IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WP(C).No. 428 of 2010(C) ------------------------------------- PETITIONER(S): ------------------------- ARUN GILBERT.G, ANU BHAVAN, UCHAKKADA P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. MR.P.N.MOHANAN RESPONDENT(S): --------------------------- 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, THIRUVANANTHAPURAM. 4. MANAGER, BNV VOCATIONAL & HIGHER SECONDARY SCHOOL, VOCATIONAL HIGHER SECONDARY SCHOOL FOR GIRLS, THIRUVALLAM, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. T.T. MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 428 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2010 J U D G M E N T The petitioner was appointed as a Full Time Menial w.e.f 1.7.2005, in the 4th respondent's School in a vacancy which arose on account of promotion of Anilkumar as peon, who was holding the post of F.T.M. One Premakumari raised a dispute regarding the promotion given to Anilkumar. Consequently the promotion of Anilkumar as Peon was not approved. Consequently, the appointment of the petitioner as Full Time Menial was also not approved. Later on the dispute between Anilkumar and Premakumari was resolved by promoting both of them as peons on 4.2.2006. consequently the petitioner's appointment was approved with effect from 4.2.2006. The petitioner approached the Government for approval of his appointment w.e.f. 1.7.2005. Originally the Government issued Ext.P6 letter directing approval of the appointment of the petitioner w.e.f 1.7.2005. Later on, it was cancelled by Ext.P9, without affording an opportunity of being W.P. (C) No. 428 OF 2010. : 2 : heard of the petitioner. Consequently the DPI passed Ext.P10 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs:- i. Call for the records leading to issue Ext.P9 and Ext.P10 and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction. ii. issue a writ of mandamus directing the 3rd respondent to approve the appointment of the petitioner as Full Time Menial with effect from 1.7.2005 as per the direction contained in Ext.P3 circular and Ext.P6 order issued by the 1st respondent within the time limit to be fixed by this Honourable Court. iii.direct the 3rd respondent to issue instructions to the 4th respondent to disburse the pay and allowance due to the petitioner for the periiod from 1.7.2005 to 3.2.2006 were the petitioner has worked as Full Time Menial. iv.declare that petitioner is entitled to get approval of his service for the period 1.7.05 to 2.4.06 and for salary for the period also. v.grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case 2. The petitioner who is entitled to be appointed only in a vacancy arising on account of promotion of either Anilkumar or Premakumari. Although Anilkumar was originally promoted, and W.P. (C) No. 428 OF 2010. : 3 : the petitioner appointed on 1.7.2005 in the vacancy left by Anilkumar, since the promotion of Anilkumar was not approved with effect from 1.7.2005, the appointment of the petitioner also could not have been approved w.e.f. 1.7.2005. The promotion of Anilkumar and Premakumari were approved only with effect from 4.2.2006. Therefore the vacancy for appointing the petitioner also occurred only on that date. That being so, the petitioner cannot validly raise a claim for appointment prior to 4.2.2006 since till that date both Anilkumar and Premakumari were legally still Full Time Menials and therefore there never was a vacancy of FTM for accommodating the petitioner. If that be so even if the petitioner was to be given an opportunity of being heard, the decision could not have been any different. Therefore I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly the writ petition is dismissed. (S. SIRI JAGAN, JUDGE) jma //true copy// P.A. To Judge