IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WA.No. 578 of 2007() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.21836/2006 Dated 19/12/2006 .................... APPELLANT: PETITIONER --------------------- PRASANNA PANNIYARAYIL, ASSISTANT TEACHER(U.P.S.A), MODAKKALLUR A.U.P. SCHOOL, MODAKKALLUR, KOZHIKODE DISTRICT. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.V.MADHUSUDHANAN RESPONDENTS: RESPONDENTS ----------------------- 1. DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT. 2. ASSISTANT EDUCATIONAL OFFICER, QUILANDY, KOZHIKODE DISTRICT. 3. MANAGER, MODAKKALLUR A.U.P.SCHOOL, MODAKKALLUR P.O., KOZHIKODE DISTRICT. BY GOVERNMENT PLEADER SRI.SANDESH RAJA - R1 & 2 SRI.ABRAHAM MATHEW (VETTOOR) - R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- W.A.No.578 OF 2007 ------------------------------------- Dated 29th May, 2008 JUDGMENT Koshy,J . Writ petitioner was appointed in the Modakkallur A.U.P. School by Ext.P1 appointment order issued by the then Manager. The appointment order is dated 5.6.2002 and appointment is with effect from that date. She was appointed in a retirement vacancy. School re- opening date in that academic year was also 5.6.2002. Thereafter, an application was filed for approval of the appointment on the same date. It was rejected by Ext.P3 on the sole ground that there were existing protected teachers. As per the Government Order, an appointment can be made in any permanent vacancy only after accommodating the protected teachers in the subject. There were no protected teachers in the school. On that ground approval cannot be rejected. Third respondent Manager filed an appeal to the first respondent. Meanwhile O.P.No.1485/2002 was filed by a member of the family contending that the Manager is not eligible for appointment and she is entitled to be appointed as Lower Grade Hindi Teacher. An interim order was passed on 7.6.2002 in that O.P. with a direction to the first respondent Manager not to make any new appointment. The order reads as follows: W.A.578/2007 2 “There will be a direction to the first respondent not to make any new appointments without obtaining orders from the court.” But, before that order appointment of the petitioner was made on 5.6.2002 as U.P.S.A. It can be seen that application for approval was sent on 5.6.2002 itself as can be seen from Ext.P2. Ext.P3 order also shows that application for approval was dated 5.6.2002, i.e., before Ext.P4 interim order. Therefore, there is no dispute that the petitioner was appointed before the interim order. The O.P. in which the interim order was passed was heard along with other cases and that was closed. The District Educational Officer rejected the appeal by Ext.P4 proceedings only because there was an interim order preventing the Manager from appointing anybody. That is virtually incorrect because at the time of her appointment there was no interim order prohibiting appointment. There is no dispute about the time of appointment and first respondent in Ext.P5 was the Manager. Petitioner was working from 5.6.2002. Though the appointment was not approved, there was no rival claim also at the time of her appointment. Therefore, she challenged the order of the second respondent before this court. Learned single Judge dismissed the writ petition because the petitioner was appointed in violation of Ext.P4 W.A.578/2007 3 interim order. Apparently, it is not correct because the interim order was dated 7.6.2002 and the appointment was on 5.6.2002. So, at the time of appointment of the petitioner there was no rival claim and there is no dispute that she is educationally qualified. There is also no dispute that there was vacancy at the time of her appointment. 2. In the above circumstances, we set aside the impugned judgment of the learned single Judge as well as Exts.P3 and P4 and Educational authorities are directed to approve the appointment of the petitioner and grant her consequential benefits. The Asst. Educational Officer is directed to implement the judgment as expeditiously as possible. The appeal is allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks