IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WP(C).No. 29262 of 2004(H) --------------------------------------- PETITIONER(S): ----------------------- S.SOBHITHLAL, AGED 31 YEARS, HIGH SCHOOL ASSISTANT, ARAVUKAD HIGHER SECONDARY SCHOOL, PUNNAPRA -4, ALAPPUZHA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.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. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. 5. THE MANAGER, ARAVUKAD HIGHER SECONDARY SCHOOL, PUNNAPRA -4, ALAPPUZHA DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 29262/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE MANAGER DTD. 18.6.02. P2:- COPY OF THE ORDER NO.B2/3625/O1/L. DIS. OF THE 4TH RESPONDENT DTD. 29.11.2002. P3:- COPY OF THE ORDER NO.B2-15896/02/L.DIS. OF THE 3RD RESPONDENT DTD. 3.7.2003. P4:- COPY OF THE ORDER NO.548/03/ET2/DPI/D.DIS. OF THE 2ND RESPONDENT DT.18.7.2003. P5:- COPY OF THE ORDER NO.32371/A2/2004/G1.EDN. OF THE GOVERNMENT DTD. 24.7.04. P6:- COPY OF THE CIRUCLAR NO.23323/J1/89/G.EDN. OF THE GOVERNMENT DTD. 6.112.1989. P7:- COPY OF THE APPOINTMENT ORDER DT. 4.8.2000. P8:- COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF DTD. 26.6.1998/20.01.1999. P9:- COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF DTD. 13.02.1999/25/09/1990. P10:- COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF DTD. 1.8.2001/25.12.2001. P11:- COPY OF THE ORDER OF APPOINTMENT AND THE APPROVAL THEREOF DTD. 24.10.2001/30.04.2003. P12:- COPY OF THE STAFF FIXATION ORDER 2000-2001. DTD. 20.4.2002. P13:- COPY OF THE DECISION REPORTED IN 1993(2)KLT SN 27 . DTD. 2.8.1993. P14:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P. (C) NO.15138/2004 DTD. 18.8.2004. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29262 of 2004-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of February, 2011. JUDGMENT The main prayer in the writ petition is to declare that Ext.P1 order passed by the Manager adjusting the petitioner as HSA (Physical Science) from 4.8.2000 to 31.7.2001 against the leave vacancy of Shri Jayachandran Pillai is legal and valid. Accordingly, it is prayed that the fourth respondent may be directed to approve the appointment of the petitioner for the above period. 2. The short facts leading to the dispute are the following: The petitioner is working as H.S.A. in the school managed by the fifth respondent. One Jayachandran Pillai was on leave from 1.11.1996 to 31.10.2001. The petitioner was appointed in the leave vacancy and initially the District Educational Officer as per order dated 20.1.1999 approved the appointment of the petitioner for the period from 26.6.1998 to 12.2.1999, as evident from Ext.P8 order. By a subsequent order dated 25.9.1999, his appointment for the period from 13.2.1999 to 14.2.2001 was approved, which is evident from Ext.P9 order, in the leave vacancy of Shri Jayachandran Pillai. wpc 29262/2004 2 3. In the meanwhile, one Smt. M.L. Leela who was on leave without allowance requested to cancel the leave from 4.8.2000 to 14.2.2001. This resulted in one Jayasree being adjusted against the leave vacancy of Shri Jayachandran Pillai from 4.8.2000 to 31.7.2001 terminating the service of the petitioner. But he continued his service at that point of time. As per order dated 26.12.2001, the appointment of Smt. Jayasree was approved in a retirement vacancy of one Shri Mohandas from 1.8.2001. Thereafter, by order dated 25.9.1999 the District Educational Officer approved the appointment of the petitioner as H.S.A. (P.S) in the remaining period of the leave vacancy of Shri Jayachandran Pillai. This is evident from Ext.P10 order. Again, the petitioner was appointed in an additional division vacancy sanctioned as per the staff fixation order. 4. When the staff fixation orders during the academic year 2000-2001 and 2001-2002 were revised, a vacancy of H.S.A. (P.S.) arose from 15.7.2000. No fresh appointment was made by the Manager. Therefore, the Manager passed Ext.P1 order by which Smt. Jayasree was proposed to be adjusted from 15.7.2000 against the additional division vacancy of H.S.A. (PS) and the petitioner was adjusted from 4.8.2000 against the retirement of Shri Mohandas. The said approval was rejected as per Ext.P2 order stating that retrospective appointment is not permissible. Even though an appeal wpc 29262/2004 3 was filed, that was dismissed as per Ext.P3 and the further appeal was also dismissed as per Ext.P4. The revision filed before the Government also resulted in Ext.P5 order. This is under challenge in this writ petition. 