IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WA.No. 1262 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.25942/2005 DT.22.6.2006. .................... APPELLANT(S): 3D RESPONDENT --------------------------- BIJITH P., PARAMBATH HOUSE, POST KURINHALIYOD, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): PETITIONER AND RESPONDENTS 1, 2 AND 4 ----------------------------------------------------- 1. K.P.SAVITHA, ASSISTANT TEACHER, VAIKKILASSERY U.P.SCHOOL, P.O.VAIKKILASSERY, KOZHIKODE DISTRICT. 2. THE ASSISTANT EDUCATIONAL OFFICER, CHOMBALA, KOZHIKODE DISTRICT. 3. THE DISTRICT EDUCATIONAL OFFICER, VATAKARA, KOZHIKODE DISTRICT. 4. THE MANAGER, VAIKKILASSERY U.P.SCHOOL, P.O.VAIKKILASSERY, KOZHIKODE DISTRICT. GOVERNMENT PLEADER SRI.NOBLE MATHEW – R2 & R3 SRI.R.VINOD FOR R4 SRI.POOVAMULLE PARAMBIL ABDULKAREEM FOR R1 SRI.M.VIJAYAKUMAR. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/ 02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- W.A. NO.1262 OF 2007 ----------------------------------------- Dated 5th February, 2009. JUDGMENT Balakrishnan Nair, J. The 3rd respondent in the writ petition is the appellant. The 1st respondent was the writ petitioner. 2. The brief facts of the case are the following. The 1st respondent was appointed as U.P.S.A in the 4th respondent's school from 18.9.2003 to 20.11.2003. The said appointment was approved on 2.2.2005 and salary was paid to her. While so, a vacancy arose in the post of U.P.S.A with effect from 2.6.2004. The 1st respondent was appointed in that vacancy on 2.6.2004. The appellant herein was a Rule 51B claimant awaiting appointment to the said post. His qualification was B.Com and B.Ed. The B.Ed. Certificate was issued to him on 5.6.2004. Immediately, he moved the Manager and the Educational Officers. Taking note of the said claim of the appellant, approval for appointment of the 1st respondent from 2.6.2004 was rejected by the A.E.O., as per Ext.P2 order dated 25.10.2004. The WA 1262/2007 2 A.E.O also directed the Manager by Ext.P3 communication dated 25.10.2004, to appoint the appellant as U.P.S.A. Against Ext.P2 order, the Manager filed Ext.P4 appeal before the D.E.O. The said appeal was dismissed by Ext.P6 order dated 3.8.2005. Challenging Exts.P2, P3 and P6, the 1st respondent herein filed the writ petition. The learned Single Judge found that the date of occurrence of the vacancy is 2.6.2004 and on that date the appellant was not qualified. So, in the absence of a qualified claimant, even if the appointment of the 1st respondent/writ petitioner was treated as an appointment from the open market, it can be sustained. Taking the above view, the writ petition was allowed and the impugned orders were quashed. 3. The aggrieved appellant preferred this appeal, mainly, canvassing that the date of issuance of the certificate cannot be treated as the date of qualification. So, the appointment of an open market candidate when there was a Rule 51B claimant, is illegal. On 2.6.2004, the Manager should have offered appointment to the appellant and he would have produced the necessary certificates to prove his credentials by the time he joined duty, it is submitted. 4. The learned counsel for the 1st respondent submitted that since the 1st respondent was appointed by the Manager, he was duty bound to re- appoint her when a vacancy arose on 2.6.2004. In support of that WA 1262/2007 3 submission, the learned counsel relied on the decision of the Division Bench of this Court in Joshi v. Krishna P.Rajan [2006(4) KLT SN 63 (C.No.85)]. The relevant portion of the said judgment reads as follows: “When a manager had appointed legally an incumbent to a temporary or short term vacancy and if he has to make another appointment in a vacancy of the same post that had arisen later in his school, necessarily, he has to go by his own commitment and actions. He cannot deny either promotion or reappointment to an incumbent earlier appointed by him, contending that order approving that appointment made by him had not been passed by the time next vacancy had arisen. It will take some time for the Departmental authorities to pass orders. In a vacancy that had arisen subsequently, the Manager had the liability to protect the real rightful claimant.” The learned counsel also submitted that since the 1st respondent's appointment was approved by the Educational Officer on 2.2.2005, the same will take effect from the date of original appointment and therefore, notionally, on the date of occurrence of the vacancy, she is a Rule 51A claimant. She was, therefore, rightly appointed. 5. As rightly held by the Division Bench in the above quoted decision, always there will be some delay in approving fresh appointments. The Manager very well knew that the appointment of the 1st respondent/writ petitioner was going to be approved. Therefore, he was duty bound to re- appoint her when a vacancy arose on 2.6.2004. Even assuming on 2.6.2004 the appellant was qualified and he was appointed in that vacancy, we feel WA 1262/2007 4 that he was liable to be retrenched to accommodate the 1st respondent on her initial appointment being approved. The claim under Rule 51A will prevail over a claim under Rule 51B of Chapter XIV-A of the K.E.R. In any view of the matter, the 1st respondent has a superior claim. Therefore, we find no reason to interfere with the judgment under appeal. Accordingly, the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE. K.SURENDRA MOHAN, JUDGE. nm/