IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WA.No. 743 of 2009() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.16697/2008 DATED 03/12/2008 .................... APPELLANTS/PETITIONERS ---------------------------------------- 1. THE MANAGER, SOOPIKUTTY NAHA MEMORIAL HIGHER SECONDARY SCHOOL, BEACH ROAD, PARAPPANANGADI - 676 303, MALAPPURAM DISTRICT. 2. P. BEEBA, HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), SOOPIKUTTY NAHA MEMORIAL HIGHER SECONDARY SCHOOL, BEACH ROAD, PARAPPANANGADI - 676 303, MALAPPURAM DISTRICT. BY ADV. MR.V.A.MUHAMMED, MR.K.E.HAMZA. RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. THE STATE OF KERALA, RPERESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 743 of 2009 J U D G M E N T K. Balakrishnan Nair (J) No representation. Dismissed. 07/01/2010. SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- C.T.RAVIKUMAR, JUDGE. //TRUE COPY// P.A. TO JUDGE rs. A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 743 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of September, 2010 Judgment Basheer, J: When this appeal is taken up for consideration it is submitted by the learned counsel that the appeal may be disposed of without considering the merit of any of the contentions raised by the appellants and relegate them to the Authority before which the Review Petition is pending consideration. 2. Briefly put, the issue involved in this case revolves around the question whether the departmental authorities were justified in refusing to shift appellant No.2 to the vacancy which arose on June 1, 2005 consequent on the promotion of the seniormost incumbent as Headmaster of the school. 3. It is the admitted position that appellant No.2 was initially appointed as High School assistant (Natural Science) against a leave vacancy, with effect from August 8, 2000 upto March 31, 2001. The said appointment was approved. Yet again appellant No.2 was allowed to continue in the very same leave vacancy with effect from June 6, 2001 upto August 31, 2004. Still further, she was again appointed against the very same leave vacancy when the incumbent extended his leave for another 5 years. It is beyond controversy that this appointment WA.743/2009. : 2 : was also approved by the Department. Thus the undisputed fact is that the appointment of appellant No.2 as High School Assistant (Natural Science) stood approved till March 31, 2009. 4. But in the meanwhile, a regular vacancy arose in the school when the seniormost teacher was promoted as Headmaster with effect from June 1, 2005. The Manager shifted appellant No.2 against that regular vacancy and sought for approval of the said “shifting”. But the request made by the Manager in this regard was turned down by the Department on the ground that going by the stipulations contained in G.O.(P). No.11/2002/G.Edn. Dated January 7, 2002 , a High School Assistant (Natural Science) cannot be accommodated against that vacancy. 5. The matter ultimately reached before the Government which took the view that the orders passed by the subordinate authorities were eminently justified in the facts and circumstances of the case. The Government further took the view that the Manager had not appointed a protected teacher in the school as mandated by the order issued by the Government on February 1, 2006 (G.O.(P).46/2006/G.Edn). Therefore the Government concurred with the view taken by the Departmental Officers. 6. The above order passed by the Government was WA.743/2009. : 3 : challenged by the appellants before the learned single Judge. But the writ petition was dismissed upholding the view taken by the Government. The said judgment is impugned in this appeal. 7. As mentioned earlier, learned counsel submits that the issue need not be considered by this Court at this stage since the appellants have already moved a petition for review before the Government claiming the benefit of Annexure III order issued by the Government(G.O.Ms.132/09/G.Edn. dated June 17, 2009). The Review Petition is stated to be pending in file No.A2/51778/09 dated 19/9/2009. 8. Learned senior Govt. Pleader who appears for the respondents submits that the Government will consider the Review Petition, if the same is pending. He further points out that the question whether the Manager was justified in ignoring the Government Order relating to appointment of protected teachers in the institution may also have to be looked into by the Government. 9. Anyhow, we do not propose to make any comment or observation on any of the contentions raised by the parties. In our view, the appellants can be relegated to the statutory authority before which the review petition referred to above is stated to be pending. 10. Therefore the Writ Appeal is disposed of with a WA.743/2009. : 4 : direction to respondent No.1 to consider and pass orders on the Review Petition referred to above. Viz., A2/51778/09 dated 19/9/2009, and decide the question whether appellants are entitled to get the benefit of Annexure III Govt. Order. The Govt. may also consider whether the Manager had complied with the directions contained in G.O.(Ms).46/06/G.Edn. dated February 1, 2006. 11. A final decision in the matter shall be taken by the Government after affording sufficient opportunity of hearing to the appellants, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. 12. The Government shall take a decision in the matter untrammelled by any of the observations made by the learned single Judge in the impugned judgment. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.