IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 23212 of 2006(L) --------------------------------- PETITIONER(S): --------------- BINDU C.M., W/O.RAJEEVN, AGED 30 YEARS, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), MATTANNUR HIGHER SECONDARY SCHOOL, (RESIDING AT LAKSHMI NIVAS, KAYALOOR, CHAVASSERY, KANNUR DISTRICT). BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR, P.O.KANNUR. 3. THE DISTRICT EDUCATIONAL OFFICER, TELLICHERRY, P.O. TELLICHERRY, KANNUR DISTRICT. 4. THE MANAGER, MATTANNUR HIGHER SECONDARY SCHOOL, P.O.MATTANNUR, KANNUR DISTRICT. 5. THE HEADMISTRESS, MATTANNUR HIGHER SECONDARY SCHOOL, P.O.MATTANNUR , KANNUR DISTRICT. 6. SMT.R.BINDU, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES) MATTANNUR HIGHER SECONDARY SCHOOL, P.O. MATTANNUR, KANNUR DISTRICT. ADV. SRI.K.V.PAVITHRAN FOR R4 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R4 SRI. ANTONY MUKKATH - GOVERNMENT PLEADER FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23212 of 2006(L) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ORDER NO.K.DIS.B4-8569/2001 OF THE DIST.EDL. OFFICER. EXT.P2: COPY OF ORDER NO.B4/18766/02/K. DIS. OF THE DY.DIRECTOR OF EDUCATION. EXT.P3: COPY OF EXTRACT OF THE STAFF FIXATION ORDER 2002-2003. EXT.P4; COPY OF G.O.(MS)NO.148/98/G. EDN OF THE GOVERNMENT. EXT.P5: COPY OF ORDER NO.K. DIS. B4-8964/2002 OF THE DIST. EDL. OFFICER. EXT.P5(a): COPY OF COUNTER STATEMENT FILED IN COMPLAINT NO.2038/2004. EXT.P6: COPY OF APPOINTMENT ORDER. EXT.P6(a): COPY OF ORDER NO.9679/J2/99/G.EDN. OF THE GOVERNMENT. EXT.P7: COPY OF G.O.(P)NO.31/2006/GE OF THE GOVERNMENT. EXT.P8: COPY OF THE G.O.(RT)NO.254/01/G.EDN. OF THE GOVERNMENT. RESPONDENTS' EXHIBITS EXT.R4(a): COPY OF STAFF FIXATION ORDER OF THE YEAR 201-2002. EXT.R4(b): COPY OF FINAL REVISED STAFF FIXATION ORDER DTD 16.5.2005. EXT.R4(c): COPY OF APPOINTMENT ORDER DATED 13.7.2001. EXT.R4(d): COPY OF APPEAL DTD 17.3.2006. TRUE COPY PA TO JUDGE. acd S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.23212 of 2006 ---------------------------------------------- Dated this the 10th day of August, 2011 JUDGMENT The petitioner got approved service in the 4th respondent's aided school as a High School Assistant (Physical Science) for the period from 18.9.2000 to 30.10.2000. She thus became a Rule 51A claimant under Chapter XIVA of K.E.R. The petitioner was again reappointed for the following periods in temporary vacancies. 1. 1-8-2001 to 11-12-2001 extended to 21-12-2001 in the maternity leave vacancy of Smt. P.V. Sudha. 2. 1-1-2002 to 31-3-2003 in the leave vacancy of Sri.Mavila Pavithran. 3. 3-12-2002 to 31-3-2003 in the maternity leave vacancy of Nbr. Jaya Raveendran 4. 12-12-2005 to 31-3-2006 in the maternity leave vacancy of Smt. P.V. Sudha. The petitioner's grievance is that those appointments were not approved, although the petitioner was entitled to approval of appointment for those periods. It is under the above circumstances, this writ petition is filed seeking the following W.P.(C)No.23212/06 2 reliefs: “(a) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to implement Exhibit P-2 and grant approval to the appointment of the Petitioner and also the benefits therefrom. (b) direct the 1st Respondent to approve the pending spells of appointments of the Petitioner”. 2. Respondents 2 and 3 have filed counter affidavits opposing the prayers in the writ petition. The 4th respondent Manager has filed a counter affidavit supporting the petitioner's claim. 3. I have considered the rival contentions in detail. As far as the approval for the first two spells of appointment are concerned, in Ext.P2, the Deputy Director Education, Kannur has directed the District Educational Officer, Thalassery to take urgent steps to approve the appointment of the petitioner as HSA for the periods from 1.8.2001 to 11.12.2001 and from 1.1.2002 to 30.3.2002 as per rules. It has not been done. This Court had also passed an order dated 31.5.2007 directing the 2nd respondent to take appropriate action on Ext.P2 positively. Nobody is able to tell me as to whether that order has been complied with. In the counter affidavit, the stand taken is that for those periods, senior claimants were awaiting appointments and therefore, the petitioner could not have W.P.(C)No.23212/06 3 been appointed. The senior claimants are M/s. A.K. Bhagya Lakshmi and P.M. Maheswaran Namboodiri. The 4th respondent Manager has produced Ext.R4(c) appointment order wherein Smt. A.K. Bhagya Lakshmi was appointed with effect from 13.7.2001 in the vacancy of Sri. P.M. Maheswaran Namboodiri, who was transferred to Higher Secondary Section as HSST. The 4th respondent has stated that, that appointment was approved with effect from 16.7.2001 onwards. This is not controverted by respondents 2 and 3. That being so, the objection that there are senior claimants awaiting appointment cannot hold good. As such, the petitioner is entitled to approval of appointment for the period from 1.8.2001 to 11.12.2001 extended up to 21.12.2001 as also for the period from 1.1.2002 to 31.3.2002. The 3rd respondent DEO is directed to approve those two appointments and disburse arrears of salary due to the petitioner in respect of those periods, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 4. As far as the 4th spell is concerned, insofar as it is after the amendment of the KER, by G.O.(P)No.169/2004/GE W.P.(C)No.23212/06 4 dated 15.6.2004, any vacancy which is of a duration of less than one year can be filled up only on daily wages. The petitioner admits that the petitioner has been paid fully daily wages for that appointment. The petitioner's contention is that the petitioner is entitled to approval on full salary in view of Ext.P7 Government Order, whereby rule 51A claimants are exempted from the rigour of the amendment. But, from Ext.P7 itself it is clear that for giving effect to Ext.P7, necessary amendments have to be made to the KER. The petitioner has no case that the amendments have been made in the K.E.R in tune with Ext.P7 Government Order. That being so, the petitioner cannot claim benefit of Ext.P7 Government Order without the Government amending the rules. As such, the claim for approval on full salary for the period from 2.2.2005 to 31.3.206 is rejected. 5. As far as the 3rd spell, for the period from 3.12.2002 to 31.3.2003 is concerned, the petitioner has not produced any material before me to show that any authority has considered the claim of the petitioner for approval for appointment of that period. Of course, in Ext.P5(a) counter statement filed by the DEO before the Lok Ayukta in Complaint No.2038/2004, there W.P.(C)No.23212/06 5 is a reference to the claim for that period and that the same was rejected by order No.B4-13679/2002 dated 26.4.2003 for want of vacancy. The petitioner has not chosen to produce the same and challenge the same. As such I am not inclined to consider the claim of the petitioner for that period in this writ petition. It is open to the petitioner to seek appropriate remedies in respect of the same, if law permits so at this point of time. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.23212/06 6 W.P.(C)No.23212/06 7