IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 35993 of 2008(I) ------------------------------------- PETITIONER(S): ------------------------- 1. K.J. JESSY, W/O.K.M. ANTO, AGED 39 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, SREE NARAYANA GIRLS HIGH SCHOOL, KANIMANGALAM,THRISSUR DISTRICT. 2. M.V. SHINY, W/O. T.A. DAVIS, AGED 38 YEARS, UPPER PRIMARY ASSISTANT, SREE NARAYANA GIRLS HIGH SCHOOL, KANIMANGALAM,THRISSUR DISTRICT. BY ADVS.MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION, DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM -14. 3. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. 4. THE MANAGER, SREE RAMANANDA SCHOOL COMMITTEE, KOORKANCHERRY, THRISSUR -27. 5. SMT. K.R. RAJI, UPPER PRIMARY SCHOOL ASSISTANT, SREE NARAYANA BOYS HIGH SCHOOL, KANIMANGALAM, THRISSUR DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT.M.R.SREELATHA R4 BY ADVS. MR.MILLU DANDAPANI R5 BY MR.A.D.RAVINDRA PRASAD SRI.K.PADMANABHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25993/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER OF THE IST PETITIONER DT. 12.6.06. P2:- COPY OF THE DO. 2ND PETITIONER DT. 12.6.06. P3:- COPY OF THE REVISION PETITION FILED BEFORE THE GOVT. BY THE MANAGER DTD. 22.10.07. P4:- COPY OF THE DO. DO. DTD. 22.7.07. P5:- COPY OF THE G.O.(P) 275/1999/G.EDN. OF THE GOVERNMENT DTD. 9.11.99. P6:- COPY OF THE ORDER NO.B5-5197/07/K.DIS. OF THE DIST. EDL. OFFICER DT. 11.1.08. P7:- COPY OF THE REVISION PETITION FILED BEFORE THE 2ND RESPONDENT (IST PET.) DTD. 25.1.08. P8:- COPY OF THE REVISION PETITION FILED BEFORE THE 2ND RESPONDENT ( 2ND PETITIONER) DTD. 25.1.08. P9:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP. 3523/2008 DTD. 14.2.08. P10:- COPY OF THE ORDER NO.EM1-9869/08/DPI/K.DIS. OF THE DIRECTOR DTD. 22.4.08. P11:- COPY OF THE NOTICE NO.34001/B2/08/GE OF THE GOVERNMENT DTD. 26.7.08. P12:- COPY OF THE G.O.(RT) 4877/08/G.EDN. OF THE GOVERNMENT DTD. 4.11.08. P13:- COPY OF THE DECISION REPORTED IN 2005(3) K.L.T. 502 DTD. 4.2.05. P14:- COPY OF THE DECISION REPORTED IN 2006 (4) K.L.T. S.N. 63(C.NO.85) 4.6.07. P15:- COPY OF THE ORDER NO.B4/4947/08 /K.DIS OF THE DIST. EDL. OFFICER DTD. 26.8.08. RESPONDENT'S EXHIBITS R5(a):- COPY OF THE LETTER NO.B5-2250/09 DTD. 1.4.09 ISSUED BY 3RD RESPONDENT DISTRICT EDUCATIONAL OFFICER. R5(b):- COPY OF THE ORDER NO.G.O. (RT) NO.4877/08/G.EDN. DTD. 4.11.08 ISSUED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION B DEPARTMENT , TRIVANDRUM. R5(c):- COPY OF THE REPRESENTATION DTD. 9.6.09 SUBMITTED BY THE PETITIONER RESPONDENT NO.5) TO THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.35993/2008-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of December, 2009 J U D G M E N T The petitioners herein have been appointed as Upper Primary School Assistants by the fourth respondent-Manager from 12/06/2006 onwards as per Exts.P1 and P2. The approval to Exts.P1 to P2 was declined by the Educational Officer on the ground that there is ban order from the Government in filling up the vacancies of teaching posts in Aided Schools. Even though appeals have been filed before the Deputy Director and the Director, the orders of rejection were confirmed. But, the petitioners are still working in the school. 2. In April and May 2007, 4 High School Assistants under the Management retired from service. In June 2007, 4 Upper Primary School Assistants were promoted as High School Assistants. One post of Upper Primary School Assistant was reduced in 2007-08. Thus, there arose three U.P.S.A regular and permanent posts, under the Management but the petitioners were not appointed recognising their claim under Rule 51A of Chapter XIV A of Kerala Education Rules. It is contended that going by Ext.P5 Government Order, the service of a leave substitute is liable to be W.P.(C). No.35993/2008 -:2:- regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. 3. Ext.P6 is the order whereby appointment of the fifth respondent has been approved. The petitioners filed statutory revisions before the Director of Public Instruction as per Exts.P7 and P8 which was ultimately allowed as per Ext.P10. But, the same has been set aside by the Government in Ext.P12 which is under challenge in this writ petition. 4. Heard the learned counsel for the petitioners Shri V.A.Muhammed, the learned Senior Counsel Shri K.P.Dhandapani for the Manager and Shri K.Padmanabhan learned counsel appearing for the fifth respondent. 5. The learned counsel for the petitioners relied upon Ext.P5 Government Order as well as the decisions of this Court in Exts.P13 and P14 and a recent decision of a Division Bench of this Court in Geetha S. v. Geo Thomas K. and Others [2009 (4) KHC 296 (DB)]. 6. In the counter affidavit filed on behalf of the second respondent, it is pointed out that consequent on the retirement of two High School Assistants and promotion of two High School Assistants as Headmasters during April and May 2007, there arose the vacancy of four High School W.P.(C). No.35993/2008 -:3:- Assistants. Four Upper Primary School Assistants were promoted as High School Assistants during 2007-08, one post of Upper Primary School Assistant was reduced. Thus, there arose the vacancy of three regular posts of Upper Primary School Assistants in the school. It is averred that the petitioners ought to have been shifted against the regular post but the Manager made appointment of three fresh hands. It is further pointed out that the petitioners did not have any previous approved service and hence, the appointment of the fresh hands were approved. 