IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WP(C).No. 17204 of 2008(W) ---------------------------------- PETITIONER(S): ------------------- P.SAJITHA, AGED 27 YEARS, W/O.FOUSAL, HIGH SCHOOL ASSISTANT (MATHS), M.J.HIGHER SECONDARY SCHOOL, ELETTIL REPRESENTED BY POWER OF ATTORNEY HOLDER, P.KUNHOTHINKUTTY, S/O.IMBICHAMMED, AGED 60 YEARS, PARAYIL HOUSE, PUNNOOR CHERUPALAM P.O.,KOZHIKODE 673 585. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT. 4. THE MANAGER, M.J.HIGHER SECONDARY SCHOOL, ELETTIL 673 572, KOZHIKODE DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT. RANI DIOTHIMA R4 BY ADV. SRI.P.S.SIDHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 17204/2008 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE G.O.(Rt) NO.1285/07/G.EDN. OF GOVERNMENT. P2: COPY OF THE REPRESENTATION OF P.SAJITHA P3: COPY OF THE LETTER NO.64613/A2/07/G.EDN OF GOVERNMENT. P4: COPY OF THE G.O.(Rt) NO.3776/06/G.EDN. OF GOVERNMENT. P5: COPY OF THE G.O. (Rt) NO.3805/06/G.EDN. OF GOVERNMENT. P6: COPY OF THE ORDER NO.EM6/533.C.P.I/KDIS OF D.P.I. YEAR 2003 - 2004. P7: COPY OF DECISION REPORTED IN 1990 (I) KLT 602. P8: COPY OF THE JUDGMENT IN WPC. NO.15138/04. RESPONDENT'S EXHIBITS: R4(a): COPY OF JUDGMENT REPORTED IN 1993 (2) KLT SN 28. /TRUE COPY/ P.A. TO JUDGE. svs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17204 of 2008-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of June, 2011. JUDGMENT The grievance raised by the petitioner relates to the non approval of her appointment from the date of appointment itself, instead of 1.2.2006. 2. The petitioner was appointed as H.S.A. (Maths) from 1.11.2002 against a voluntary retirement vacancy of one Shri Vijayakumar, H.S.A. (Maths). Initially the approval was declined on the plea that a protected teacher has to be appointed. The Government passed an order as G.O.(P) No.46/2006/G.Edn. dated 1.2.2006 approving the appointment of teachers who were appointed upto 31.12.2004 on condition that the next arising vacancy should be filled up by a protected teacher and the petitioner was also included therein. But, thereafter the approval was rejected on the ground that there was no absolute vacancy as on the date of appointment of the petitioner. In the appeal filed from the said order, a direction was issued to approve the appointment of the petitioner from 1.11.2002 but the District Educational Officer again referred the matter to the Deputy Director of Education and the order was cancelled. Finally, the Government passed an order as per Ext.P1, directing to approve the appointment from 1.2.2006. wpc 17204/2008 2 The petitioner again moved the Government by Ext.P2 review petition, seeking to approve the appointment from 1.11.2002, which stands rejected as per Ext.P3 communication. 3. Learned counsel for the petitioner submitted that the Government has not considered all the aspects in detail while disposing of the review petition and the parties were not heard also. It is further pointed out that on 1.11.2002 a vacancy arose due to retirement. The issuance of G.O.(Ms) No.11/2002/G.Edn. dated 7.1.2002 will not bar consideration of the claim of the petitioner, as the said Govt. Order was found illegal by this Court and the judgment of the Division Bench upholding the validity of the Govt. Order, was only on 16.11.2002, i.e. after the appointment of the petitioner. It is further pointed out that going by the staff fixation orders, it can be seen that there is a regular vacancy and therefore the approval is liable to be granted from 1.11.2002. Various Govt. Orders have also been relied upon in this context. Learned counsel for the petitioner further submitted that Ext.P9 is the seniority list of teachers of the school. There were 14 posts of H.S.A. Maths in the school and the petitioner was the 14th teacher appointed in the voluntary retirement vacancy of Shri N. Vijayakumar. By Ext.P10, the retirement of Shri Vijayakumar was also accepted by the department. wpc 17204/2008 3 4. Whether there was a regular vacancy in the light of the above aspects, will have to be considered by the Government after assessing various materials relied on by the petitioner. Ext.P3 is a cryptic order wherein, it is mentioned that no fresh grounds are there to re-consider the request of the petitioner. This was issued on the plea that in the earlier order passed by the Government it was found that there was no vacancy as on 1.11.2002. Actually, in Ext.P1, the above aspect has not been gone into in detail, to refuse the relief to the petitioner. 5. Evidently, the petitioner's appointment has been approved with effect from 1.2.2006. He had pointed out various aspects in Ext.P2 representation. Additional materials have been produced in this writ petition also in support of his case and the Manager has filed a counter affidavit supporting the claim of the petitioner. Therefore, all these matters will be reconsidered by the Government in the light of the staff fixation orders and other relevant orders, seniority list as well as promotion granted to Shri Vijayakumar who availed voluntary retirement. 6. Therefore, Ext.P3 is quashed. There will be a direction to reconsider Ext.P2 representation after hearing the petitioner and the Manager and the same will be done within a period of five months from the wpc 17204/2008 4 date of receipt of a copy of this judgment. The writ petition is allowed to the above extent. No costs. (T.R. Ramachandran Nair, Judge.) kav/