IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(C).No. 8618 of 2007(A) ------------------------------------- PETITIONER: ------------------- ABY MATHEW, HSA (PHYSICAL SCIENCE), SALEM VOCATIONAL HIGHER SECONDARY SCHOOL, WEST VENGOLA, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SMT.DHANYA CHANDRAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM. 3. THE MANAGER, SALEM VOCATIONAL HIGHER SECONDARY SCHOOL, WEST VENGOLA, PERUMBAVOOR, ERNAKULAM DISTRICT. 4. SMT. JESSY PETER, MANAKKAKUDY HOUSE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SRI. M.P. SREEKRISHNAN, ADV. SRI.ANIL K.NARENDRAN, ADV. SRI.V.A.MUHAMMED, ADV. SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8618/2007-A: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE APPOINTMENT ORDER WAS APPROVED BY THE R2. AS PER ORDER NO. B3 3261/06/K. DIS. DTD. 06/11/06. EXT.P.2: COPY OF THE ORDER NO. B3/3184/2006/K. DIS. DTD. 31/10/2006 ISSUED BY THE R.2. EXT.P.3: COPY OF THE LETTER DTD. 10/11/2006 SENT BY THE R.3. TO THE R.4. EXT.P.4: COPY OF THE REQUEST SUBMITTED BY THE R.4. BEFORE THE R.3. ON 18/11/06. EXT.P.5: COPY OF THE G.O. (RT). NO. 738/07/G.E. DTD. 19/02/2007 ISSUED BY THE R.1. EXT.P.6: COPY OF THE ORDER NO. B3-5610/05/D. DIS. DTD. 14/07/05 ISSUED BY THE 2ND RESPONDENT. EXT.P.7: COPY OF THE APPOINTMENT ORDER OF THE R.4. WAS APPROVED BY THE R.2. VIDE ORDER NO. B3/5842/04/K. DIS. DTD. 08/02/04. EXT.P.8: COPY OF THE ORDER NO. M-1/2007-2008 DTD. 03/07/07 ISSUED BY THE R3. EXT.P.9: COPY OF THE ORDER NO. B3-4160/07/K. DIS. DTD. 06/11/07 ISSUED BY THE R.2. RESPONDENT'S EXHIBITS: EXT.R4.A: COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER AND THE APPROVAL THEREOF DTD. 21/07/2003- 08/02/2004. EXT.R4.B: COPY OF THE ORDER OF APPOINTMENT DTD. 01/06/2004. EXT.R4.C: COPY OF THE ORDER NO. B3-4492/04/D DIS. OF THE DIST. EDL. OFFICER DTD. 14/07/2004. EXT.R4.D: COPY OF THE ORDER NO. B3-4412/06/D.DIS. OF THE GOVERNMENT DTD. 29/07/2006. EXT.R4.E: COPY OF THE DECISION REPORTED IN 2000 (2) K.L.T. 29 DTD 21/02/2000. EXT.R4.F: COPY OF THE DECISION REPORTED IN 2002 (3) K.L.T. 544 DTD. 11/09/2002. W.P.(C). NO.8618/2007-A: EXT.R4.G: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DIST. EDL. OFFICER DTD. 26/05/2006. EXT.R4.H: COPY OF THE G.O. (P). NO. 187/2005/G. EDN. OF THE GOVERNMENT DTD. 19/06/2005. EXT.R4.I: COPY OF THE LETTER NO. 22243/J2/06/ G. EDN. OF THE GOVERNMENT DTD. 26/07/2006. EXT.R4.J: COPY OF THE DECISION REPORTED IN 2006 (3) K.L.T. DTD. 27/06/2006. EXT.R4.K: COPY OF THE ORDER NO. B3/3184/2006/K. DIS OF THE DIST. EDL. OFFICER DTD. 31/10/2006. EXT.R4.L: COPY OF THE LETTER OF THE MANAGER DTD. 10/11/2006. EXT.R4.M: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO. 31374/2006-IDTD. 27/11/2006. EXT.R4.N: COPY OF THE G.O. (RT). NO. 738/07/G. EDN. OF THE GOVERNMENT DTD. 19/02/2007. EXT.R4.O: COPY OF THE DECISION REPORTED IN 2004 (2) K.L.T. SHORT NOTES (CASE NO. 60) PAGE 53. ` //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.8618 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2008 JUDGMENT Petitioner calls in question Ext.P5 order dated 19.2.2007, in so far as it interferes with the appointment of the petitioner, which is approved as per Ext.P1. Declaration is sought that the fourth respondent is not legally entitled to put forth a claim under Rule 51A of Chapter XIVA of Kerala Education Rules to the post of HSA (Physical Science), in which the petitioner was appointed and approved as per Ext.P1. 2. Case of the petitioner in brief is as follows: Petitioner was appointed as a Lower Division Clerk by the third respondent in the Vocational Higher Secondary School. The appointment was approved. The post of HSA (Physical Science) was available during the academic year 2004-05 and 2005-06. The fourth respondent did not raise any claim under Rule 51A to the newly sanctioned post available during the academic year 2004-05 and 2005-06. The vacancy was kept unfilled. The said vacancy was available during the academic year 2006- 2007. One Sri.A.V.Paulose retired on 31.3.2006. Thus another open WPC.8618/2007. 