7. In the affidavit filed in support of I.A.No.13015/2009, by the fifth respondent, it is pointed out that the fifth respondent was being paid salary and the appointment of the said respondent has been approved already. 8. The crucial question, therefore, is whether in the absence of the approval of appointments of the petitioners, they are liable to be absorbed against permanent/regular vacancies. In this regard, the petitioners' contentions is supported by Ext.P5 Government Order wherein the Government clarified that the services of the leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. In Poornima v. Director of Public Instructions W.P.(C). No.35993/2008 -:4:- [2005 (3) KLT 502] it was held by this Court that for the purpose of applying Rule 51A of Chapter XIV A, what is relevant is the date of first appointment and not the date on which such appointment is approved. 9. The learned counsel for the petitioners is well founded in his submission in the light of the recent decision in Geetha's case [2009 (4) KHC 296 (DB)]. The question considered therein was similar i.e., the claim for appointment of a leave substitute in preference to fresh hand, in a permanent/regular vacancy. The matter was considered in detail in the light of the preference available under Rule 51 of Chapter XIV-A K.E.R. Paragraph (6) of the Judgment contains the following dictum:- “6. ............the Manager could have made the appointments/retrenchments only in accordance with Rule 51 of Chapter XIV-A of the K.E.R quoted above and Ext.R6(a) order mentioned above. The Manager could not take shelter behind the plea that when the regular vacancy arose, the appointment of the appellant in the maternity leave vacancy was not approved. The Manager knew that the appointment was in a maternity leave vacancy W.P.(C). No.35993/2008 -:5:- which arose in a post sanctioned as per the Staff Fixation Order of that year, that the appellant was qualified for appointment as U.P.S.A also and therefore, even if there is delay, the appellant's appointment was going to be approved. Therefore, when the regular vacancy arose, the appellant should have been accommodated in that vacancy and a fresh hand could have been appointed only in the remaining portion of the maternity leave vacancy, in which the appellant was working. As a matter of fact, as the remaining period of the said leave vacancy does not have a duration of two months, the first respondent could not have been appointed at all, as U.P.S.A, in view of Rule 7A(3) of Chapter XIV-A of the KER, which says that, the vacancies which have duration of two months or less period shall not be filled up by any appointment. The said two months period has since been amended with effect from 16/04/2005, but, when the appointment of the first respondent was made, the unamended rule was remaining in force. The legal W.P.(C). No.35993/2008 -:6:- position that the Manager cannot deny promotion or re-appointment for the reason that original appointment was not yet approved, is covered by the Division Bench decision of this Court in Joshi v. Krishna P. Rajan, 2006 (4) KLT SN 63 (Case No.85).” 10. Therefore, even if the original appointment was not approved, the Manager cannot deny any reappointment. 11. In fact, the Director of Public Instruction in Ext.P10 has correctly analysed the factual position and found that the teachers who were working as seniors have to be approved in preference to juniors. The said order was set aside by the Government by taking the view that the appointments of the petitioners were not approved by the Department. Ext.P12 is the copy of the said order. Therein, it was observed that since the petitioners did not have any approved service, they cannot claim the benefit of Rule 51A of Chapter XIV-A K.E.R. 12. In the light of the dictum laid down in Geetha's case (supra) [2009 (4) KHC 296 (DB)], Ext.P12 order passed by the Government cannot be supported at all. Therefore, Ext.P12 order is liable to be quashed on that ground itself. W.P.(C). No.35993/2008 -:7:- 13. The learned counsel for the fifth respondent submitted that even now there are four vacancies and therefore, without retrenching any of the teachers, the claim of the petitioners could be adjusted. 14. The learned counsel for the petitioners submitted that there are existing four vacancies in the school. 15.Even though the learned senior counsel for the Manager submitted that the said stand is not correct, in the light of the fact that the petitioners are liable to be adjusted against permanent vacancies, it is upto the District Educational Officer to reconsider the entire aspects with reference to the date of occurrence of vacancies, the number of vacancies existing, and re-arrangements should be made accordingly after recognising the rights of the petitioners for appointment in the regular vacancies. 16. Accordingly, the writ petition is allowed. Ext.P6 to the extent approval is granted is quashed and Ext.P12 is also quashed. There will be a direction to the fourth respondent Manager to produce the orders of appointments of the petitioners in the permanent vacancies which arose in April and May 2007 within a period of three weeks from the date of receipt of a copy of this Judgment, before the third respondent. The third respondent will accordingly re-arrange the position of seniority of the petitioners and W.P.(C). No.35993/2008 -:8:- the fifth respondent and any other teachers who have been appointed in a later vacancy, in the available vacancies and approval of their appointments will be granted accordingly. Depending upon the same, the petitioners and the fifth respondent will be disbursed their monetary benefits also without further delay. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms