IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 34049 of 2006(C) --------------------------------------- PETITIONER(S): ----------------------- RAJENDRAN NAIR, LAB ASSISTANT, B.N.V.V. & HIGHER SECONDARY SCHOOL, THIRUVALLAM P.O., THIRUVANANTHAPURAM-27. BY ADVS. MR.R.T.PRADEEP SMT.PREETHY KARUNAKARAN SMT.S.K. MINI SMT.M.R.MINI SMT.MEENA.A. MR.JAYKAR.K.S. RESPONDENT(S): ------------------------ 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-1. 3. THE MANAGER, B.N.V.V. & HIGHER SECONDARY SCHOOL, THIRUVALLAM P.O., THIRUVANANTHAPURAM. BY GOVT. PLEADER MR.P.K.RAVIKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34049/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMO DT. 21.2.05. P2:- COPY OF THE G.O. (P) 331/01/G.EDN. DT. 9.11.01. P3:- COPY OF THE ORDER GO(MS) NO.79/03 DT. 28.3.03. P4:- COPY OF THE ORDER DT. 2.6.03. P5:- COPY OF THE ORDER DT. 11.4.05. P6:- COPY OF THE ORDER GO(MS) 299/04 DT. 24.9.04. P7:- COPY OF THE ORDER GO.(MS) 354/04 DT. 26.11.04. P8:- COPY OF THE ORDER DT. 11.4.05. P9:- COPY OF THE REPRESENTATION DT. 5.1.06. P10:- COPY OF THE EXPLANATION OF 2ND RESPONDENT DT. 6.4.06. P11:- COPY OF THE CLARIFICATION DT. 26.7.06 FROM 2ND RESPONDENT TO IST RESPONDENT. P12:- COPY OF THE ORDER DT. 31.10.06 BY IST RESPONDENT. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34049 of 2006-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2009. JUDGMENT The petitioner who was appointed as Watcher, was later promoted as a Lab Assistant from the category of 25% for transfer appointment from qualified Class IV employees. He is aggrieved by Ext.P12, whereby approval of his appointment has been rejected. 2. The petitioner has been working under the third respondent management as a Watcher from the year 1985. He was promoted as a Peon in the year 1987. The Government as per G.O.(P) No.331/2001/G.Edn. dated 9.11.2001 prescribed the method of appointment and qualification for non-teaching staff in aided Higher Secondary Schools. As far as the post of Lab Assistant is concerned, 25% of the total posts shall be filled up from among Class IV employees in the schools under the educational agency and the remaining 75% by direct recruitment. This is clear from Ext.P2. By Ext.P3, the Government sanctioned two posts of Lab Assistants in each aided higher secondary school. By Ext.P4, the Director of Higher Secondary Education accorded sanction for creation of two posts of Lab Assistant in the third respondent's school. wpc 34049/2006 2 3. The manager made the appointments subsequently. It appears that apart from making appointments in these two sanctioned posts, he made appointment to two supernumerary posts also. All the four happened to be fresh appointments coming under the 75% quota, that too without recognising the right of the petitioner who was the seniormost under the 25% category. 4. By Ext.P5, the Director of Higher Secondary Education granted approval of appointment of one Jaya Hari, being an appointee under the 75% category. As per Ext.P8, approval has been granted for the appointment of one Gopakumar D., and Anil Nair in two posts on supernumerary basis. The petitioner was appointed as per Ext.P1 by the Manager, after the Director refused approval of appointment one of the persons appointed under the 75% quota. By Ext.P6, the Government fixed a cut off date, viz. 28.3.2003 so as to regularise the appointments made to the post of four Lab Assistants. The Government later, by Ext.P7, issued a revised order. Going by Ext.P7, the person appointed by direct recruitment under 75% quota will be accommodated against the first sanctioned post and second sanctioned post will be earmarked for appointment by transfer appointment under 25% quota. The petitioner is relying upon the said clause. But the Director of Higher Secondary Education forwarded his recommendations as per Exts.P10 and P11 to the Government stating that wpc 34049/2006 3 the appointment cannot be approved as it was made after the cut off date, viz. 28.3.2003. Accordingly, the Government rejected the approval as per Ext.P12. The view taken in Ext.P12 is that since the petitioner was promoted to the post of Lab Assistant by the Manager on 21.2.2005, there exists no vacancy of Lab Assistant to promote him as on that date. The above finding is rendered relying upon clause (iv) of Ext.P7, to the effect that if one or both of the sanctioned posts happen to be vacant it will be filled up by accommodating the elder supernumerary person. Fresh appointments of Lab Assistants shall be made only after exhausting the supernumerary posts and a vacancy arises in the sanctioned posts. Accordingly, it was held that there is no vacancy. 