IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 8647 of 2006(D) ------------------------- PETITIONER(S): ---------------------- AUGUSTA VIMALA VINCENT, W/O.WILSON GEORGE, AGED 43 YEARS, HSA (ENG) ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-14. 3. DY.DIRECTOR OF EDUCATION, ERNAKULAM, COCHIN-30. 4. DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 5. THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTTAPPURAM, P.O.KOTTAPPURAM, KODUNGALLUR. 6. HEADMASTER, ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT. 7. JOLLY RAPHEL, HSA (NS) ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 8647/2006 APPENDIX PETITIONER'S EXHIBITS P1 COPY OF THE APPOINTMENT ORDERS AND THE APPROVAL THEREOF (DATED 18.09.1995 (Endt.B1./12046/95/D.Dis DATED 18.01.1996) 3-1-1996 (Endt.B1.474/96/ D.Dis. DATED 30-4-1996) 9-9-1996 (Endt.B1.10447/96/D.Dis. D.Dis DATED 3-2-1997 AND 23-7-1998 (Endt.B1. 6854/96/D.Dis. DATED 28-11-1998) P2 COPY OF THE ORDER NO. 8689/98/B1 OF THE DIST. Edl. OFFICER, ERNAKULAM P3 COPY OF THE ORDER NO. B2-8102/99 OF THE Dy. DIRECTOR OF Edn., ERNAKULAM P4 COPY OF THE ORDER NO. ET4/92482/99/K.Dis. OF THE 2ND RESPONDENT P5 COPY OF THE ORDER OF APPOINTMENT ALONG WITH THE APPROVAL THEREOF P6 COPY OF THE G.O. (Rt) No. 897/2002/G.Edn. OF THE GOVERNMENT P7 COPY OF THE ORDER OF APPOINTMENT ALONG WITH THE APPROVAL THEREOF P8 COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT IN C.M.P. No. 11952/2003 IN O.P. No. 14016/2002 P9 COPY OF THE LETTER No. B1/12337/02 OF THE Dist. Edl. OFFICER P10 COPY OF THE ORDER No. D.Dis.B1/9909/2001 OF THE Dist. Edl. OFFICER P11 COPY OF THE LETTER OF THE PETITIONER P12 COPY OF THE G.O. (Rt.) No. 4126/2003/Gl. Edn. OF THE GOVERNMENT P13 COPY OF THE LETTER No. 58406/A2/2003/Gl.Edn. OF THE GOVERNMENT P14 COPY OF THE ORDER NO. B2-10321/03 OF THE Dy. DIRECTOR OF Edn. ERNAKULAM P15 COPY OF THE APPEAL PETITION FILED BEFORE THE 2ND RESPONDENT P16 COPY OF THE NOTICE No. RA (2)/24870/04 OF THE 2ND RESPONDENTS P17 COPY OF THE G.O. (P)No. 112/2001/G. Edn. OF THE GOVERNMENT P18 COPY OF THE ORDER No. D.Dis.75340/2001/RA(2)/DPI OF THE 2ND RESPONDENT P19 COPY OF THE G.O. (P) No.286/98/G.Edn. OF THE GOVERNMENT WPC NO. 8647/2006 P20 COPY OF THE STAFF FIXATION ORDER NO. D.Dis.7541/B1/02 OF THE Dist. Edn. Or. P21 COPY OF THE ORDER OF APPOINTMENT ALONG WITH THE APPROVAL THEREOF P22 COPY OF THE ORDER OF APPOINTMENT P23 COPY OF THE COMMON SENIORITY LIST TRUE COPY P.S. TO JUDGE SD S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.8647 of 2006 ---------------------------------------------- Dated this the 29th day of November, 2011 JUDGMENT In a dispute between Smt. Helen Joys and the petitioner for appointment to the post of HSA (Social Studies) in the Schools managed by the 5th respondent educational agency, the Government passed Ext.P6 order, the operative portion of which reads thus: “ In the circumstances, the order No.B1-5300/D.Dis dated 30.3.01 of the District Educational Officer, Ernakulam approving the appointment of Smt. Helen Joys is cancelled and the claim of Smt. Augusta Vimala Vincent for appointment with effect from 14.9.98 as a 51A claimant is upheld.” In implementation of the same, the Manager issued Ext.P7 order, whereby the petitioner was appointed only with effect from 5.6.2002, which was approved by the District Educational Officer. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “A. Issue a writ of mandamus or appropriate writ, order or direction directing the Respondents to give appointment in the vacancy of H.S.A. (SS) which had arisen on 14-9-98 in St.Mary's High School, Palliport with effect from the date of W.P.(C)No./10 2 occurrence of vacancy with full salary since then. B. Issue a writ of certiorari or appropriate writ, order or quashing Exhibit P7 order to the extent to which it limits the benefit from 2/7/2002. C. Issue a writ of certiorari or appropriate writ, order or quashing Exhibits P9, P12, P13 and P14. D. direct the respondents to sanction 16th division in St.Mary's High School, Palliport for the academic year 2001-2002 by applying 1:40 ratio. E direct the Respondents to accommodate the Petitioner in the 15th vacancy of H.S.A. (CORE) in St.Mary's High School, Palliport for the academic year 2001- 2002. F direct the Respondents to sanction 16th division in St.Mary's High School, Palliport for the academic year 2002-2003 and also to accommodate the petitioner in the above vacancy. G direct the 2nd Respondent to consider and pass appropriate orders on Exhibit P15 in terms of KER and on the basis of the Judgment the division bench in K.Subadhra v. State of Kerala (W.A No 1218/91).” 2. The petitioner's contention is that Ext.P6 order has become final. As per that order, the petitioner is entitled to appointment with effect from 14.9.1998 as a 51A claimant. Therefore, the petitioner is entitled to be appointed with effect from 14.9.1998 and salary disbursed to her with effect from that date is the submission made. 3. The contention of the learned Government Pleader is that there is another teacher, namely, the 7th respondent, W.P.(C)No./10 3 who has superior claim over the petitioner and therefore, Ext.P6 order cannot be implemented as such. The appointment of the petitioner can only be with effect from a subsequent date when a vacancy to accommodate the petitioner arose, which only has been done by Ext.P7 is the contention of the learned Government Pleader. 4. I have considered the rival contentions in detail. Nobody has a case that Ext.P6 has been subjected to challenge either by the 7th respondent or the 5th respondent. As such, Ext.P6 order has to be implemented as such. In fact even in this writ petition, the 7th respondent has not filed any counter affidavit putting forward any contention as raised by the leaned Government Pleader. In Ext.P7 appointment order, the petitioner has been appointed only with effect from 5.6.2002. That is not in accordance with Ext.P6. 5. In the above circumstances, the writ petition is disposed of with the following directions: The 5th respondent shall forward a fresh appointment order appointing the petitioner with effect from 14.9.1998 to the 4th respondent within two weeks and the 4th respondent shall ensure that the 5th respondent complies with the said W.P.(C)No./10 4 direction within two weeks from the date of receipt of a copy of this judgment. On receipt of the appointment order, the 4th respondent shall take appropriate action thereon in accordance with Ext.P6 judgment within a further period of one month therefrom. Arrears of salary due to the petitioner on that basis shall be disbursed to the petitioner within a further period of one month. S. SIRI JAGAN, JUDGE acd W.P.(C)No./10 5