IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WA.No. 919 of 2009 -------------------- AGAINST THE JUDGEMENT IN WPC.919/2009 Dated 05/03/2009 .................... APPELLANT: PETITIONER ------------------------ NISHA G.KIZHAKKEDATH, W/O.JOJO GEORGE, VELUTHAMANNUNKAL, KATTUKODE, VADAKKANCHERY P.O., NOW WORKING AS H.S.A. PHYSICAL SCIENCE, AT C.A. H.S., AYAKKAD, PALAKKAD. BY ADV. SRI.BENOY THOMAS RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEO, PALAKKAD. 4. MANAGER, C.A.HIGH SCHOOL, AYAKKAD, PALAKKAD. 5. S.SREEJA, WORKING AS HSA(PHYSICAL SCIENCE), C.A. H.S., AYAKKAD, PALAKKAD. BY GOVT. PLEADER SMT.R.BINDU FOR R1 TO R3 BY ADV.SRI.GEORGE ABRAHAM FOR R4 BY ADV.SRI.ELVIN PETER FOR R5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, ALONG WITH W.A.NO.2870/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.Nos.919 & 2870/2009 ------------------------------ Dated this, the 17th day of December, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No.919/2009: The appellant and the 5th respondent were appointed as High School Assistants (Physical Science) in C.A. High School, Ayakkad, Palakkad District by the Manager, the 4th respondent. The 5th respondent was appointed in the first vacancy in the school with effect from 5.6.2006. Having regard to the students' strength, the Manager anticipated the sanction of an additional vacancy and appointed the 5th respondent, since the rules permit appointment from the first day of the academic year to an anticipated vacancy, which may be sanctioned with effect from July 15th of that academic year. Later, a regular vacancy arose in the cadre of High School Assistant with effect from 1.6.2007, as a result of retirement of an incumbent on 30.5.2007. The Manager shifted the appointment of the 5th respondent to that vacancy and the appellant was appointed on 1.6.2007 in the anticipated vacancy from which the 5th WA Nos.919 & 2870/2009 - 2 - respondent was shifted. Both the appointments remained unapproved. While so, the Director of Public Instruction (for short “D.P.I.”) considering the revision filed by the 5th respondent, ordered to approve her appointment with effect from 1.6.2007 by Ext.P2 order dated 9.12.2008. Challenging that order the appellant herein filed the Writ Petition. The learned Single Judge repelled the challenge against Ext.P2, but issued the following directions in her favour. “In the result, the writ petition fails and is dismissed with the observation that if and when the ban on appointments during the academic year 2006- 2007 is lifted by the Government, the Director of Public Instruction shall suo motu review Ext.P2 and direct approval of fifth respondent in the new vacancy that arose during the academic year 2006-2007 and also direct that if otherwise eligible, the petitioner shall be accommodated in the vacancy that arose on 1.6.2007. It will be open to the petitioner also to bring these facts to the notice of the Director of Public Instruction as and when the ban of appointments is lifted.” Dissatisfied with the judgment, this Writ Appeal is filed. 2. The learned counsel for the appellant submitted that the appointment of the appellant should have been approved in preference to that of the 5th respondent. The said claim is WA Nos.919 & 2870/2009 - 3 - plainly untenable. The Manager made two appointments, one on 5.6.2006 and the other on 1.6.2007. If a regular vacancy arose, the incumbent appointed first should be accommodated against that vacancy. That was done in this case rightly by the D.P.I. 3. Secondly, the learned counsel submitted that the appellant being an affected teacher, she should have been heard before Ext.P2 order was passed. The said contention was raised before the learned Single Judge. The learned Single Judge took the view that since the appellant does not have an arguable case, remand of the matter is a futile exercise. We are in full agreement with the view taken by the learned Single Judge on that point. We may further add that the appellant does not have any legal right to claim appointment to the post in which the 5th respondent was appointed. Though she is affected by Ext.P2, the said order does not affect any of her legal rights or legally protected interest. The principles concerning “dependent orders” will come into play in this case. So, in any view of the matter, Ext.P2 cannot be interfered with, for the reason that WA Nos.919 & 2870/2009 - 4 - the appellant was not heard. In the result, the Writ Appeal fails and it is dismissed. 4. W.A.No.2870/2009: In view of the judgment in W.A.No.919/2009, this Writ Appeal is also dismissed. K. Balakrishnan Nair, Judge. P. Bhavadasan, Judge. nm.