5. Learned counsel for the petitioner submitted that the view taken by the Government cannot be accepted. It is pointed out that going by clause (ii) of Ext.P7, the person appointed by direct recruitment under 75% quota will be accommodated against the first sanctioned post and second sanctioned post will be earmarked for appointment by transfer appointment under 25% quota. The petitioner was eligible and entitled for such appointment. But the Manager made a mistake in filling up all the four posts by direct recruits. Approval was not granted in respect of one of the appointees. Obviously, going by Ext.P7 the person appointed under the 75% quota will be accommodated against the first sanctioned post. Going wpc 34049/2006 4 by Ext.P8, two other appointees were granted approval on supernumerary basis. Therefore, it is clear from these two orders that the second post earmarked for 25% quota has not been filled up properly. This fact has not been taken into consideration by the Government while passing Ext.P12 order. Only in the absence of a person coming under clause (ii) of Ext.P7 alone, the method provided under clause (iv) can be adopted. This is not a case where one of the sanctioned post was kept vacant prior to 28.3.2003 since the manager had filled up all the four vacancies by fresh hands. The eligibility of the petitioner for appointment is evident, since he was the rightful claimant under 25% quota, which is an admitted fact. Therefore, when the manager has issued Ext.P1 appointment order, that should have been with effect from 2.6.2003, viz. the date of creation of post as per Ext.P4. Merely for the said fault of the manager the petitioner cannot be deprived of his rightful claim. 6. In the counter affidavit, in para 4 it is clearly stated that 25% vacancy of Lab Assistant is reserved for 'by promotion category.” As such, one post is to be set apart for appointment by promotion from the existing Class IV employees of the school. But the manager has not done this prior to 28.3.2003. He appointed all the four Lab Assistants from open market. 7. It is clear from the averments contained in para 2 of the counter affidavit that an objection was taken regarding the approval of appointment wpc 34049/2006 5 in respect of one of the four appointees who were appointed from open market by the manager. It is stated that at the time of granting approval of appointment to the Lab Assistants, this anomaly was brought to the attention of the manager and then he appointed the petitioner as Lab Assistant with effect from 21.2.2005 and furnished the proposal for approval. This aspect is pointed out in Exts.P10 and P11 also by the Director. In Ext.P11, it is specifically stated in para 5 that “actually Shri Rajendran Nair was to be appointd in the post prior to 28.3.2003.” Therefore, clearly, if the appointment of the petitioner was made at the right point of time, it could have been approved, as eligibility has been recognised. The manager had illegally appointed another person in the post to which the petitioner had to be appointed. Once the approval is rejected in respect of one of the appointees, automatically the manager should have appointed the petitioner with effect from the date of Ext.P4. 6. In that view of the matter, the stand taken by the Government in Ext.P12 cannot be accepted. The main reason stated that the appointment was effected from 21.2.2005 and the regularisation can be made only in respect of appointments made up to 28.3.2003. As already noticed, the method provided in clause (iv) of Ext.P7 could be considered only if one of the sanctioned posts happened to be vacant. Herein, clearly the second post under 25% quota was filled up by the manager as on the cut off date. wpc 34049/2006 6 Therefore, the petitioner should be the beneficiary when the approval was refused in respect of one of the appointees in the vacancy earmarked for transfer appointment, under 25% category. 7. In that view of the matter, Ext.P12 is quashed. The third respondent Manager is directed to submit a fresh proposal for filling up the vacancy earmarked for 25% quota by appointing the petitioner with effect from 28.3.2003. Appropriate action shall be taken within a period of one month from the date of receipt of a copy of this judgment. The Manager will forward the proposal to the second respondent who will pass appropriate orders regarding approval in the light of the findings rendered above, within a further period of six weeks. The petitioner will be entitled for consequential monetary benefits also. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/