IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 16557 of 2010(T) -------------------------- PETITIONER(S): --------------- C.K.REENA,UPSA,CMC BOYS HIGH SCHOOL, ELATHUR,KOZHIKODE. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF GENERAL EDUCATION,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. THE DISTRICT EDUCTIONAL OFFICER, KOZHIKODE. 4. THE MANAGER,CMC BOYS HIGH SCHOOL, ELATHUR,KOZHIKODE. 5. K.R.BINDU,MANIKKOTH HOUSE, KOLAKKAD-PO,ATHOLI,KOZHIKODE. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R5 SRI.SAJU.S.A SRI.C.DILIP GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16557 of 2010 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE ORDER NO.K.Dis.B4/3582/06 DATED 7.4.2007 EXT.P2- TRUE COPY OF THE ORDER NO.K.DIS/9267/07/B5 DATED 3.11.2007 EXT.P3- TRUE COPY OF THE G.O.(Rt) NO.1146/G.Edn.dated 18.3.2009 (True Copy) P.A.To Judge T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.16557 Of 2010 ----------------------------------------------------- DATED THIS THE 25th DAY OF MARCH, 2011 J U D G M E N T The order passed by the Government recognising the superior claim of the 5th respondent under Rule 51A of Chapter XIV-A of KER in a retirement vacancy of UPSA which arose on 5.6.2006 is under challenge herein. 2. Both the petitioner and the 5th respondent had approved spells of service in the school. The petitioner was appointed as UPSA in the 4th respondent-School in a short term vacancy which arose between 24.9.2002 to 25.11.2002. The said appointment was approved by the 3rd respondent. In a leave vacancy of one Smt.Sushama Bai on 15.6.2005, which had to end on 10.6.2009, the petitioner was again appointed. During this period, a regular vacancy arose in the UP Section of the school consequent to the retirement of one Mr.Ahammed Koya. The Manager shifted the petitioner to that vacancy, as the petitioner was already working as UPSA. The same was objected by the 5th respondent and accepting her claim, the 3rd W.P.(C)No.16557/10 -2- respondent rejected the approval. The matter was taken up in appeal and revision and finally by Exhibit P3 order, the Government found against the petitioner. 3. The authorities below and the Government found that in the light of the fact that the 5th respondent had worked as HSA Malayalam in the school and retrenched with effect from 15.7.2002 due to reduction of posts, she was a claimant under Rule 51A of Chapter XIV-A of KER. In the light of amendment of Rule 51A which is effective from 17.6.2005, the claimant will have right to get appointment in the same or higher or lower category of teaching post for which he is qualified. Therefore, even if the post was of UPSA, the claim was recognised. 4. The learned counsel for the petitioner submitted that the Manager shifted the petitioner in the vacancy in the light of the fact that the petitioner had approved service from 24.9.2002 to 25.11.2002 and the petitioner is also a Rule 51A claimant. 5. Evidently, the approved service of the 5th respondent will get a precedence since she has approved service prior to 2002. She was retrenched from service on 15.7.2002 due to reduction of posts. Going by Rule 51A of Chapter XIV-A KER, she W.P.(C)No.16557/10 -3- is the person to be appointed under Rule 51A of Chapter XIV-A KER. Therefore, when a regular vacancy of UPSA arose, the Manager was bound to appoint the 5th respondent. It is pointed out that the Manager after appointing the petitioner in the regular vacancy, adjusted the 5th respondent against balance period of leave vacancy to which the petitioner was earlier appointed. Whatever that be, in the light of the superior claim of the 5th respondent under Rule 51A Chapter XIV-A, the shifting of the petitioner in the vacancy which arose on 5.6.2006 cannot be justified. In that view of the matter, I do not find any reason to interfere with the orders passed and the Writ Petition is dismissed. It is made clear that the petitioner will have a claim under Rule 51A of Chapter XIV-A whenever a vacancy arises in the school. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn