IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WA.No. 2779 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.8220/2008 Dated 13/03/2009 .................... APPELLANT(S): / RESPONDENTS IN WP(C) -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT. BY GOVERNMENT PLEADER, MS.T.B.REMANI RESPONDENT(S): / PETITIONERS IN WP(C) --------------- 1. P.SASI, MANAGER, NS HIGH SCHOOL, VALOOR, CHERUVALOOR.P.O., (VIA) KORATTY, THRISSUR DISTRICT. 2. VASANTHAKUMARI N.N., HARINANDANAM, CHERUVALOOR.P.O, (VIA) KORATTY, THRISSUR DISTRICT. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R2 SMT.N.SANTHA FOR R2 SRI.PETER JOSE CHRISTO FOR R2 SRI.S.A.ANAND FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... Writ Appeal No.2779 of 2009 .................................................................... Dated this the 27th day of January, 2011. JUDGMENT Ramachandran Nair, J. Appeal is filed against judgment of the learned Single Judge directing approval of the second respondent's appointment and giving her arrears of pay. Even though delay was condoned, since appeal was filed with a delay of over six months, in between the judgment was implemented by the educational agency by approving the second respondent's appointment in first respondent's school. The case of the Government is that under Rule 6(viii) of Chapter V of the K.E.R. management is bound to fill up vacancy of teachers arising in the school with protected teachers in the District. In the first respondent- school there was a High School teacher by name V.V.Geetha who was a protected hand working in a Government School. When a vacancy arose in the L.P. School, the first respondent transferred a U.P. School teacher to the L.P. School and in the vacancy so arising, the second respondent was appointed. However, the Government's case is that W.A. No.2779/2009 2 vacancy arising on account of transfer in the U.P. School should have been filled up with the protected teacher, though she was working in the Government High School as High School Assistant. Even though we find force in the contention of the Government Pleader that when a protected teacher is available, the vacancy arising in the school should be filled up by such teacher, in this case we notice that the first respondent could have filled up the vacancy that arose in the L.P. School by making appointment of a teacher. Instead that vacancy was filled up by transfer from U.P. School and it is against that vacancy the second respondent was appointed. In any case the appointment of the second respondent is approved with effect from 18.8.2006 when the retrenched protected teacher was restored to school, which is on account of availability of sufficient number of vacancies to accommodate the second respondent and the protected teacher. Further, first respondent had appointed second respondent on 2.6.2003 and the dispute is only for the period 2.6.2003 to 18.8.2006. W.A. No.2779/2009 3 Admittedly the second respondent functioned in the school as a teacher and her appointment is also approved with effect from 18.8.2006. Pursuant to the judgment, the appointment of second respondent was approved with effect from 2.6.2003 and as of now it is only her claim for arrears of pay and allowance. This is opposed by the State contending that the approval should not have been granted by the educational authority when the Government proposed to file Writ Appeal, which it later filed after granting of approval by A.E.O. with a delay of over 200 days. In all these matters what we find is that the Governmental agencies are more at fault than the managements because appointments in aided schools are made without prior approval and long time is taken for approval. Further, there is no system for the Government to identify vacancies arising in aided schools on account of retirement and to order filling up of the same with retrenched or protected teachers. Admittedly the protected teacher worked in a Government school and the second respondent pending approval of her W.A. No.2779/2009 4 appointment worked in first respondent's school which is an aided school where payment of salary is made by the Government. We do not find any ground to deny salary to the second respondent for the period she worked. Consequently we dismiss the Writ Appeal. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms