IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 36397 of 2010(Y) -------------------------------- PETITIONER: -------------- K.P. BINDU, AGED 36 YEARS, W/O SURESHAN, NARAYANALAYAM, ANJARAKANDI.P.O, KANNUR DISTRICT, H.S.A (MALAYALAM), MAMBRAM HIGHER SECONDARY SCHOOL, KANNUR DISTRICT. BY ADVS. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENTS: ------------------ 1. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY - 670 101. 2. MANAGER, MAMBRAM HIGHER SECONDARY SCHOOL, MAMBRAM.P.O, KANNUR DISTRICT-670 741. BY ADV. SRI.P.M.PAREETH FOR R2 SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2011, ALONG WITH WPC Nos.23798 & 26762 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.36397/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF JUDGMENT IN O.P.13816/03 DTD.9.12.09. EXT. P2 : COPY OF JUDGMENT OF THIS COURT IN W.A.799/10 DTD. 2.6.10. EXT. P3 : COPY OF ORDER No.B1/44/10 DTD. 6.10.10. OF District Educational Officer. EXT. P4 : COPY OF PETITION SUBMITTED BEFORE HEADMASTER DTD. 10.11.10. EXT. P5 : COPY OF PETITION SUBMITTED BEFORE District Educational Officer DTD. 15.11.10. EXT. P6 : COPY OF ORDER No.K.DIS/B1/9984/10 DTD. 3.11.10 OF District Educational Officer. EXT. P7 : COPY OF GOVT. ORDER DTD. 19.10.02. 2ND RESPONDENT'S EXHIBITS: EXT. R2(a) : COPY OF RELEVANT PAGES OF STAFF FIXATION ORDER DTD. 12.8.10 FOR 2010-11 IN RESPECT OF MAMBRAM HIGHER SECONDARY SCHOOL. EXT. R2(b) : COPY OF MODIFIED ORDER DTD. 7.12.10. // True Copy // P.A. to Judge. smp T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)Nos.36397/2010-Y, 23798/2011-Y & 26762/11-U -------------------------------------------------- DATED THIS THE 23rd DAY OF NOVEMBER, 2011 JUDGMENT Even after the third round of litigation, the case of the petitioner for approval of appointment still remains to be solved. 2. The petitioner was appointed in the school as High School Assistant (Malayalam) on 24.8.2000. As per Exhibit P1 judgment produced in W.P.(C)No.36397/10, this Court after referring to the contentions of the Manager directed the District Educational Officer to approve the appointment of the petitioner in terms of Exhibit P2 Government Order passed by the Government. In fact the order Exhibit P2 referred to in Exhibit P1 judgment has been produced by the petitioner along with a reply affidavit as Exhibit P7 in W.P.(C)No.36397/10. The appeal filed against the said judgment was confirmed and the operative portion of the Division Bench judgment is extracted below: “........ ....... The District Educational Officer, Thalassery, shall approve the appointment forthwith. Since it is submitted that Smt.K.P.Bindu had not been working in the W.P.(C)Nos.36397/10, 23798 & 26762/11 -2- school since October, 2000, we find that her service benefits can be limited from the date of commencement of her continued service. But, it is made clear that for the purpose of lien, her appointment shall take effect from the date of Ext.P2. Writ Appeals are dismissed with the above clarification. No order as to costs.” 3. After the above judgments were rendered, the District Educational Officer passed Exhibit P3 order approving the appointment of the petitioner as High School Assistant (Malayalam) with effect from 24.8.2000. 4. It appears that the District Educational Officer later passed a fresh order as per Exhibit P6 without referring to the earlier order and the judgments of this Court, rejecting the approval. This was ordered by the District Educational Officer after the Manager produced an appointment order dated 18.10.2010. The same is under challenge in W.P.(C) No.36397/10. 5. Pending the said Writ Petition, the Government passed an order in a revision petition filed by the teacher which is under challenge in W.P.(C)No.23798/11. The said order is produced as W.P.(C)Nos.36397/10, 23798 & 26762/11 -3- Exhibit P4. The petitioner-teacher seeks implementation of the same in W.P.(C)No.23798/11. 6. Heard the learned counsel for the petitioner in W.P.(C) No.36397/10 and 23798/11, the learned counsel for the Manager, who is appearing for the petitioner in W.P.(C) No.26762/11 and the learned Government Pleader. 7. Before going into the further contentions in the matter, I will refer to the contentions with regard to the order passed by the Government as per Exhibit P7 produced in W.P.(C) No.26762/11. Therein the Government found that the petitioner is senior to one Shri Dineshkumar and the petitioner is a Rule 51A claimant also. The direction is issued to the District Educational Officer to approve the appointment of the petitioner Smt.K.P.Bindu as High School Assistant(Malayalam) with effect from 18.10.2010 in the school based on the staff fixation order for the year 2010-11, if she is otherwise eligible as per existing rules/orders. 