IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 27270 of 2003(U) -------------------------- PETITIONER(S): --------------- V. RESHMI, U.P.S.A., A.G.R.M.H.S.S., VALLIKUNNAM, ALAPPUZHA DISTRICT. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.BINDU SREEKUMAR RESPONDENT(S): --------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, KERALA STATE, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 3. THE MANAGER, A.G.R.M.H.S.S., VALLIKUNNAM, ALAPPUZHA DISTRICT. 4. B. SURESH, H.S.A. (MATHS), A.G.R.M.H.S.S., VALLIKUNNAM, ALAPPUZHA DISTRICT. 5. P.K. SAJEENA, U.P.S.A., A.G.R.M.H.S.S., VALLIKUNNAM, ALAPPUZHA DISTRICT. ADV. SRI.B.RAGUNATHAN FOR R3 SRI.G.S.MOHANDAS FOR R3 SRI.V.V.MATHEW FOR R3 & 4 SRI.G.GOPALAKRISHNA PILLAI FOR R4 GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010 , THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: WPC.27270/2003 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE REPRESENTATION DT 11-9-2001 P2 COPY OF THE REPRESENTATION DT 10-7-2002 P3 COPY OF THE ORDER DT 27-5-2003 P4 COPY OF THE ORDER DT 19-01-2004 // True Copy // P.A. To Judge C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 27270 of 2003 U ``````````````````````````````````````````````````````` Dated this the 9th day of July, 2010 J U D G M E N T The petitioner was appointed as Upper Primary School Assistant in a regular vacancy in A.G.R.M.H.S.S., Vallikunnam on 24-08-1998. Prior to the said appointment, she had worked in the said school against a leave vacancy from 30-06-1998 to 05-08- 1998. The aforesaid appointments were approved by the competent education authorities. While so, a vacancy of H.S.A. (Mathematics) arose in the school on 24-08-2001 consequent to the availing of leave without allowance for five years by one Smt.Lathakumari. She had actually availed leave for five years from 24-08-2001. According to the petitioner, she was the rightful claimant under Rule 43 of Chapter XIV-A of the Kerala Education Rules to be appointed against the said vacancy. However, the third respondent appointed the fourth respondent against the said post of H.S.A. Aggrieved by the appointment of the fourth respondent, the petitioner submitted Ext.P1 representation before the second respondent requesting not to approve the appointment. However, no action was taken thereon. The fifth respondent WPC.27270/2003 : 2 : raised a claim for appointment against the aforesaid post and she had approached this Court by filing O.P.No.28869/2001, challenging the appointment of the fourth respondent as H.S.A. (Mathematics). The said original petition was disposed of along with certain other connected original petitions and W.A.No.621/2002 as per common judgment dated 20-09-2002. In terms of the aforesaid common judgment dated 20-09-2002, the second respondent passed Ext.P3 order dated 27-05-2003. It is the contention of the petitioner that as per Ext.P3, the second respondent has recognised the rightful claim of the petitioner. It was found therein that the petitioner is senior to the fifth respondent and, therefore, only in case, the petitioner relinquished her claim for promotion, the fifth respondent could claim for such promotion. In the meanwhile, the fourth respondent, who was actually appointed against the aforesaid vacancy, approached this Court by filing O.P.No.22510/2003. His contention therein was that his appointment against the vacancy that occurred on 24-08- 2001 was also approved and, therefore, he is entitled to get salary attached to the said post. The said original petition was disposed WPC.27270/2003 : 3 : of, on 15-07-2003, directing the second respondent to take action in the matter of disbursement of salary. Thereupon, the second respondent conducted a hearing in the matter on 16-08-2003. The petitioner has raised all his contentions before the second respondent and contended that the appointment of the fourth respondent ignoring his better claim was illegal and liable to be interfered with. According to the petitioner, though a hearing was conducted on 16-08-2003, no action was taken by the second respondent either to cancel the appointment of the fourth respondent and to promote the petitioner against the said post. It is in the said circumstances that the petitioner has approached this Court with a prayer to quash the order appointing the fourth respondent and its approval. The further prayer of the petitioner is that she should be declared as the rightful claimant entitled to get promotion under Rule 43 of Chapter XIV-A of the Kerala Education Rules as H.S.A.(Mathematics) in the vacancy that arose on 24-08- 2001 in the school. 2. A counter affidavit has been filed by the first respondent in this writ petition. The fact that a leave vacancy WPC.27270/2003 : 4 : occurred on 24-08-2001 in the category of H.S.A.