IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 5TH SEPTEMBER 2007 / 14TH BHADRA 1929 OP.No. 9854 of 1999(W) -------------------------------- PETITIONER: ------------------ CHANDRALEKHA. S., SASIMANDIRAM, EZHIMATTOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.B.PREMACHANDRAN RESPONDENTS: --------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI, THODUPUZHA P.O. 4. THE DISTRICT EDUCATIONAL OFFICER, KATTAPPANA. 5. THE MANAGER, MANNAM MEMORIAL HIGH SCHOOL, NARIYAMPARA P.O, KATTAPPANA, IDUKKI DISTRICT. 6. SMT. SYAMALA DEVI, H.S.A. GOVERNMENT HIGH SCHOOL, CHEMPAKAPARA, IDUKKI DISTRICT. BY GOVERNMENT PLEADER SMT. M.R. HEMALATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.9854 OF 1999. JUDGMENT Petitioner and counsel absent. Dismissed for default. 5.09.2007 SD/- SIRI JAGAN, JUDGE. Orders on C.M.P.Nos.16154/99 & 41234/99 in o.p.no.9854/99 dismissed. 5.09.2007. SD/- S. SIRI JAGAN, JUDGE. TRUE COPY PA TO JUDGE. S.SIRI JAGAN, J. ================== O.P.No. 9854 of 1999 ================== Dated this the 4th day of January, 2010 J U D G M E N T The 5th respondent appointed the petitioner as a UPSA on 16.6.1997. The 5th respondent's school is an aided school. That appointment was in the vacancy of Smt.Thanuja Rani, who was promoted as H.S.A., by Ext.P1 order. The 4th respondent refused to approve the appointment of the petitioner on the ground that the promotion of Smt.Thanuja Rani as H.S.A. was rejected and, therefore, there is no vacancy, to which the petitioner could have been appointed. Against Ext.P1, the 5th respondent filed an appeal before the 3rd respondent, which was rejected by Ext.P2. Pursuant to the judgment in O.P.No.25038/1998, the 2nd respondent disposed of Ext.P3 revision petition filed by the 5th respondent against Ext.P2 order, dismissing the same, by Ext.P6 order. It is under the above circumstances, the petitioner has approached this Court seeking the following reliefs; “i) call for the records culminating in Exts.P1, P2 and P6 peruse them and issue an appropriate writ direction or order quashing them. ii) declare that the 5th respondent does not have any preferential claim over Smt.Thanuja Rani for appointment as HSA in the school. iii) issue a writ of mandamus or any appropriate writ, direction of (sic) order compelling the respondents to approve the appointment of the petitioner.” o.p.9854/99 2 2. The petitioner now admits that the case of Smt.Thanuja Rani was taken up before this Court and this Court also rejected the claim of Smt.Thanuja Rani for promotion as H.S.A., in so far as the vacancy to which she was promoted had to be filled up by accommodating a protected teacher of the same school. The petitioner now confines her relief for a direction to the 4th respondent to pay to the petitioner salary in the post of UPSA during the period which the petitioner worked pursuant to the appointment made by the 5th respondent. For that prayer the petitioner relies on Ext.P4 circular issued by the Government,. 3. A counter affidavit has been filed by the 4th respondent. The learned Government Pleader appearing for the 4th respondent would contend that in so far as the appointment of the petitioner as UPSA had never been approved, the petitioner is not entitled to payment of salary in that post. 4. I have considered the rival contentions in detail. 5. For the relief now sought, the petitioner bases her entire claim on Ext.P4 circular, which reads thus: “CIRCULAR Sub:- General Education - Aided Promotions to the posts carrying higher scale of pay - payment of salary to the promottee at the lower post as an interim measure - instructions - issued. Ref:- Letter No.H2-42373-89/DPI dated 16.5.1989 and 4.7.89 from the Director of Public Instruction. o.p.9854/99 3 1. A doubt has been raised as to. a) Whether salary of a teacher who has been promoted from a lower post to a post carrying higher scale of pay, but approval of appointment is pending consequent on the objection filed by a rival claimant who also staked his claims for, promotion to that post, can be paid salary at the lower post if he has approved service in the lower post; b) Whether appointment of the teacher who has been appointed in the consequential vacancy of the promotee can be approved and salary paid; 2. Director of Public Instruction has requested Government to issue suitable guidelines to be followed in such cases. Accordingly, the following clarifications are issued:- i) The item mentioned in para 1(a) may will be allowed by the Educational Officers. ii) the promotee will be counted against the higher post but salary shall be paid only at the rate applicale to him in the lower post, till the dispute for promotion is settled. however, in respect of appointments of Headmasters in Minority Schools, the instructions given as per Government letter No.69434/J1/89/G.Edn. dated 26.10.1989 will be followed. iii) The item mentioned in para 1(b) above will be allowed. iv) Claiming salary at the promoted scale will however depend on the outcome of the case. If the case is decided in favour of the promotee, his salary will be paid accordingly. If the case is decided in favour of the rival claimant, necessary lien adjustment in whose favour the case is decided may be made.” 6. I am of opinion that Ext.P4 is not intended to operate in situations like that of the petitioner. That is intended to operate in a situation where on account of rival claims for promotion between two teachers, the appointment of one of them to the vacancy claimed by both is not approved and consequently the appointment to the resultant vacancy in the lower post is also not approved. That is o.p.9854/99 4 because the vacancy is certain. But the appointment to that vacancy could not be approved because of the pending claims between two persons for promotion to the higher post. Here that is not the case. Smt.Thanuja Rani was promoted to a vacancy to which she was not entitled to since a protected teacher was awaiting recall to the school and nobody other than that protected teacher could have been appointed to that vacancy. Consequently, there never was any vacancy of UPSA to which the petitioner could have been appointed. Approval of appointment is the sine qua non for payment of salary. Approval can be only if there is a vacancy. Admittedly, the claim of the manager and Smt.Thanuja Rani for promotion of Smt.Thanuja Rani to the vacancy of H.S.A. has been rejected, which rejection was upheld by this Court. Consequently, Smt.Thanuja Rani all along continued to be UPSA. Consequently there never was, under law, a vacancy of UPSA to which the petitioner could have ben appointed. Without a vacancy no teacher can be paid salary under the Kerala Education Rules. Therefore, the petitioner is not entitled to either the relief prayed for or the relief which the petitioner now advances. Accordingly, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.9854/99 5 S.SIRI JAGAN, J. ================== O.P.No. 9854 of 1999-W ================== J U D G M E N T 4th January, 2010