5. It is the case of the petitioner that the view taken that there is a retrospective appointment, is not correct. The situation herein arose because there was delay in revision of staff fixation. But actually an appointment was made and approval also was granted. What is sought for is the adjustment between the vacancies, as the petitioner was continuing. 6. In the counter affidavit filed on behalf of the first respondent, the orders passed by the authorities have been explained. From para 4 of the counter affidavit, it can be seen that the petitioner was allowed to continue in the school of the fifth respondent from 1.8.2001 onwards. The creation of an additional post from 15.7.2000 is also evident from the said para. It is also stated that the fifth respondent lifted the lien of Smt. Jayasree to the additional post with effect from 15.7.2000 and hence there is a leave vacancy to provide the petitioner from 4.8.2000 to 31.7.2001 as he is continuing in the school. The objection taken is that Ext.P1 order appointing the petitioner from 4.8.2000 and 1.8.2001 was issued only on 18.6.2002. Thus, it is contended that though there is a vacancy to provide the petitioner from 4.8.2000 to 31.7.2001, the appointment order is issued wpc 29262/2004 4 belatedly. 7. Learned counsel for the petitioner Shri Hamza submitted that Ext.P1 order is passed by the Manager in the light of the various circumstances pointed out above and in the light of the revision of the staff fixation orders. It is evident from Ext.P1 order that the revised staff fixation order was issued on 20.4.2002. The petitioner has produced the same as Ext.P12 along with I.A. No.1595/2011. Evidently, going by the staff fixation order, there is a vacancy of H.S.A. (PS) from 15.7.2000 and no one was appointed in that vacancy also. 8. In such circumstances, the Manager took up the matter before the District Educational Officer as per Ext.P1, for adjusting Smt. Jayasree, H.S.A. (P.S.) from 15.7.2000 against the additional vacancy of H.S.A. (PS) and the petitioner against the leave vacancy of Shri Jayachandran Pillai from 4.8.2000 to 31.7.2001 and thereafter from 1.8.2001 against the retirement vacancy of Shri Mohandas who retired from service on 31.5.2001. Nobody will be affected also. 9. The petitioner was earlier granted approval for appointment from 26.6.1998 to 12.2.1999 as per Ext.P8, from 13.2.1999 to 14.2.2001 as per Ext.P10 and from 1.11.2001 on wards as per Ext.P11 order. It is a case where the petitioner has actually worked for the above period also. wpc 29262/2004 5 10. Strictly therefore it is not a case where the appointment is delayed in any sense. Evidently, Ext.P1 order was passed immediately after the revised staff fixation order was received from the District Educational Officer. The revision of staff fixation order was ordered by the District Educational Officer on 20.4.2002. It evidences the fact that the school was entitled for a fresh additional division vacancy which is a regular vacancy to adjust the senior claimant Smt. Jayasree, H.S.A. (PS). 11. Therefore, what is sought for in Ext.P1 is approval for the adjustments, i.e. Smt. Jayasree has to be adjusted against the additional division vacancy which arose from 15.7.2000 and the petitioner has to be adjusted in the leave vacancy of Shri Jayachandran Pillai from 4.8.2000 to 31.7.2001. Part of the period of appointment of the petitioner upto 14.2.2001 was already approved as per Ext.P9 order also. This aspect also is to be considered while appreciating the arguments raised by the learned counsel for the petitioner. 12. In the light of the above factual position, it is not a case where the appointment as such is delayed. What is sought to be made is the shifting of the senior to a regular post and the petitioner to the leave vacancy which fact is clear from para 9 of the counter affidavit. For all these reasons, I find that the reasons stated not to accept the wpc 29262/2004 6 adjustments are not sustainable. Therefore, the writ petition is allowed. Exts.P2 to P5 are quashed. Ext.P1 order will be treated as legal and valid and there will be a direction to the fourth respondent to approve the appointment of the petitioner as H.S.A. (P.S.) from 4.8.2000 to 31.7.2001 and grant the consequential monetary benefits to him within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/