IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WA.No. 799 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.13816/2003 Dated 09/12/2009 .................... APPELLANT/3RD RESPONDENT:- --------------------------------------------- THE MANAGER, MAMBARAM HIGHER SECONDARY SCHOOL, P.O. MAMBRAM, KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENT(S)/PETITIONER & RESPONDENTS 1, 2 & 4:- -------------------------------------------------------------------------------- 1. K.P. BINDU, NARAYANALAYAM, ANJARAKANDI.P.O, KANNUR DISTRICT, HSA MAMBRAM, HIGHER SECONDARY SCHOOL MALAYAM. 2. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. 4. C.P. REENA, HSA (MALAYALAM), P.G.M.P HIGH SCHOOL, CHERUVANCHERRY, KANNUR. BY GOVT.PLEADER SMT.T.B.REMANI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH WA.NO.800/2010 ON 26/05/2010, THE COURT ON 02/06/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = Writ Appeal Nos.799 & 800 of 2010. = = = = = = = = = = = = = = = = = Dated this the 2nd day of June, 2010. COMMON JUDGMENT Gopinathan, J. These appeals are preferred against the common judgment in OP.No.650/2003 and OP.No.13816/2003. Since the bone of contention in both appeals is one and the same, the judgment impugned is common and the parties, except the 4th respondent, are same, we are disposing these appeals by this common judgment. The appellant is the petitioner in OP.650/03 and the 3rd respondent in OP.13816/03. OP.13816/03 was filed by the first respondent in WA.799/2010. She is the 3rd respondent in OP.650/03 as well as in the other appeal. The appellant is the Manager of Mambaram Higher Secondary School. WA.Nos.799 & 800/10. -: 2 :- Smt.K.P.Bindu, the first respondent in WA.799/2010 was appointed as a High School Assistant (Mal.) in the school run by the appellant with effect from 24.8.2000 in a vacancy that arose due to the promotion of Smt.Baby Sulekha, a High School Assistant as Higher Secondary School Teacher under the very same management. The proposal for appointment was forwarded by the appellant to the 3rd respondent in WA.No.799/2010 who is the District Educational Officer. The 3rd respondent rejected the proposal for the reason that there is a protected teacher who is entitled to a lien under Rule 51A of the KER. Being aggrieved, the first respondent in WA.799/2010 preferred a revision petition before the Government. Since there was delay in disposal of the revision preferred by her, she approached this Court with OP.No.30673/01, the copy of which judgment is marked as Ext.P1. This Court by Ext.P1 directed the State to dispose her representation at the earliest. It was further directed that any action taken by WA.Nos.799 & 800/10. -: 3 :- the appellant in the meanwhile would be subject to the decision taken by the Government on the representation made by the first respondent. The Government by order dated 19.10.2002, copy of which was marked as Ext.P2 in OP.13816/03 and Ext.P7 in OP.650/03, directed the appellant to appoint the first respondent in WA.799/2010. Seeking an order directing the appellant to implement Ext.P7 order, OP.13816/03 was preferred. Seeking an order to set aside the very same order, ( Ext.P2) OP.650/03 was filed. In OP.13816/03, Ext.P4 order issued by the District Educational Officer declining the appointment of the petitioner therein was also assailed. 2. By common judgment dated 9.12.2009, OP.650/03 was dismissed. The other writ petition was allowed quashing Ext.P4 order and directing the District Educational Officer to implement Ext.P2 and approve the appointment of the petitioner therein. Now these appeals. 3. In preferring the appeal there is delay of 116 WA.Nos.799 & 800/10. -: 4 :- days. To seek an order to condone the delay, petitions were filed. The reason stated for condoning the delay is that there occurred some delay to formulate an opinion to prefer the appeals. Though, we are not satisfied with the reasons stated, we find that it would be just and appropriate to go into the merits of the appeal. Hence we condone the delay in filing the appeals. 4. The fact that the first respondent in the first appeal was appointed by the appellant as HSA (Mal.) is not disputed. Her qualification is also not disputed. Now, the only challenge is that there is no vacancy as on the date of the appointment. In the light of the pleadings, we find that it is not at all necessary to go deep into that aspect. In the appeal memorandum in Ground A, the appellant had stated that in the vacancy created by promotion of Smt.Baby Sulekha, Sri.S.Radhakrishnan, the 4th respondent in the WA.800/2010 was appointed in compliance of the judgment in OP.35586/01 dated 10.4.2002, the copy of which is WA.Nos.799 & 800/10. -: 5 :- marked as Ext.P3 in OP.13816/2003. It is further stated that in a newly created vacancy, one Dinesh Kumar was appointed in the academic year 2001-'02. Even if there is no vacancy as on the date of appointment, before appointing another person, in the next academic year, the appellant should have given priority to Smt.K.P.Bindu, whom the appellant appointed during the previous year. In the above circumstance, we find that even if there was no vacancy during the year 2000-'01, there occurred vacancy in the next academic year itself. We had mentioned earlier that in Ext.P1 judgment in OP.30673/01 there is a direction that any action taken by the appellant during the delay in taking a decision by the Government shall be subject to the decision of the Government. Ext.P2 being dated 19.10.2002, it can be seen that the appointment of Sri.Dinesh Kumar is during the intermittent period. Such being the facts revealed WA.Nos.799 & 800/10. -: 6 :- out, there is no merit in the contention that there was no vacancy to approve the appointment of Smt.K.P.Bindu. The District Educational Officer declined to approve the appointment of Smt.K.P.Bindu for the reason that Smt.C.P.Reena, the 4th respondent in WA.799/2010 is awaiting appointment as a protected teacher. Now, the appellant admitted that she is not advancing any claim. Hence the appointment of Smt.K.P.Bindu would not infringe the right of Smt.C.P.Reena. We find no merit in these appeals. The District Educational Officer, Thalassery shall approve the appointment forthwith. Since it is submitted that Smt.K.P.Bindu had not been working in the school since October, 2000, we find that her service benefits can be limited from the date of commencement of her continued service. But, it is made clear that for the purpose of lien, her appointment shall take WA.Nos.799 & 800/10. -: 7 :- effect from the date of Ext.P2. Writ Appeals are dismissed with the above clarification. No order as to costs. C.N.RAMACHANDRAN NAIR (Judge) P.S.GOPINATHAN (Judge) kvs/-