IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 WP(C).No. 8023 of 2009(W) ---------------------------------------- PETITIONER(S): ----------------------- K.T.ABDUL MAJEED, AGED 40 YEARS, S/O.MUHAMMAD, ASSISTANT TEACHER (UPSA) AUP SCHOOL, PACHERY, MALAPPURAM DISTRICT. BY ADV. MR.ALIAS M.CHERIAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPLE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. ASSISTANT EDUCATIONAL OFFICER, MELATTUR, MALAPPURAM DISTRICT. 5. MANAGER, AUP SCHOOL, PACHERY MALAPPURAM DISTRICT. 6. MR.SREEDHARAN, AGED 40 YEARS, S/O. UNNAMAN, ASSISTANT TEACHER (UPSA) AUP SCHOOL, PACHERY, MALAPPURAM DISTRICT. SR. GOVERNMENT PLEADER MR.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ---------------------------------------------- W.P(C) No. 8023 of 2009-W --------------------------------------------- Dated this the 13th day of March, 2009. J U D G M E N T The petitioner is an aided school teacher. He was appointed as Assistant Teacher in the fifth respondent’s school, as per Exhibit P1 order dated 5.6.2002, against a newly sanctioned post. The Assistant Educational Officer approved the said appointment only with effect from 3.6.2003. The Manager filed Exhibit P2 appeal before the District Educational Officer contending that the petitioner’s appointment should have been approved with effect from 5.6.2002, as it was against a newly sanctioned post. That appeal was rejected by order dated 5.5.2004. The Manager thereupon filed Exhibit P3 revision petition before the Director of Public Instruction. That was dismissed by Exhibit P4 order dated 31.3.2006. The Manager thereafter filed Exhibit P5 revision petition before the Government. The Government heard the Manager, the petitioner and also the sixth respondent, who is admittedly a Rule 51A claimant and rejected the revision petition filed by the Manager. The rejection of the revision petition was communicated to the Manager by Exhibit P6 letter dated 30.12.2006. 2. The petitioner thereafter moved the Government by W.P(C) No. 8023 of 2009-W 2 submitting Exhibit P7 review petition seeking the approval of his appointment with effect from 5.6.2002. That request was turned down by the Government and the petitioner was informed of the same by Exhibit P8 letter dated 4.12.2008. In this writ petition the petitioner challenges Exhibit P2 to the extent it limits the approval of his appointment effective from 3.6.2003, Exhibit P4 order passed by the Director of Public Instruction and Exhibits P6 and P8 orders passed by the Government. He also seeks a direction to the Assistant Educational Officer to approve his appointment as Assistant Teacher with effect from 5.6.2002. The petitioner contends that even if his appointment is approved with effect from 5.6.2002, it will not affect the seniority of the sixth respondent. 3. The pleadings disclose that the sixth respondent was initially appointed as Assistant Teacher by Exhibit P9 order dated 23.10.2001 in a leave vacancy for the period from 1.12.1991 to 30.11.2001. The said appointment was actually for a period of less than sixty days and could not have been approved. However, the Assistant Educational Officer approved the said appointment as per order passed on 20.6.2005 for the period from 1.11.2001 to 30.11.2001, the date on which the leave vacancy terminated. The sixth respondent was again appointed as Assistant Teacher by Exhibit W.P(C) No. 8023 of 2009-W 3 P10 order dated 1.1.2002 in a leave vacancy for the period from 1.12.2001 to 30.11.2006. Since he did not have eight months service as on the date on which the school closed for the summer vacation he was retrenched from service on 30.4.2002. The sixth respondent’s appointment as per Exhibit P10 order dated 1.1.2002 was therefore approved only for the period from 1.1.2002 to 30.4.2002. He was re- appointed as Assistant Teacher by Exhibit P11 order dated 5.6.2002 in the very same leave vacancy and that appointment was approved fro the period from 5.6.2002 to 30.4.2003. The sixth respondent was appointed against a regular vacancy as per Exhibit P12 order dated 2.6.2003 and his appointment was approved with effect from that date. 4. When the petitioner was appointed on 5.6.2002 as per Exhibit P1 order against a regular vacancy, the sixth respondent had previous approved service in the school and was therefore entitled to be appointed in preference to the petitioner against the regular vacancy that arose on 5.6.2002. However for reasons best known to the Manager, the Manager re-appointed the sixth respondent in a leave vacancy and appointed the petitioner, a fresh hand, in the regular vacancy. That was the reason why when the petitioner’s appointment order was forwarded for approval, the Assistant W.P(C) No. 8023 of 2009-W 4 Educational Officer approved the petitioner's appointment only from 3.6.2003, the date following the date on which the sixth respondent was regularly appointed. In my opinion, the stand taken by the official respondents in the orders impugned in this writ petition cannot be said to be illegal and improper. The action of the Manager in appointing the petitioner against the regular vacancy that arose on 5.6.2002 ignoring the superior claim of the sixth respondent cannot confer on the petitioner any right to have his appointment approved with effect from a date earlier than the date on which the sixth respondent was appointed against the regular vacancy and that appointment approved. I therefore find no merit in the challenge to the orders impugned in this writ petition. The writ petition fails and is accordingly dismissed in limine. P.N.RAVINDRAN JUDGE ab