IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WA.No. 1148 of 2008 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.28854/2006 Dated 20/02/2008 .................... APPELLANT/PETITIONER: PRASAD KUMAR P.K., FULL TIME MENIAL, V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT (PERUMPATTETHU HOUSE), MALAYALAPUZHA, THAZHAM P.O., PATHANAMTHITTA DISTRICT). BY ADV. SRI.P.HARIDAS RESPONDENTS/RESPONDENTS/ADDL.RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTORATE OF PUBLIC INSTRUCTIONS SECRETARIAT, THIRUVANANTHAPURAM, 3. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA, PATHANAMTHITTA DISTRICT. 4. DISTRICT EDUCATIONA, OFFICER, PATHANAMTHITTA . 5. THE MANAGER V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT. 6. THE MANAGER V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT. 7. M.SANTHOSH KUMAR L.D. CLERK, V.K.N.M.H.S. VAYYTTUPUZHA, PATHANAMTHITTA DISTRICT, ('USHUS', ERATHU , VADAKKEKKARA, MANIMALA, KOTTAYAM DISTRICT.). 8. LIJU, KARICHALOOR HOUSE, KALANGOOR, ADOOR TALUK. 9. SHEEJA,KACHIPUZHIYIL VEEDU, AZHOOR, PATHANAMTHITTA. BY GOVT. PLEADER SRI.K.SANDESH RAJA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2008 ALONG WITH WA NO. 1149 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.Nos.1148 & 1149 of 2008 --------------------------------- JUDGMENT Koshy, J. Appellant/petitioner was appointed as a Full Time Menial in the fifth respondent's School for the periods from 18.11.1996 to 17.11.1999 and from 1.4.2000 to 24.3.2003. He was retrenched from service on 15.7.2001. He claimed promotion to higher future vacancies. The learned single Judge rejected the claim on the ground that his appointment was for temporary vacancies, though approved and he cannot claim promotion under Rule 43 of Chapter XIV-A KER. The contention of the appellant/petitioner is that Rule 51A was amended by Exhibit P9 order dated 25.6.2005. After the amendment, under Rule 51A a retrenched teacher can have a rightful claim for re-appointment in a higher or lower category post, provided he is qualified. According to the petitioner, admittedly, he being a 51A claimant, he is entitled to get WA 1148 & 1449/08 2 appointment to a future higher vacancy also. It is pointed out that the eighth respondent, a fresh candidate, was appointed in a vacancy that arose after Exhibit P9 order and when he resigned, 9th respondent was appointed. Petitioner is rightfully entitled to get the post. While passing the impugned judgment, the effect of Exhibit P9 Government Order was not considered. The learned counsel also referred to a Division Bench decision of this Court in Joshi v. Krishna P.Rajan (2006 (4) KLT SN 63 (C.No.85). In any event, in the impugned order, challenged in W.P.(C)No.28854/06, the Educational authorities did not consider the effect of Exhibit P9 Government Order and the claim of the petitioner under Rule 51A for appointment to the future vacancy that arose after the Government Order. We also note that Exhibit P7 order was challenged in O.P.No.25482/02 (WA 1189/08). Exhibit P7 order was passed on 31.5.2002 before the amendment of the Rule. WA 1148 & 1449/08 3 2. In these circumstances, the second respondent, Director of Public Instructions is directed to consider the claim of the petitioner for appointment in the vacancy that occurred after Exhibit P9 order and pass appropriate orders with due notice to the petitioner/Manager and respondents 8 and 9 as expeditiously as possible, in any event, within three months from the date of receipt of a copy of this judgment. Petitioner may approach the Government with a detailed representation along with a copy of this judgment, with copy to the Manager and respondents 8 and 9. These writ appeals are disposed of as above. (J.B.Koshy, Judge) 16th September, 2008 (K.P.Balachandran, Judge) tkv