.05 // True Copy // P.A. To Judge ANTONY DOMINIC, J. `````````````````````````````````````````` O.P. No. 35583 of 2001 `````````````````````````````````````````` J U D G M E N T 27th day of May, 2011