2 vacancy arose during the academic year 2006-2007 in the cadre of HSA (Physical Science). Petitioner came to be appointed and his appointment came to be approved by Ext.P1. Then the fourth respondent raised a claim under Rule 51A, which was rejected by Ext.P2. Fourth respondent preferred revision before the first respondent and it is this revision filed by the fourth respondent which came to be allowed by Ext.P5. Government by the said order set aside Ext.P2 and directed the Manager to appoint the fourth respondent notionally with effect from 5.6.2006 in the retirement vacancy and adjust the appointment of the petitioner against the second vacancy. Ext.P6 is the Staff Fixation order for the year 2005-2006, which shows that second post of HSA (Physical Science) was available during 2005-2006. 3. I heard learned counsel for the parties. Sri.Jaju Babu would contend that the fourth respondent had approved service as HSA (Physical Science) from 21.7.2003 to 31.10.2003, but she did not raise any claim under Rule 51A of Chapter XIVA of KER to the newly sanctioned post of HSA (Physical Science) available during the academic year 2004-05 and 2005-06. He would contend that at any rate there are two vacancies of HSA (Physical Science) as evident from the stand of the Government in the WPC.8618/2007. 3 counter affidavit and there is no basis for shifting of the petitioner to the second vacancy as was done in the impugned order. He would also raise a contention that the appointment being in the year 2006, in so far the fourth respondent is concerned, as she had only three months of approved service, she could not claim the benefit of Rule 51A without completing one year as postulated in the amended rule. 4. It is clear that the petitioner was working as a Clerk. He was promoted as HSA (Physical Science) under Rule 43. This is done against a retirement vacancy, which vacancy arose on 1.4.2006. On the said date the appointment of the fourth respondent as HSA (Physical Science) stood approved, ( it was approved on 8.2.2006). In two ways it could be said that the claim of the petitioner vis-a-vis the fourth respondent cannot hold good. In the first place, it is settled law that a claim under Rule 43 will not lie at the instance of a member of a non-teaching staff as against a claim of a teacher. Even if there is a claim of a teacher under Rule 51A, after the amendment to Rule 51A, a claimant under Rule 51A is entitled to succeed vis-a-vis a claimant under Rule 43. Thus it is clear that as against the vacancy which arose on 1.4.2006 the fourth respondent, whose appointment stood approved on 8.2.2006 was entitled to be appointed. This was not WPC.8618/2007. 4 done and instead it was the petitioner, who was appointed. The appointment of the petitioner was clearly illegal and was not liable to be approved and if at all, he was entitled only against the vacancy of HSA (Physical Science) which arose during the academic year 2006-2007 only upon issuance of staff fixation order namely, on 5.6.2006. Learned counsel would contend that this is a case where the amendment to Rule 51A makes it imperative that a claimant under Rule 51A should possess one year service. I feel that a claim which arose prior to the amendment being a claim on the basis of an appointment prior to the amendment, I would think that the fourth respondent would be entitled to invoke Rule 51A. I draw support in this view taken by the learned Judge in W.P.(C) No.19155 of 2005. The fourth respondent would contend that there is no need for shifting. The significance of the shifting lies also in the consequences of the shifting. Therefore, I reject the contentions of the petitioner. However, it is pointed out that the petitioner, who has been reverted subsequently on the basis of the fall in division by Ext.P8 order, is not being disbursed the pay as UPSA. Taking note of Ext.P8, a learned Single Judge of this court in I.A.16240 of 2007 has given direction to pay salary in the post of UPSA. WPC.8618/2007. 5 Subject to making the said observation, this writ petition stands dismissed. (K.M. JOSEPH, JUDGE) sb