8. The issue of granting a fresh approval arose before the District Educational Officer when the Manager was directed to W.P.(C)Nos.36397/10, 23798 & 26762/11 -4- submit a fresh proposal and there was an alleged refusal by the Headmaster to allow her to mark the attendance. The learned counsel for the Manager submitted that the staff fixation order for the year 2010-11 which is produced as Exhibit P10 will show that the three teachers working as High School Assistant (Malayalam) have been retrenched as they are not eligible for protection. They are: (1) Shri C.N.Rajesh who was appointed on 1.6.1999, (2) Shri K.P.Sasidharan who was appointed on 25.6.1999 and (3) Shri K.Dinesh Kumar who was appointed on 8.7.2003. In fact, the Government has also held that the petitioner will be senior to Shri Dineshkumar evidently because the petitioner's appointment was approved with effect from 24.8.2000. It is submitted that the first two teachers could get accommodation under the 1:40 ratio. It is also stated that another vacancy occurred due to the death of one Smt.Sathi High School Assistant (Malayalam)on 21.3.2011. It is therefore submitted that the continuance of the petitioner depends upon the staff fixation order and after considering the fact that the two seniors are directed to be retrenched as per Exhibit P10 staff fixation order. It is also W.P.(C)Nos.36397/10, 23798 & 26762/11 -5- pointed out that during the current year, due to fall of one division, proper assessment will have to be made again by invoking 1:40 ratio. It is therefore submitted that the order passed by the Government can be implemented only in terms of the staff fixation order and in tune with the rights of the senior teachers. 9. Evidently, there cannot be any quarrel that the petitioner's right for continuance will depend upon the fate of the seniors who were appointed earlier than the petitioner. The Government has already found in Exhibit P7 that the petitioner will obtain seniority as against Mr.Dineshkumar. The approval of appointment of the petitioner as per Exhibit P3 produced in W.P. (C)No.36397/10 is with effect from 24.8.2000. The petitioner had approached this Court by filing a Contempt of Court Case seeking implementation of the judgments Exhibits P1 and P2. The affidavit filed by the District Educational Officer in the Contempt of Court Case, COC.440/10 has been re-produced in paragraph No.3 of W.P.(C)No.36397/10, wherein it is stated that the District Educational Officer was waiting for the Manager to re- W.P.(C)Nos.36397/10, 23798 & 26762/11 -6- submit the appointment order. Evidently, there was an appointment order as far as the petitioner is concerned as the petitioner was appointed on 24.8.2000. Therefore, insistence of another fresh appointment order, if any, was actually unnecessary and the same has created confusion with regard to the fresh approval, etc. leading to issuance of Exhibit P6 order by the District Educational Officer, which is contrary to the directions in the judgments as well as the rights declared of the petitioner therein. Therefore, what remains for consideration is to pass a fresh order as directed by the Government in Exhibit P7 order produced in W.P.(C)No.26762/11 in terms of the staff fixation order and after considering the claims of various parties. 10. In that view of the matter, the Writ Petitions are disposed of with the following directions: (i) The challenge against Exhibit P7 produced in W.P.(C)No. 26762/11 fails and the matter will be governed by the following directions. (ii) The District Educational Officer will pass a fresh order with regard to the entitlement of the W.P.(C)Nos.36397/10, 23798 & 26762/11 -7- petitioner for continuance in the school as directed by the Government in Exhibit P7 order produced in W.P.(C)No.26762/11 and after assessing the number of High School Assistant (Malayalam) posts sanctioned in various staff fixation orders and after considering the details of appointees including the senior teachers, namely Shri C.N.Rajesh and Shri K.P.Sasidharan, who have been retrenched and are continuing on the basis of 1:40 ratio. (iii) The case of the petitioner that she is senior to Shri Dineshkumar, evidently because her appointment was approved on 24.8.2000 and that of Shri K.Dineshkumar was on 8.7.2003, will also be noted. 11. In the light of the above directions, Exhibit P6 produced in W.P.(C)No.36397/10 is quashed. Appropriate orders will be passed by the District Educational W.P.(C)Nos.36397/10, 23798 & 26762/11 -8- Officer after hearing all the necessary parties within a period of two months from the date of receipt of a copy of this judgment. No costs. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn