IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 9197 of 2009(T) ------------------------------------- PETITIONER(S): ----------------------- THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY,DIOCESE OF IRINJALAKUDA,PASTORAL CENTRE,IRINJALAKUDA. BY ADV. MR.S.MUHAMMED HANEEFF RESPONDENT(S): ------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA. 2. DEPUTY DIRECTOR OF EDUCATION,THRISSUR. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. STATE OF KERALA REP.BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 5. A.J.SENSON,LAB ASSISTANT, ST.SEBASTIAN'S H.S.S KUTTIKAD,THRISSUR DISTRICT. R1 – R4 BY GOVERNMENT PLEADER MR.V.T.K.MOHANAN R5 BY ADV. MR.U.BALAGANGADHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9197/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.B3-6792/07/K.DIS DTD. 3.11.07 PASSED BY THE IST RESPONDENT . P2:- COPY OF THE ORDER NO.B2-25980/07 DTD. 29.9.08 PASSED BY THE 2ND RESPONDENT. P3:- COPY OF THE ORDER NO.EM/(6) 54600/07/DPI/K.DIS DTD. 3.3.09 ISSUED BY THE 3RD RESPONDENT. P4:- COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DTD. 10.3.09. RESPONDENT'S EXHIBITS R5(1):- COPY OF THE SENIORITY LSIT DRAWN BY THE MANAGER NO.ED NO.134/04-05 DTD. 1.3.05. R5(2):- COPY OF THE APPOINTMENT ORDER OF SHRI JOSEPH ROLVIN NO.EDA 104/06 DTD. 5.6.06. R5(3):- COPY OF THE JUDGMENT IN WPC. 17988/06 DTD. 11.7.06. R5(4):- COPY OF THE PROCEEDINGS OF DEO, IRINGALAKUDA NO.B3-6182/06/L.DIS DTD. 2.11.06. R5(5):- COPY OF THE JUDGMENT IN WPC. 21225/07 DTD. 17.8.07. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 9197 of 2009-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2009. JUDGMENT The only question that is raised in this writ petition filed by a Corporate Manager, is whether the 5th respondent who is working as Lab Assistant, is entitled for appointment as U.P.S.A., as a matter of right. 2. The 5th respondent was appointed as a Lab Assistant with effect from 26.10.1999 in St. Antony’s H.S.S., Mala. He was selected under 75% category by direct recruitment and that appointment has already been approved. At a later point of time, a vacancy of U.P.S.A. arose in the school. One Shri Joseph Rolvin was appointed as U.P.S.A. The 5th respondent filed W.P.(C) No.21225/2007 and pursuant to the directions issued by this court, the District Educational Officer heard the parties. Ext.P1 is the resultant order. This is confirmed in Ext.P2. In Ext.P1, even though the District Educational Officer held that the claim raised by the 5th respondent cannot be supported on merits, a direction was issued to the Manager to appoint him as U.P.S.A. from 2.11.2006. This was confirmed by the Deputy Director of Education and later by the Director of Public Instruction, as per Ext.P3. Ext.P4 is the revision filed by the Manager wpc 9197/2009 2 before the Government and pending the revision petition, when attempts were made to implement Exts.P1 and P3, this writ petition was filed challenging Exts.P1 and P3 also. 3. The official respondents and the contesting respondents have filed separate counter affidavits. 4. Shri Muhammed Haneef, learned counsel for the petitioner mainly contended that the management is entitled to fill up the post of UPSA in terms of the provisions of the K.E.R. and there cannot be any claim for a person like the 5th respondent who is working in the Higher Secondary division for appointment as U.P.S.A. No preference as such is provided either in the provisions of the K.E.R. or in any executive order issued by the Government in this behalf. Reliance is placed on two Division Bench decisions of this court in Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha (2006 (3) KLT 867) and Sam Joseph v. State of Kerala (2009 (3) KLT 99). 5. Shri Balagangadharan, learned counsel appearing for the 5th respondent submitted that the view taken in Exts.P1 and P3 cannot be faulted for more reasons than one. The 5th respondent who is working as a Lab Assistant, can be adjusted in the UPSA post, so that the financial wpc 9197/2009 3 burden of the Government to accommodate a supernumerary Lab Assistant could be reduced. Even though learned counsel for the 5th respondent submitted that the 5th respondent has got a claim, none of the provisions of the KER or any Government orders in the matter were brought to my notice justifying such a claim. 6. The question is rather simple. A vacancy of UPSA admittedly arose in the school. Going by the provisions of the KER, the management is empowered to appoint a qualified person. The person appointed is one Joseph Rolvin. It appears that the complaint raised by the 5th respondent was that the said appointee is junior to him and therefore the claim of the 5th respondent ought to have been considered by the management. A reading of Ext.P1 order itself will show that the District Educational Officer was of the view that there is no merit in the claim raised by the 5th respondent. Specific reliance was made on the judgment of this court in W.P.