IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WA.No. 2964 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12216/2005 .................... APPELLANT(S): APPELLANT ----------------------- DENNY MATHEW, LOWER PRIMARY SCHOOL ASSISTANT, CHALDEAN SYRIAN CHURCH SCHOOL, NALLENKARA, THRISSUR. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 4 IN THE WPC --------------------------------------------------------- 1. PINCY PAUL, W/O.JEEN MOOKEN, AGED 29 YEARS, MOOKEN HOUSE, MULANKUNNATH KAVU P.O., THRISSUR (FORMERLY WORKING AS H.S.A. (MATHS) IN LEAVE VACANCY, CHALDIAN SYRICAN CHURCH SCHOOL, THRISSUR. 2. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, TRIVANDRUM-14. 4. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. 5. THE CORPORATE MANAGER, CHALDIAN SYRICAN CHURCH SCHOOL, THRISSUR. ADV. SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL FOR R5 SRI.V.R.KESAVA KAIMAL & N M MADHU FOR R1 GOVERNMENT PLEADER SMT.R.BINDU R2 TO R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2009 ALONG WITH WA NO.516 OF 2008, THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA Nos.2964 of 2007 & 516/08 ------------------------------------------------------------------ Dated 20th October 2009 Judgment Balakrishnan Nair, J. WA No.2964/07 The appellant was not a party to the Writ Petition. So, he filed RP No.855/06, seeking review of the judgment. The Review Petition was dismissed. Therefore, this appeal is filed, challenging the judgment in the Writ Petition as also the order in the Review Petition. The brief facts of the case are the following : 2. The appellant joined the school of the 5th respondent as Clerk on 18.09.1998 and he was promoted and appointed as UPSA on 1.6.1999. At that time, he was having the qualification B.Sc. (Mathematics) and T.T.C. He passed B.Ed. Degree in Mathematics on 26.07.2002. The first respondent/writ petitioner was appointed in the 5th respondent's school as UPSA on 05.06.2000. At the relevant time, she was having the qualification B.Sc. (Mathematics) and B.Ed. (Mathematics). While so, a leave vacancy arose in the cadre of HSA (Mathematics), having duration from 15.11.2000 to 29.03.2001. The 1st respondent was appointed in that vacancy. The said appointment WA Nos.2964/07 & 516/08 2 was approved and on termination of the vacancy, she was reverted as UPSA. 3. While so, the 1st respondent/writ petitioner approached this Court by filing the Writ Petition, praying that the Manager may be directed to appoint her as HSA (Mathematics). On receipt of notice, the Manager appeared through counsel and submitted that she is a 51A claimant and she will be appointed in the next arising vacancy of HSA (Mathematics). The Writ Petition was disposed of, recording the said submission. 4. According to the appellant, now he is a claimant under Rule 43, which has precedence over Rule 51A and therefore, the submission made by the counsel for the Manager, at the time of hearing the Writ Petition and which was recorded by the learned Single Judge, will affect him. As his Review Petition before the learned Single Judge was unsuccessful, he has preferred this Writ Appeal. 5. We heard the learned Senior Counsel Shri.K.R.B.Kaimal for the appellant, M/s.V.R.K.Kaimal and N.M.Madhu, learned counsel appearing for the first respondent, Shri.George Varghese Perumpallikkuttiyil, learned counsel appearing for the 5th rspondent WA Nos.2964/07 & 516/08 3 and also Smt.R.Bindu, learned Government Pleader appearing for the official respondents. If a vacancy arises in the school, the same has to be filled up by the Manager in accordance with law after considering the claims of the appellant, the 1st respondent and other claimants, if any. Since the claim of the 1st respondent under Rule 51A relates to the period 2000-01, the same cannot override a claim under Rule 43 of Chapter XIVA KER. We notice that Rule 51A has been amended with effect from 17.06.2005. After the amendment, only those who are appointed in a vacancy having a duration of one academic year, will be treated as claimants under Rule 51A. Such claimants will have preference over the claimants under Rule 43. In this case, the 1st respondent's claim, as mentioned earlier, relates to the period 2000-01. Therefore, the submission made by the Manager, which is recorded by the learned Single Judge for disposing of the Writ Petition, cannot be sustained. In the result, the Writ Appeal is allowed. It is ordered that if any vacancy arises in the cadre of HSA (Mathematics) in future, the Manager shall fill up the same in accordance with the provisions of the Kerala Education Act and Rules, taking into account the claims of various incumbents working in the school on the date of occurrence of vacancy. WA Nos.2964/07 & 516/08 4 WA No.516/08 6. Since this appeal is directed against the very same judgment, it is ordered that the judgment in WA No.2964/07 will govern this case also. The Writ Appeals are disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA Nos.2964/07 & 516/08 5