IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 RP.No. 470 of 2011() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13020/2010 Dated 14/03/2011 .................... REVIEW PETITIONER(S)/ PETITIONERS ---------------------------------------------------------- 1. ALEYAMMA ABRAHAM, H.S.A.(DD)VICTORY V.H.S.S,OLATHANNI,NEYYATTINKARA 2. SELIN P.RININ, U.P.S.A.,VICTORY, V.H.S.S,OLATHANNI,NEYYATTINKARA BY ADV. SRI.R.T.PRADEEP SRI.SREEKANTH S.NAIR RESPONDENT(S)/ RESPONDENTS ---------------------------------------------------- 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.PIN-695 001 2. DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA.PIN-695 121 3. MANAGER, VICTORY VOCATIONAL HIGHER SECONDARY SCHOOL, OLATHANNI POST.PIN-695 127 R1 & R2 BY GOVERNMENT PLEADER SRI.V.VIJULAL THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 28/07/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts RP.NO.470/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX-1 COPY OF THE PROCEEDINGS OF GENERAL EDUCATION DEPARTMENT DATED 7/08/2000. ANNEX-II COPY OF THE GOVERNMENT ORDER G.O.(RT)NO.890/2005/G.EDN DATED 2/03/2005. ANNEX-III COPY OF THE JUDGMENT DATED 24/5/2011 IN W.A.NO.587/2011. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.470/2011 in W.P.(C) No. 13020/2010 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2011. O R D E R The review petition is filed contending that the effect of Exts.P16 and P17 orders have not been fully considered by this Court while rendering the judgment. In fact, in the last paragraph of the judgment, after considering Exts.P16 and P17, it was held that the second petitioner cannot get approval of her appointment unless and until the promotion of the first petitioner is approved, as that alone will create a fresh vacancy for justifying the appointment of the second petitioner. 2. The facts are already adverted to in the judgment. The first petitioner who was working as UPSA, was promoted as H.S.A. when one Smt. C.S. Swarnamma H.S.A. (Social Studies) took leave for 65 days from 28.10.1997 to 31.12.1997. The second petitioner was appointed in the resultant vacancy of UPSA from 28.10.1997. The promotion of the first petitioner was never approved, as the promotion of Smt. Swarnamma as H.S.A. (Social Studies) was approved only with effect from 1.6.1998. Therefore, Smt. Swarnamma was continuing only as UPSA while she was on leave. rp 470/2011 2 3. It is pointed out by the learned counsel for the review petitioners that Ext.P16 Government Order will apply in the case of the second petitioner for getting approval. Learned counsel further submitted that even though the first petitioner's promotion as H.S.A. is not approved, the second petitioner is entitled for approval as UPSA and salary in the light of Ext.P16. 4. Ext.P16 circular, as evident from it, is issued to cover a case where there are rival claimants for the higher post and demand is raised during the pendency of the proposal for approval, for payment of salary in the lower post. This is clear from para 1(a) of the said circular. For easy reference, I will extract sub paragraphs (a) and (b) of para 1 herein: “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 in 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.” Sub para (b) is not independent of sub para (a). Therefore, both the rp 470/2011 3 situations are not arising in this case. The situation that is envisaged by the circular is only in a case where there are rival claimants for the promoted post and the fresh appointee's approval is also postponed for non approval of the appointment of the promotee because of the non settlement of the dispute between them. It is only in such cases any approval of the fresh appointee in the lower post and payment of salary could be envisaged. This is clear from sub para (ii) of para 2 also. It is clear from the said para that the promotee will be counted against the higher post, but salary shall be paid only at the rate applicable to him in the lower post, till the dispute for promotion is settled. Learned counsel for the petitioner laid emphasis on sub para (iii) of para 2 of Ext.P16 which states as follows: “(iii) The item mentioned in para 1(b) above will be allowed.” It is therefore submitted that as a lien adjustment as provided in sub para (iv) of para 2 is also possible, the second petitioner herein is entitled to get approval and consequent payment of salary. 5. Herein, as already explained, the facts show that the promotee never got approval as H.S.A. (Social Studies). The second petitioner is only a fresh appointee in the consequent vacancy arose due to the unapproved promotion. Evidently, the first petitioner was promoted against a HSA post (leave vacancy) and it is an admitted fact that she was paid salary only as a rp 470/2011 4 UPSA. Therefore, both the first and second petitioners cannot get salary in the same post. It is not a case where there are rival claimants for the promoted post and in such cases ultimately if one of the person's claim is recognised, then one vacancy will arise, but that is not the situation herein. Therefore, the contention of the review petitioners cannot be accepted. Learned counsel for the review petitioners further submitted that Ext.P7 is an order passed in a similar case which will justify the claim of the petitioners. A reading of Ext.P7 shows that the situation envisaged in para 1(a) of Ext.P16 was available there and it is only in that context the approval of appointment as UPSA of the fresh appointee was directed by the Government. Apart from that, the same is not a general order, and its issuance depended upon its own facts. For all these reasons, the review petition does not merit consideration and hence the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/