(C) No.18947/2006 to the effect that Rules 43 and 51A claimants as per Chapter XIV-A K.E.R., up to High School, have no right of claim for appointment in Higher Secondary Section and vice versa, as the rules are not incorporated in Chapter XXXII of the Rules for Higher Secondary Schools. But in the operative portion, a direction was issued to “promote the 5th respondent to the post of UPSA from 2.11.2006.” Justification is sought for by stating wpc 9197/2009 4 that it will avert additional financial commitment as a result of continuance of supernumerary post under the management. Even though the Director of Public Instruction has also not upheld the claim under any of the provisions of the K.E.R., the order passed by the District Educational Officer was not interfered with on the ground that it will avoid the monetary loss caused to the Government by appointing a fresh hand. 7. None of the provisions of the K.E.R. confer any preferential right to the person appointed as a Lab Assistant for appointment as UPSA. In that view of the matter, the 5th respondent cannot claim or object the appointment of Shri Joseph Rolvin as UPSA, as a matter of right, even though the said person is junior to him. There cannot be any doubt that if it is an appointment as such and not an appointment by way of promotion. If that be so, necessarily it will have to be found out whether any of the provisions of the KER have been breached by the management by appointing Shri Joseph Rolvin. As far as that aspect is concerned, it is also found against the 5th respondent by the District Educational Officer in Ext.P1 itself, relying upon a judgment of this court. A reference can be made to the principles stated by this court in Pathanapuram Taluk Samajam's case (2006 (3) KLT 867), in this context. It was held that wpc 9197/2009 5 “vacancies arising in Higher Secondary Section cannot be claimed by candidates seeking employment under Rule 51B of Chapter XIV-A K.E.R.” The Bench was of the view that the provisions of the KER having not been implemented as regards the Higher Secondary Section, the vacancies arising in Higher Secondary section cannot be claimed by candidates seeking employment under Rule 51B. The two limbs are clearly separate. Even if for argument’s sake it is contended that the person who is working as junior to him as Lab Assistant is given an appointment as UPSA, that cannot be faulted in the absence of any claim which can be traceable to any other provisions of KER. In the judgment of the Division Bench in Sam Joseph's case (2009 (3) KLT 99) the question whether Rule 35 of Chapter XIV-A K.E.R. is applicable to Higher Secondary section, was considered. It was held thus: “The Government have prescribed the qualifications and method of appointment to various posts under the Higher Secondary wing by framing Rules, which are contained in Chapter XXXII of the KER. The various provisions in other Chapters of the KER are not applicable to the Higher Secondary wing. But, the Government have issued specific orders, extending the applicability of certain Rules to the Higher Secondary wing also. R.2 of Chapter XXXII of the K.E.R. also provides that the special provisions contained in wpc 9197/2009 6 Chapter XXXII will prevail over the Rules in other Chapters. Unless the Government issues an order making applicable the provisions of R.35 of Chapter XIV-A of the K.E.R. to the Higher Secondary wing also, all the Higher Secondary Schools under the Educational Agency should be treated as one Unit, for the purpose of appointment, promotion, transfer, retrenchment etc.” Therefore, the principle that is rendered by this court is to the effect that there cannot be any automatic application of the provisions of the KER to the Higher Secondary wing and the employees working in the Higher Secondary section cannot have a claim by way of preference in appointment to the teaching post in high school or U.P. section. Therefore, the management was entitled to appoint anybody as a fresh hand and that alone has happened in this case. Merely because the fresh hand is working as supernumerary Lab Assistant, it cannot be said that it will automatically confer any right on the 5th respondent to claim the appointment. 8. Learned counsel appearing for the 5th respondent submitted that there are vacancies of UPSA in the school and therefore his claim ought to have been considered. It is entirely for the management to do so. But in the absence of any enforceable right, this court cannot issue a mandamus or grant a declaration recognizing his right in this proceedings. Evidently, Exts.P1 and P3 have been rendered on reasons which are extraneous and wpc 9197/2009 7 unsupportable in law. The justification sought for cannot have a legal backing. 9. Therefore, Exts.P1 and P3 are quashed. In that view of the matter, it is unnecessary for the petitioner to prosecute the revision petition filed as Ext.P4. The same will be struck off. The writ petition is allowed as above. (T.R. Ramachandran Nair, Judge.) kav/