IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 31790 of 2007(H) -------------------------- PETITIONER(S): --------------- T.SALEENA, W/O ABDUL JALEEL, APATHUKATTIL HOUSE, ARIPRA, VALAMBUR, PERINTHALMANNA, MALAPPURAM. (HSA, PHYCICAL SCIENCE)IN ISLAHIYA ORIENTAL HIGH SCHOOL, EDAVANNA) BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SMT.RESMI G. NAIR SRI.NISHIL.P.S. SRI.P.S.PRADEEP RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. THE MANAGER AND CORRESPONDENT ISLAHIYA ORIENTAL HIGH SCHOOL, EDAVANNA, MANJERI VIA, MALAPPURAM. 5. SMT. RAHEENA, U.P.S.A., ISLAHIYA ORIENTAL HIGH SCHOOL, EDAVANNA, MANJERI, MALAPPURAM. ADV. SRI.V.A.MUHAMMED FOR R5 SRI.K.E.HAMZA FOR R5 SRI.V.A.MUHAMMED FOR R4 SRI.K.E.HAMZA FOR R4 R1 TO 3 BY GOVT. PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 31790 of 2007 H - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of February, 2009 JUDGMENT Balakrishnan Nair, J. The petitioner was appointed as High School Assistant (H.S.A.) (Physical Science) in the 4th respondent's School for the period from 11.1.2000 to 29.3.2000. The said appointment was approved and she was a 51A claimant for the post of H.S.A. While so, two promotion vacancies in the cadre of Upper Primary School Assistant (U.P.S.A.) arose on 6.12.2005 and 8.12.2005. The Manager appointed the 5th respondent in one of those vacancies on 8.12.2005. The D.E.O. did not approve the appointment and the claim for approval was rejected by Ext.P3 order. The Manager filed appeal before the Deputy Director. But the appeal was dismissed by Ext. P3(a). The 5th respondent moved the Government in revision under Rule 92, Chapter XIV A of the Kerala Education Rules (K.E.R. for short). The said revision was heard and allowed by Ext.P8 order dt.16.8.2007. In W.P.(C).No. 31790 of 2007 2 the mean time, a retirement vacancy of H.S.A. (Physical Science) arose on 1.6.2006. The petitioner was appointed in that vacancy and that appointment was approved also. 2. This writ petition is filed challenging Ext.P8. She claims appointment as U.P.S.A. w.e.f. 8.12.2005 by virtue of her earlier approved spell of service in the cadre of H.S.A. If she was appointed in that vacancy, she could have got promotion under Rule 43 as H.S.A. (Physical Science) on 1.6.2006. During the academic year 2007-08 there was a reduction of one post of H.S.A. (Physical Science) and the petitioner is facing retrenchment. Since she is not a promotee from the post of U.P.S.A. she cannot go back to that post and therefore she is constrained to challenge Ext.P8 to establish her right to get the vacancy of U.P.S.A. in which the 5th respondent was appointed. Referring to Rule 51A as it stands now, the petitioner submits that though she is retrenched from the post of H.S.A., she is entitled to get the vacancy in the post of U.P.S.A. also. 3. The learned counsel for the petitioner also points out that the Government proceeded on the footing that she never staked her claim W.P.(C).No. 31790 of 2007 3 for U.P.S.A. The same is not correct. The statements in Ext.P3 order would show that the said officer has noticed the presence of the petitioner as 51A claimant. So the government proceeded on a wrong footing and allowed the claim of the 5th respondent. 4. The 5th respondent has filed a counter affidavit supporting the impugned order. She relies on Ext.R5(a) letter written by the petitioner to the Manager on 16.1.2006. In Ext.R5(a) she does not demur against the appointment of the 5th respondent as U.P.S.A., but claims only for the vacancy of H.S.A. that may arise on 1.6.2006. Ext.R5(b) letter addressed to the D.E.O. dt.16.1.2006 by the petitioner also does not mention her claim for the post of U.P.S.A. The 5th respondent also took us through Ext.R5(d) judgment of this Court in W.P.C. 11841 of 2006 filed by the petitioner. In that case she canvassed the claim for the post of H.S.A. which arose on 1.6.2006. So the principle of constructive res judicata will apply and she is barred from staking any claim for U.P.S.A. after the disposal of that Writ Petition, it is submitted. W.P.(C).No. 31790 of 2007 4 5. The 4th respondent has also filed a counter affidavit raising similar contentions. The petitioner has not filed any reply affidavit. The learned counsel for the petitioner submitted that her right under Rule 51A will be lost if only the Manager followed the procedure under Note 2 of Rule 51A. 6. We heard the Government Pleader for the official respondents also. 7. Before the amendment to Rule 51A is introduced w.e.f. 25.6.2005, a person thrown out from a post in an Aided School has a right to get appointment in that post only. The said position is settled by several decisions of this Court. The earliest of them were in Gopalakrishnan Nair v. The District Educational Officer (1988 (1) KLT 644) and Sreekumari Amma v. State of Kerala (1988 (2) KLT 359). The relevant portion of Rule 51A of Chapter XIVA K.E.R. as it stood in the year 2000 reads as follows: “51A. Qualified teachers who are relieved as per Rule 49 or 52 on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an W.P.(C).No. 31790 of 2007 5 Educational Agency to which the school may be subsequently transferred provided that they have not been appointed in permanent vacancies in schools under any other Educational Agency.” The relevant portion of the said Rule after the amendment on 25.6.2005 reads as follows: “51A. Qualified teachers who are relieved as per Rule 49 of 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified that may arise in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency.” 8. The right of a retrenched teacher to claim any vacant teaching post arose only after the aforementioned amendment. The petitioner is not a 51A claimant, who has been appointed in a vacancy having a duration of an academic year. Therefore, her claim for appointment to the vacancy, which arose on 8.12.2005 in the cadre of W.P.(C).No. 31790 of 2007 6 U.P.S.A. is untenable. When the petitioner earlier approached this Court by filing W.P.(C) 11841 of 2006, the grievance regarding non- appointment in the post of U.P.S.A. was also subsisting, but she has not chosen to ventilate that grievance in the writ petition. So, the principles of constructive res judicata will bar the petitioner agitating that claim in the writ petition filed subsequently. Further, since the petitioner has worked for one academic year from 1.6.2006 and even if she is retrenched after that, she can claim the vacancy available in the cadre of U.P.S.A. also, provided there is no better claimant. So, no serious prejudice is also caused to the petitioner. 9. In view of the above position, this writ petition fails and is dismissed. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) tm Judge W.P.(C).No. 31790 of 2007 7