(Mathematics) in the third respondent's school has been admitted thereunder. It is also stated therein that the fourth respondent, who was appointed against the aforesaid vacancy, was a fresh hand. A scanning of the statement in the counter affidavit would reveal that virtually the first respondent supports the contentions raised by the petitioner. Even according to the first respondent, the petitioner was the rightful claimant against the said post and it was overlooking the claim of the petitioner under Rule 43 of Chapter XIV-A of the Kerala Education Rules that the third respondent appointed a fresh hand, the fourth respondent, against the said vacancy. It is also stated thereunder that based on Ext.P1 representation submitted by the petitioner, the first respondent found the appointment of the fourth respondent as irregular and accordingly, the salary due to the fourth respondent was not paid. That apart, it is stated thereunder that the first respondent requested the second respondent to cancel the irregular appointment of the fourth respondent as per letter No.B4-8977/02 dated 24-07-2003. It is also admitted thereunder that in the light of the common WPC.27270/2003 : 5 : judgment in O.P.No.28869/2001 and W.A.No.621/2002 and connected cases, the second respondent considered the rival claims and issued Ext.P3 order, confirming the rightful claim of the petitioner for appointment to the post of H.S.A.(Mathematics) under Rule 43 of Chapter XIV-A of the Kerala Education Rules against the aforesaid vacancy. Further, it is stated thereunder that pursuant to the judgment in O.P. No.22510/2003 filed by the fourth respondent herein, the second respondent has conducted a hearing on 16-08-2003. After hearing the petitioner, the fourth respondent and others concerned, the second respondent found the petitioner as the rightful claimant for the aforesaid post and accordingly rejected the claim of the fourth respondent herein for salary. 3. Evidently, the fourth respondent is a fresh hand and the third respondent has appointed the fourth respondent against the leave vacancy that occurred on 24-08-2001. According to me, the action on the part of the second respondent in issuing Ext.P3 and finding the petitioner as the rightful claimant for appointment against the aforesaid vacancy is in tune with the relevant WPC.27270/2003 : 6 : provisions under the Kerala Education Rules. Being a fresh hand, the appointment of the fourth respondent against the vacancy that occurred on 24-08-2001 could not have been found legal. That apart, in compliance with the directions in O.P. No.22510/2003, the second respondent considered the request of the fourth respondent and rejected his claim for salary. In the case of the fifth respondent, evidently, as per Ext.P3, it was found that the petitioner is senior to the fifth respondent and, therefore, only in case the petitioner relinquished her claim for promotion, the fifth respondent could aspire for a promotion. In fact, as is obvious from the counter affidavit filed by the first respondent, the competent authorities found the petitioner as the rightful claimant against the said post and rightly rejected the claim of the others. 4. Despite the receipt of notice in this proceedings, respondents 4 and 5 did not choose to appear before this Court in the proceedings. The third respondent Manager did not file any counter affidavit in this writ petition. As noticed hereinbefore, the first respondent, who filed a counter affidavit, virtually supported the claim of the petitioner. It is stated thereunder that the second WPC.27270/2003 : 7 : respondent has found the petitioner as the rightful claimant for appointment against the said vacancy that occurred on 24-08- 2001. However, the prayer of the petitioner to quash the order appointing and approving the appointment of the fourth respondent cannot be considered for the simple reason that the said order was not produced before this Court. However, as already noticed, the fourth respondent did not choose to appear and defend the case despite receipt of notice in this writ petition. That apart, the authorities, based on decisions of this Court on earlier occasions, held the petitioner as the rightful claimant for the post of HSA(Mathematics) occurred on 24-08-2001 and rightly rejected the claims of respondents 4 and 5. 5. In the said circumstances, I am of the view that the petitioner is entitled to get the declaration sought for. Accordingly, it is declared that the petitioner was the rightful claimant entitled to get promotion under Rule 43 of Chapter XIV-A of the Kerala Education Rules as H.S.A.(Mathematics) in the leave vacancy that arose on 24-08-2001. Consequently, there will be a further direction to respondents 1 and 3 to cancel the appointment and WPC.27270/2003 : 8 : approval of appointment given to the fourth respondent as H.S.A. (Mathematics) against the aforesaid vacancy that arose on 24-08- 2001. The petitioner will be entitled to service benefits flowing out of this judgment. The writ petition is disposed of as above. Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. To Judge