IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WA.No. 320 of 2009() -------------------- (AGAINST THE JUDGMENT IN W.P.(C) NO.15969/2003 DT.27.11.2008) APPELLANT/ PETITIONER ------------------------ C.P.DINESAN, PHYSICAL EDUCATION TEACHER, AIDED MAPLA HIGH SCHOOL, POOVAMBAYI, KINALUR.PO, BALUSSERY, KOZHIKODE DISTRICT. BY ADV. SRI.K.V.SOHAN RESPONDENTS/ RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA. 5. THE MANAGER, AIDED MAPLA HIGH SCHOOL, POOVAMBAYI, KINALUR.P.O, BALUSSERY, KOZHIKODE. 6. NABEEL, PHYSICAL EDUCATION TEACHER, AIDED MAPLA HIGH SCHOOL,POOVAMBAYIL, KINALUR.P.O, BALUSSERY, KOZHIKODE. 7. NAMEEL.K, KANDIYIL HOUSE, KUTTIADI.PO, KOZHIKODE. GOVT.PLEADER, SRI.NOBLE MATHEW FOR R1 TO R4. ADV.SRI.C.P.MUHAMMED NIAS FOR R5. ADV.SRI.P.C.SASIDHARAN FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- W.A.No.320 OF 2009 ---------------------------------------- Dated this the 5th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner and respondents herein are the respondents in the writ petition. 2. The brief facts of the case are the following: The appellant was appointed as Physical Education Teacher in the U.P. section of the 5th respondent's High School on 18.8.1993. The vacancy arose as a result of resignation of one Mr.K.K.Musthafa on 27.5.1993, who was appointed to that post on 18.11.1992. Mr.Musthafa was appointed in a vacancy which arose on 1.10.1992, as a result of death of Sri.T.K.Rajagopalan. But, after the death of Sri.Rajagopalan, the post of Physical Education Teacher was abolished during the academic year 1993-94. Since Mr.Musthafa was appointed in a non existing post, his appointment was not approved. For the very same reason, the appellant's appointment was also not W.A.No.320/2009 2 approved. The Manager moved the Deputy Director of Education, challenging the order of the D.E.O. declining approval of appointment of the appellant. The said appeal was also dismissed. The petitioner attempted a petition before the Government against the order of the Deputy Director. That was also dismissed. The order of the Government was passed on 26.10.1996. 3. The appellant, challenging the orders of the District Educational Officer, Deputy Director and Government dated 23.11.1993, 8.9.1994 and 26.10.1996 respectively, filed the present writ petition on 17.3.2003. During the pendency of the writ petition, a vacancy of Physical Education Teacher arose in the school on 31.3.2005. The said vacancy could be filled up on 1.6.2005. But, the Manager appointed the 6th respondent, instead of appointing the appellant, in that vacancy. The appellant submits, on 1.6.2005 there was a direction from this Court not to fill up that vacancy. The petitioner amended the writ petition challenging the order of the Manager appointing the 6th respondent as Physical Education Teacher. W.A.No.320/2009 3 4. The learned Single Judge, after hearing both sides, dismissed the writ petition, holding that the petitioner has no right to get reappointment as his earlier spell of appointment was approved by the D.E.O. Challenging the said judgment, this appeal is filed. 5. According to the petitioner, since the Manager appointed him and even though the appointment is not approved, when another vacancy arose, the Manager was bound to consider his claim for appointment first, before going for a fresh hand. In support of that submission, the learned counsel relied on the decision of this Court in W.A.No.40/1995 dated 30.1.1995. The learned counsel also relied on the decision of this Court in Joshy v. Krishna P.Rajan [2006 (4)KLT SN 63]. We heard the learned counsel appearing for the respondents also. 6. We find that none of the provisions in the K.E.R. supports the claim of the appellant. In the absence of any right flowing from any of the rules, this Court cannot grant any relief to the appellant. The decision in W.A.No.40/1995 can be W.A.No.320/2009 4 distinguished on facts. It was a case, where, a teacher was appointed for two spells and his appointments were approved. But, those appointments were made disregarding the claim of a teacher under Rule 51A. So, at the instance of the claimant, the subsequent appointee's appointments were set aside. The matter reached the Apex Court. The Apex Court affirmed the judgment of this Court upholding the right of the 51A claimant and interfering with the appointment of the appellant before it. But, the Hon'ble Supreme Court observed that the same will not stand in the way of the Manager appointing him in future vacancies. In the light of the special facts of the case, when the Manager went for a new hand, when a vacancy arose, without considering the aforementioned incumbent, this Court interfered and directed the appointment of the said person. The direction of the learned Single Judge was affirmed in W.A.No. 40/1995 also. We feel that the facts of the said case are entirely different from the facts of this case. Further, the reported decision of this Court in Joshy v. Krishna P.Rajan (supra) relied on by the appellant also is distinguishable on facts. In that case, there was some delay in approving the original appointment, while so the W.A.No.320/2009 5 fresh vacancy arose. In that context the said judgment was rendered. In fact, the initial appointment in that case was approved, later, also. So, the above decision also will not help the appellant in any way. Therefore, we find no reason to interfere with the judgment of the learned Single Judge. Accordingly, the writ appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps