IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 W.A.No. 2951 of 2007 ------------------------------------ AGAINST THE JUDGEMENT IN OP.13722/2002 Dated 07/09/2007 .................... APPELLANT/PETITIONER: ------------------ M.V.MOLEY, W/O.T.G.BABY, UPPER PRIMARY SCHOOL ASSISTANT, AI-MUBARAK U.P.SCHOOL, PALLIPURAM, MUDICKAL, PERUMBAVOOR. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.R.SADEESAN RESPONDENT(S): RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE ASSISTANT EDUCATIONAL OFFICER, PERUMBAVOOR, ERNAKULAM. 4. THE MANAGER, AI-MUBARAK U.P.SCHOOL, PALLIPURAM, MUDICKAL, PERUMBAVOOR, ERNAKULAM. R1 TO R3 BY GOVERNMENT PLEADER SMT. R. BINDU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S. GOPINATHAN, JJ. ------------------------------ W.A. No.2951 of 2007 ------------------------------ Dated this, the 25th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. She was working as Upper Primary School Assistant in the fourth respondent's school. She has continuous service from 12.10.1999. It is submitted that, she had three earlier spells of approved service. Apart from that, there were two earlier spells of unapproved service also. They are from 4.11.1996 to 31.3.1997 and from 30.7.1997 to 11.10.1999. The motion for approval of them stood rejected as per Exts.P1 to P3 orders. So, the writ petition was filed challenging those orders and seeking a mandamus to the third respondent to approve her service from 4.11.1996 to 31.3.1997 and from 30.7.1997 to 11.10.1999. The learned Single Judge noticed that the reason for rejecting the above W.A.No.2951 of 2007 - 2 - mentioned two spells of unapproved service was for want of vacancy and accordingly, dismissed the Writ Petition. Aggrieved, the appellant has filed this writ appeal. 2. It is admitted that the appellant is the nineth Upper Primary School Assistant. The staff fixation order for the year 1996-97 is produced as Annexure A. The same would show that, there were nine class divisions for the U.P.School. Therefore, there will be eight posts of Upper Primary School Assistants, by virtue of Rule 5(ii) of Chapter XXIII of Kerala Education Rules. A junior graduate Hindi teacher was working as Headmistress, but, her appointment was never approved and therefore, the Department treated the post of Headmaster vacant throughout. So, there were eight Upper Primary School Assistants, according to them. Finally, only on 12.10.1999, one Upper Primary School Assistant was regularly promoted as Headmaster and as a result, one vacancy arose in the eight sanctioned posts of Upper Primary School Assistants. Thereafter, the petitioner's appointment was approved on a W.A.No.2951 of 2007 - 3 - regular basis. 3. Going by the above facts, we agree with the official respondents that there was no vacancy in the eight sanctioned posts of Upper Primary School Assistants to accommodate the petitioner during the aforementioned two spells of unapproved service. The learned Single Judge has rightly declined to interfere with the impugned orders. In the result, the writ appeal fails and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy)