IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 27th NOVEMBER 2008 / 28TH ASWINA 1930 WP(C).No. 15969 of 2003(A) -------------------------- PETITIONER(S): --------------- C.P. DINESAN, PHYSICAL EDUCATION TEACHER, AIDED MAPLA HIGH SCHOOL, POOVAMBAYI, KINALUR P.O., BALUSSERY, KOZHIKODE DISTRICT. BY ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA. 5. THE MANAGER, AIDED MAPLA HIGH SCHOOL, POOVAMBAYI, KINALUR P.O., BALUSSERY, KOZHIKODE. ADDITIONAL RESPONDENTS: 6. NABEEL, PHYSICAL EDUCATION TEACHER, AIDED MAPLA HIGH SCHOOL, POOVAMBAYIL, KINALUR P.O., BALUSSERY, KOZHIKKODE. 7. NAMEEL.K., KANDIYIL HOUSE, KUTTIADI P.O., KOZHIKODE. (ADDL.R6 IMPLEADED AS PER ORDER IN I.A.NO.10584/05) (ADDL.R7 IMPLEADED AS PER ORDER IN I.A.NO.3904/07) ADV. SRI.C.P.MOHAMMED NIAS FOR R5 GOVERNMENT PLEADER SHRI.M.R.SABU, FOR R1 TO 4 SRI.P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 15969/03. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE STAFF FIXATION ORDER. P2. COPY OF THE ORDER OF DEO, DTD.23.11.93. P3. COPY OF THE ORDER DTD.8.9.94 OF DDE, CALICUT. P4. COPY OF THE REPRESENTATION DTD.27.9.95 TO R1. P5. COPY OF THE ORDER OF R1 DTD.26.10.96. P6. COPY OF THE ORDER DTD.15.1.07. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 15969 of 2003 ================== Dated this the 27th day of November, 2008 J U D G M E N T The petitioner was appointed as a Physical Education Teacher in an aided UP School, of which the 5th respondent is the manager. According to the petitioner, that vacancy was that of a teacher who died on 1.10.1992. Another teacher, one K.K.Musthafa, was appointed to that vacancy, who left service seeking other employment. It is in that vacancy the petitioner was appointed. However, the departmental authorities did not approve the petitioner's appointment. The appeal before the Deputy Director of Education was rejected as per Ext.P3. The petitioner's revision was also rejected by Ext.P5 order. The petitioner is challenging Exts. P3 and P5 orders in this original petition. Subsequently another vacancy arose on 31.3.2005 to which the manager appointed the additional 6th respondent. The petitioner is now staking a claim to that post also. 2. The educational authorities, the manager and the additional 6th respondent oppose the contentions of the petitioner. 3. I have heard the parties. w.p.c.15969/03 2 4. The petitioner can validly claim approval of his appointment only if there was a vacancy to which the petitioner could have been appointed. Ext.P1 is the staff fixation order for the year 1992-93. In the same, one post of Physical Education Teacher was abolished on the death of the incumbent. On abolition of that post, there is no vacancy to which the petitioner could have been validly appointed. In so far as Ext. P1 is not under challenge before me, the petitioner cannot validly claim approval of his appointment since the vacancy to which the petitioner has been appointed was abolished by Ext. P1 order. That being so, I do not find any merit in the challenge against Exts. P3 and P5 orders. 5. As regards the vacancy which arose on 31/03/2005, the contention of the petitioner is that the manager cannot after having appointed the petitioner first, appoint another new person disregarding the claim of the petitioner. In support of his contention the petitioner relies on a Division Bench decision of this Court in J oshi v. Krishna P. Rajan [2006 (4) KLT SN 63 (C.NO.85)]. I have considered the ratio of that decision with reference to the facts of this case. In that decision what has w.p.c.15969/03 3 been held is thus: “When a manager had appointed legally an incumbent to a temporary or short term vacancy and if he has to make another appointment in a vacancy of the same post that had arisen later in his school, necessarily, he has to go by his own commitment and actions. He cannot deny either promotion or reappointment to an incumbent earlier appointed by him, contending that order approving that appointment made by him had not been passed by the time next vacancy had arisen. It will take some time for the Departmental authorities to pass orders. In a vacancy that had arisen subsequently, the Manager had the liability to protect the real rightful claimant.” The above decision relates to a legal appointment, approval of which was delayed. That cannot apply to the petitioner's case in so far as the petitioner's appointment was not a valid one, since that appointment was to a non-existent post. That being so, the petitioner cannot lay a superior claim to the vacancy which arose on 31.3.2005, in so far as legally the petitioner and the additional 6th respondent stands on the same footing. Perhaps morally what the manager done may be wrong. But that does not give a legal right to the petitioner which can be enforced as against respondents 5 and 6. In the above circumstances, I do not find any merit in the original petition and accordingly, the same is dismissed. Sd/- sdk+ S. SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.15969/03 4 S.SIRI JAGAN, J. ================= W.P.(C).No. 15969/2008-A ================= J U D G M E N T 27th November, 2008