IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 27656 of 2010(F) -------------------------- PETITIONER(S): --------------- SUSAN KURUVILA,W/O.REV.JACOB K.IDICULA, KUZHIPARAMBIL HOUSE,KOZHUVALLOOR.P.O,CHENGANNUR, ALAPPUZHA (UPPER PRIMARY SCHOOL ASSISTANT, CMS HIGHER SECONDARY SCHOOL,KUZHIKKALA). BY ADV. SRI.S.SUBHASH CHAND SRI.T.NIKLAVU RESPONDENT(S): --------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM,PIN-695001. 2. THE DEPUTY DIRECTOR (EDUCATION),OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), KOTTAYAM,PIN-686 001. 3. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCTIONAL OFFICER, KOTTAYAM,PIN-686001. 4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA,PIN-689 645. 5. ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, CHANGANACHERRY,PIN-686 101. 6. THE CORPORATE MANAGER,CMS SCHOOLS, CSI DIOCESE OF MADHYA KERALA,KOTTAYAM, PIN-686 001. 7. JOHNSON K.A,KALATHRA HOUSE, THRIKOTHAMANGALAM.P.O,KOTTAYAM(LPSA,CMS LP SCHOOL, PALLOM).PIN-686 011. 8. ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KOTTAYAM EAST,PIN-686 001. BY G.P.SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ W.P.(C).No.27656 OF 2010 ------------------------------ Dated this the 19 th day of October, 2010 JUDGMENT The petitioner was working as Upper Primary School Assistant in CMS Higher Secondary School,Kuzhikkala, an aided school managed by 6 th respondent. The petitioner was appointed with effect from 1.6.2010 in a regular vacancy. It is also stated that she was appointed earlier as LPSA in a leave vacancy in CMS LP School, Nedumpuram, under the same educational agency for the period from 19.6.2006 to 5.9.2008 and that appointment was approved. Thus, the petitioner claims a preferential claim for appointment under Rule 51A of Chapter XIV A Kerala Education Rules. 2. It is stated that Johnson K.A.(respondent No.7) also commenced his aided school service with effect from 19.6.2006 to 4.6.2008. Thus, it is seen that the petitioner as well as respondent No.7 W.P.(C).No.27656 OF 2010 2 commenced service on the same day, namely, 19.6.2006. It is contended that as per Note 1 to Rule 51A of Chapter XIV A Kerala Education Rules, the petitioner has preferential claim over the claim of 7 th respondent, the petitioner being older in age. Recognizing his claim, the Corporate Manager appointed the petitioner in a leave vacancy as LPSA in CMS LP School, Pallom, for the period from 10.6.2008 to 4.6.2011 and that appointment was approved by the Educational Officer as per Ext.P2. It is submitted that in view of the approval as evidenced by Ext.P2, the petitioner is entitled to continue as LPSA up to 4.6.2011. 3. The grievance of the petitioner is that while she was working as LPSA, in CMS LP School, Pallom, she was shifted by the Manager to a retirement vacancy in CMS LP School, Kurumpanadam on daily wage basis from 1.6.2009 to 31.3.2010, as per Ext.P3 order. CMS LP School, Kurumpanadam is an uneconomic school and as per Exts.P4 and P5 Government Orders, appointment could not be made in W.P.(C).No.27656 OF 2010 3 such a school except by deploying protected teacher. It is contended that the Manager did so, only to favour respondent No.7. Respondent No.7 was appointed by the Manager in the place of the petitioner in CMS LP School, Pallom with effect from 1.6.2009 to 4.6.2011, as per Ext.P6 order. The petitioner approached the Manager and submitted her grievance. The petitioner also submitted Ext.P7 representation dated 26.3.2010, to the Assistant Educational Officer, Kottayam east. Thereafter, the Manger transferred the petitioner as UPSA to CMS College Higher Secondary School, Kottayam for the period from 1.7.2009 to 4.6.2011 in a transfer vacancy, as per Ext.P8 order of appointment. Ext.P8 order of appointment was rejected by the Deputy Director of Education, as per Ext.P9 order dated 20.7.2010. The Manager accommodated the petitioner in a regular vacancy of UPSA in CMS Higher Secondary School, Kuzhikkala with effect from 1.6.2010, as per Ext.P10 order of appointment. Ext.P10 order of appointment is not approved so far. W.P.(C).No.27656 OF 2010 4 4. While so, the petitioner submitted Ext.P11 statutory revision under Rule 8A of Chapter XIV A Kerala Education Rules challenging Ext.P6 order of appointment of respondent No.7 as LPSA and approval granted for the same. Ext.P11 revision is pending disposal. 5. Though notice was served on the respondents, there is no appearance for respondent Nos. 6 and 7. 6. The reliefs prayed for by the petitioner in the Writ Petition are the following: “i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P6 appointment order and the approval granted to the same by respondent Nos.6 and 7 respectively ultra vires of the provisions contained in Note 1 Rule 51A Chapter XIVA KER; ii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent No.1 to consider and pass final orders on Ext.P11 statutory revision petition in accordance with law within such time as this Hon'ble Court may deem fit and proper in the interest of justice; iii) To issue a writ in the nature of mandamus or W.P.(C).No.27656 OF 2010 5 any other appropriate writ or order directing respondent Nos.1 to 5 to disburse salary and allowances to the petitioner w.e.f.1/6/2009 onwards in view of Ext.P2 order of approval within such time as this Hon'ble Court may deem fit and proper in the interest of justice; iv) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent No.4 to consider Ext.P10 appointment of the petitioner for grant of approval under Rule 8 Chapter XIVA KER within such time as this Hon'ble Court may deem fit and proper in the interest of justice; and v) To mould and grant such other reliefs, as this Hon'ble Court may deem just and proper in the interest of justice, including costs.” 7. Since Ext.P11 statutory revision is pending before the Director of Public Instruction, relief No.(i) cannot be granted at this stage. However, relief No.(ii) can be granted. 8. It is submitted by the learned counsel for the petitioner that though the petitioner was working all through out she was not paid salary and allowance with effect from 1.6.2009 onwards, though Ext.P2 order of appointment was approved, by the Educational Officer. W.P.(C).No.27656 OF 2010 6 9. In the facts and circumstances of the case, I am of the view that the petitioner should be paid salary with effect from 1.6.2009 onwards on condition that the petitioner shall execute a bond to the Assistant Educational Officer concerned, that in case it is found that the petitioner is not entitled to get salary, she will repay the same. Accordingly, the Writ Petition is disposed of as follows: a) The Director of Public Instruction shall consider and dispose of Ext.P11 revision filed by the petitioner, as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioner, the Manager and the 7 th respondent. W.P.(C).No.27656 OF 2010 7 b) The Educational Officer concerned as well as the Corporate Manager shall take necessary steps as expeditiously as possible to disburse the salary and allowance to the petitioner for the period from 1.6.2009. The salary shall be disbursed to the petitioner only on the petitioner executing a bond before the Educational Officer undertaking to repay the same in case it is found that the petitioner is not entitled to receive the salary for the said period. c) The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the Director of Public Instruction. K.T.SANKARAN, JUDGE. cms