IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 29689 of 2007(H) --------------------------------------- PETITIONER: ------------------- JEENA V.J., HIGH SCHOOL ASSISTATNT, PHYSICAL SCIENCE, R.M.V.HIGHER SECONDARY SCHOOL, PERINJANAM, THRISSUR DISTRICT. BY ADV. MR.B.K.PURUSHOTHAMAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DIST. 3. THE MANAGER, R.M.V.HIGHER SECONDARY SCHOOL, PERINJANAM, THRISSUR DIST. R1 & R2 BY SR. GOVT. PLEADER MR. MUHAMOOD T.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29689/2007-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER OF ARUN P. ISSUED BY R3 AND APPROVED BY R2 AS PER ORDER NO.B6-3479/06 K. DIST. DTD. 08/05/07. EXT.P.2: COPY OF THE ORDER NO.L.DIS.B6/3944/02 DT. 19/02/03 ISSUED BY R.2. EXT.P.3: COPY OF THE REVISION PETITION FILED BY R3. BEFORE R1 DTD. 15/09/04. EXT.P.4: COPY OF THE REVISION PETITION FILED BY R3. BEFORE R1 ON 28/07/05. EXT.P.5: COPY OF THE REPRESENTATION FILED BY PETITION FILED BY PETITIONER BEFORE R1 ON 15/07/05. EXT.P.6: COPY OF THE LETTER NO.18540/B2/05/G. EDN. DTD. 25/01/2006 ISSUED BY R.1. EXT.P.7: COPY OF THE LETTER NO. 18540/B2/05/G. EDN. DTD. 12/03/07 ISSUED BY R1 TO THE PETITIONER. EXT.P.8: COPY OF THE ORDER NO. D. DIS. B6/6612/02 DTD. 10/09/02 ISSUED BY R.2. EXT.P.9: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER BEFORE GOVERNMENT ON 13/07/2007. EXT.P.10: COPY OF THE ORDER NO. K. DIS. NO. 140067/H2/73 DTD. 12/02/1974 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29689/2007-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of July, 2009 J U D G M E N T The petitioner is aggrieved by Exts.P2 and P6. The petitioner is at present working as High School Assistant (Physical Science) in the school managed by the third respondent with effect from 01/06/2005 onwards. The said appointment has been approved. Prior to the said appointment, she had two spells of appointment as U.P.S.A, namely, from 12/12/2001 to 01/02/2002 and from 05/06/2002 to 31/05/2005. 2. Both these spells of appointment were not approved by the Educational Officer. In the school a vacancy arose in the post of U.P.S.A on 07/11/2001. It is pointed out that the petitioner had established a claim under Rule 51B of Chapter XVI-A K.E.R. She was appointed only from 12/12/2001 and approval was rejected on the ground that appointment of one Shri P.Arun U.P.S.A was not approved and there is no established vacancy. It is pointed out that the appointment of the said teacher namely, Shri Arun was approved as per Ext.P1 order. It is thus contended that as the ground for rejection of the approval is no longer there, there is no reason for W.P.(C). No.29689/2007 -:2:- not approving the appointment of the petitioner from 12/12/2001 to 01/02/2002. 3. Regarding the second spell, namely, from 05/06/2002 to 31/05/2005, the petitioner was appointed in the vacancy due to the promotion of Shri P.Arun as H.S.A. This was also rejected stating that the appointment of Shri.Arun was not approved and hence, there is no established vacancy to provide the petitioner as U.P.S.A. It is pointed out that the promotion of Shri P.Arun as H.S.A with effect from 05/06/2002 has been approved by the second respondent as per Order No.K.Dis.B6/597/2004 dated 18/03/2004 and therefore, there is no reason for not approving the same. 4. It appears that the Manager had filed Exts.P3 and P4 revision petitions before the Government. The petitioner had also filed Ext.P5 representation before the Government. Exts.P3 to P5 are disposed of by a common order, namely, Ext.P6. In Ext.P6 it is stated that the request for approval of appointment of the petitioner herein from 12/12/2001 to 01/02/2002 is not admissible as the period of appointment is for 52 days only and it is stated that as per Rule 7(3) of Chapter XIV-A K.E.R vacancies duration of which is less than two months shall not be filled up. W.P.(C). No.29689/2007 -:3:- 5. We are concerned with two spells, namely, from 12/12/2001 to 01/02/2002 and from 05/06/2002 to 31/05/2005. The petitioner is relying upon a decision of the Division Bench of this Court reported in Unni Narayanan v. State of Kerala [ILR (2009) 2 Kerala Series 487]. Paragraph (8) is relied upon which is in the following terms:- “We notice that sub-rule (3) of Rule 7A speaks of vacancies, the duration of which is less than one academic year. In other words, if the vacancy is having a duration of one academic year or more, appointment can be made to fill up the same. The term of appointment need not be co-terminous with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved. The reason is that Rule 7A speaks of duration of vacancy and not duration of appointment. So, we are of the view that if appointments are made to vacancies, having duration of one academic year or more, they are liable to be approved.” W.P.(C). No.29689/2007 -:4:- 6. The learned counsel for the petitioner therefore, submitted that the appointment was in a vacancy, the duration of which was beyond two months. It is true that the appointment of the petitioner was from 12/12/2001 to 01/02/2002. It is pointed out that the reasoning made by the Division Bench will apply to the facts of this case also. 7. This is a matter for the Government to consider after assessing various factual details regarding the vacancy to which petitioner was appointed. In that view of the matter, Ext.P6 is quashed. There will be a direction to the Government to consider the Ext.P3 revision petition and pass fresh orders regarding the claim for approval of appointment of the petitioner from 12/12/2001 to 01/02/2002 within three months from the date of receipt of a copy of the judgment after hearing the petitioner and the Manager. 8. Regarding the claim for approval of appointment from 05/06/2002 to 31/05/2005, as it is now pointed out that the objection regarding the said approval, namely, that the promotion of Shri.P.Arun as H.S.A was not approved, is no longer there, in the light of the fact that a fresh order approving the order of promotion of Shri P.Arun as H.S.A has been passed. Therefore, Ext.P2, as far as it rejects the approval of W.P.(C). No.29689/2007 -:5:- appointment of the petitioner with effect from 05/06/2002 is quashed. There will be a direction to the District Educational Officer to pass fresh orders with regard to the approval of appointment of the petitioner for the period from 05/06/2002 to 31/05/2005 within six weeks from the date of receipt of a copy of the judgment after hearing the petitioner and the Manager. 9. If the appointment is approved, the petitioner will be entitled for all the consequential monetary benefits also. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms