IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 WA.No. 1970 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.17109/2010 Dated 19/07/2010 .................... APPELLANTS/RESPONDENTS 1 TO 3 IN WPC --------------------------------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY. BY G.P. SMT.T.B.RAMANI RESPONDENTS/PETITIONER & R4 & R5 IN THE WPC ---------------------------------------------- 1. P.V.GEETHA, PROTECTED MUSIC TEACHER, G.V.H.S.S. NATTAKOM, 686 018 RESIDING AT NEDUMPALLIL ILLAM, KUMARANALLOOR, KOTTAYAM PIN 2. INFANT JESUS HIGH SCHOOL, VADAYAR, VAIKOM, KOTTAYAM REP. BY THE MANAGER, PIN - 686141. 3. THE CORPORATE MANAGER (BY POWER OF ATTORNEY), CORPORATE MANAGEMENT OF SCHOOLS, DIOCESE OF KANJIRAPPALLY, PIN - 686 507. ADV. SRI.N.UNNIKRISHNAN FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... Writ Appeal No.1970 of 2010 .................................................................... Dated this the 25th day of February, 2011. JUDGMENT Ramachandran Nair, J. Appeal is filed by the State and it's agencies challenging the judgment of the learned Single Judge vacating the direction of the appellants to the first respondent to join the third respondent-school and with direction to the appellants to appoint the first respondent in the second respondent-school. The first respondent, the writ petitioner was appointed as a Music Teacher on 13.7.1981 by the second respondent which is an Aided school. However, in 1985 there was fall in vacancy and, therefore, the first respondent became a protected teacher. She continued as a protected teacher and was appointed by the appellants in Government schools where she is working even as of now. While so, a vacancy arose in a school in the third respondent's management which is within the District where the first respondent remains a protected teacher and, therefore, the appellants directed the first respondent to join the third respondent's school in the vacancy W.A. 1970/2010 2 available there. However, based on a request from second respondent to appoint the first respondent in their school, the first respondent filed the W.P.(C) claiming that she is eligible to be posted in the second respondent school. This was allowed by the learned Single Judge against which this appeal is filed. 2. After hearing the Government Pleader for the appellants and counsel for the first respondent, we feel the controversy is in a very narrow campus i.e. whether the second respondent has vacancy for a Music Teacher to accommodate the first respondent. If vacancy is there, then certainly the first respondent's claim is tenable and the judgment cannot be called in question by the appellants. However, Government Pleader has specifically stated on behalf of the appellants that second respondent-school has only three periods in a week for Music in the Art subject and for want of minimum periods of work there is no vacancy of teacher in the Art Group comprised of Drawing and Music. The first respondent or the second respondent has no case that during the academic year 2009-2010 vacancy of a Music teacher is recognised in the second respondent-school while fixing the staff strength. Fundamentally first respondent can seek appointment only when vacancy is noted in the course of fixing staff strength by the W.A. 1970/2010 3 D.E.O. and unless he identifies the availability of post, first respondent cannot claim posting merely because the second respondent-school desires to have a Music teacher. In the circumstances and having regard to the fact that first respondent has gone and joined third respondent and is continuing there and since the academic year is coming to a close, we direct the third appellant to verify and fix the staff strength with specific reference to the availability of a teacher's post in the Art Group in the second respondent-school with reference to the availability of students in that school from the next academic year i.e. 2011-2012. He should examine this and take a decision atleast by 30th June, 2011 and if there is a vacancy, appellants 2 and 3 will appoint the first respondent in that post immediately thereafter. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms