IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 33250 of 2010(E) -------------------------- PETITIONER(S): --------------- PREETHAKUMARI.K.V, D/O.BALAKRISHNAN NAMBIAR, AGED 38 YEARS, UPSA, MATTANNUR HSS, MATTANNUR P.O., KANNUR DISTRICT. BY ADV. SRI.GEORGE MECHERIL SRI.M.KRISHNAKUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY EDUCATIONAL DISTRICT, KANNUR DISTRICT 670 101. 3. THE MANAGER, MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR P.O., KANNUR DISTRICT 670 702. 4. SHEENA.M.K, H.S.A(MATHS), MATTANNUR HSS, MATTANNUR P.O., KANNUR DISTRICT 670 702. 5. BINDU, H.S.A (MATHS), MATTANNUR HSS, MATTANNUR P.O., KANNUR DISTRICT 670 702. 6. SMITHA C.THOMAS, CHILAMBIL HOUSE, H.S.A (MATHS), MATTANNUR HSS, MATTANNUR P.O., KANNUR DT 670 702. ADV. SRI.B.KRISHNAN FOR R4 TO 6 SRI.R.PARTHASARATHY FOR R4 TO 6 GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- W.P.(C).No.33250 of 2010 E --------------------------------------- Dated this the 9th day of December, 2010 JUDGMENT The petitioner is working as U.P.S.A. in Mattannur Higher Secondary School, Mattannur. According to her, she is qualified to be promoted as H.S.A. (Maths) in the High School Section of the school. She claims that she is a Rule 51A as well as Rule 43 claimant under Chapter XIVA KER. It is stated that in 2009-2010, one vacancy and in 2010-2011, two vacancies of H.S.A. (Maths) arose in the school. The petitioner submitted Exhibit P2 representation dated 15.4.2010 before the Manager in which the petitioner put forward a claim under Rule 51A of Chapter XIVA KER. It is also pointed out in Exhibit P2 that there are no other senior claimants, senior to the petitioner. It is stated that the Manager did not take any action on Exhibit P2. However, the Manager appointed respondents 4 to 6 in June 2010. There upon the petitioner filed Exhibit P3 representation dated 12.6.2010 before the WPC No.33250/2010 2 District Educational Officer in which the petitioner put forward the claim under Rule 43 of Chapter XIVA KER. It is also stated in Exhibit P3 that the Manager posted Rule 51A claimants as H.S.A. (Mathematics) without considering the claim of the petitioner. The District Educational Officer issued Exhibit P4 communication to the petitioner which reads as follows : “With reference to the above I am to inform you that as per rules in vogue claims under Rule 51A Chapter XIVA KER will prevail over Rule 43 and the Manager of aided school is the authority to appoint teacher in vacancies available to that school.” 2. Exhibit P4 is statement of a view on the legal aspect that the claims under Rule 51A will prevail over a claim under Rule 43. Exhibit P4 was not issued after considering the rival claims of the petitioner on the one hand and respondents 4 to 6 on the other. It was not issued after hearing all the parties. Therefore, Exhibit P4 need not be taken as a conclusive finding on the claim put forward by the petitioner. The matter WPC No.33250/2010 3 has to be considered by the District Educational Officer at the time of considering the question of approval of the appointment of respondents 4 to 6. The objection of the petitioner also can be considered then and appropriate orders can be passed. The District Educational Officer has not so far considered the question of approval of the appointment of respondents 4 to 6. 3. The reliefs prayed for by the petitioner in the Writ Petition are the following : “(a) issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding the third respondent to consider Ext.P2 and pass orders on the same expeditiously after hearing the petitioner. (b) issue a writ in the nature of certiorari or such other appropriate writ, order or direction calling for the records leading up to the issuance of Exts.P4 and quash the same. WPC No.33250/2010 4 (c) issue a direction to the second respondent not to approve the appointments of respondents 4 to 6 pending, disposal of the Writ Petition. (d) declare that the petitioner is entitled to be appointed as H.S.A. (Maths) at Mattannur High School under the third respondent as a Rule 43 or Rule 51A claimant in the first vacancy that arose during 2009-2010 academic year ; (e) pass such other order or direction which this Honourable Court would deem just and proper in the facts and circumstances of the case.” 4. It is not necessary to quash Exhibit P4 at this stage. As stated earlier, it was only a statement of opinion on a question of law. Exhibit P4 was not rendered after hearing all the WPC No.33250/2010 5 parties and after considering their respective claims. 5. In the facts and circumstances of the case, the Writ Petition is disposed of as follows : The District Educational Officer shall consider the proposal for approval of the appointment of respondents 4 to 6 and while doing so, the District Educational Officer shall consider the claim put forward by the petitioner for being appointed as H.S.A. (Mathematics) and the objection raised by the petitioner against the appointment of respondents 4 to 6, in accordance with law and after affording an opportunity of being heard to the petitioner, respondents 4 to 6 and the Manager. The District Educational Officer shall pass appropriate orders within two months from the date of receipt of a copy of the judgment or within two months from the date of receipt of the proposal for approval of the appointment of respondents 4 to 6 which ever occur later. The petitioner shall produce a copy of the Writ WPC No.33250/2010 6 Petition, a copy of the counter affidavit and certified copy of the judgment before the District Educational Officer. The petitioner as well as respondents 4 to 6 would be entitled to file detailed representation before the District Educational Officer. K.T.SANKARAN JUDGE csl