IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 26031 of 2007(Y) -------------------------- PETITIONER(S): --------------- MINI.A.R., HINDI (HSA), VMHS, KRISHNAPURAM, ALAPPUZHA (DISTRICT). BY ADV. SRI.M.S.UNNIKRISHNAN SMT.S.KARTHIKA SMT.K.P.GEETHA MANI SRI.M.R.ANISON SRI.T.R.RAJESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA 4. DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 5. THE MANAGER, VMHS, KRISHNAPURAM, ALAPPUZHA (DISTRICT). R1 TO R4 BY GOVT. PLEADER SMT.SMITHA SUKUMARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.26031/07 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1.11.2000. EXT.P2: TRUE COPY OF THE APPOINTMENT ORDER APPROVED BY THE DEO DATED 31.3.2002. EXT.P3: TRUE COPY OF THE ORDER NO.B3/5000/02 DATED 26.4.2003 ISSUED BY THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER DATED 28.8.2003 ISSUED BY THE 4TH RESPONDENT. EXT.P5: TRUE COPY OF THE ORDER DATED 8.12.2004 ISSUED BY THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF THE G.O.(RT)NO.1691/06/GI.EDN. DATED 25.4.2006. EXT.P7: TRUE COPY OF THE JUDGMENT DATED 28.11.2006 IN W.P(C). 18003/06. EXT.P8: TRUE COPY OF THE G.O.(RT)236/07/G.EDN. DATED 23.5.2007. EXT.P9: TRUE COPY OF THE APPOINTMENT ORDER OF BABU P.VARGHESE AS PHY. EDUCATION TEACHER IN THE SCHOOL. EXT.P10: TRUE COPY OF THE APPOINTMENT ORDER DATED 14.11.2007 ISSUED BY THE DEO. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.26031 OF 2007 ------------------------------------------- Dated this the 5th day of April, 2010 JUDGMENT 1.The petitioner was appointed as HSA (Natural Science) with effect from 1.11.2000 as against a leave vacancy, till 4.1.2001. Though that appointment was not approved initially, on direction from the Director of Public Instructions, the District Educational Officer later issued Ext.P2, approving such appointment. Thereafter, consequent on the retirement of the then Headmistress on superannuation, a vacancy of HSA (Natural Science) arose. Though this is the contention of the petitioner, this is also the moot point of controversy between the statutory authorities, the management and the petitioner teacher. The management and the petitioner sail together. Ultimately, this Court directed the Government to consider the entire issue relating to the appointment of the petitioner, a Natural Science teacher, with effect from 6.6.2001. The WPC.26031/07. 2 Government, while considering that, essentially re-opened the finality of the earlier decision relating to the petitioner's initial appointment against leave vacancy, with effect from 1.11.2000 to 4.1.2001. 2.As a consequence, the Government proceeded to hold that the vacancy of HSA (Natural Science) did not arise consequent to the promotion of Smt.Radhamma as Headmistress following the retirement of the then Headmaster on 31.3.2001. The Government concluded that subject ratio as applicable to determination of vacancies in the category of HSA in Natural Science, Physical science and Mathematics did not provide room for accommodating the petitioner as a Natural Science teacher. 3.When this matter is being considered, necessary advertance has to be made to the Division Bench decision of this Court in Philomina v. Babu Varghese [2001(2) KLT 519 (FB)] and the WPC.26031/07. 3 clarifications to that judgment as available in the judgment of the Apex Court in Deepa Augustine v. Geetha Alex [2008(2) KLT 771(SC)]. In terms of those judgments, the concept of subject ratio and subject requirement have to be specifically dealt with to determine as to the identity of the vacancy which can be stated to have arisen. The ratio to be fixed and the preference to be given for qualifications have to be so determined. 4.But in the case in hand, two things have to be noticed. Firstly, though the impugned order is rendered much after the judgment of the Full Bench, the said decision has not been adverted to or considered by the Government. Equally, the interpretation given to the Full Bench decision by the Apex Court in Deepa (supra) also deserves consideration as law laid by the Apex Court. Secondly, there is serious jurisdictional error and legal infirmity in the impugned order in as much as the Government have, by that order, reversed WPC.26031/07. 4 the finality of the approval order regarding the initial appointment of the petitioner from 1.11.2000 to 4.1.2001. That appointment, though initially not approved by the DEO, was later approved as per Ext.P2, following the direction of the DPI. That decision stood concluded and the same should not have been re-opened even assuming that the Government have suo motu revisional jurisdiction in relation to that matter. The directions contained in Ext.P7 judgment of this Court did not require the Government to consider the correctness or otherwise of the decision rendered in relation to such appointment for a short term period. However, Ext.P6 was earlier issued cancelling that appointment. Obviously, no revisional power could have been exercised to re-open the finality of the approval granted to the appointment of the petitioner from 1.11.2000 to 4.1.2001. Therefore, that part of the impugned Ext.P8 order is set aside. WPC.26031/07. 5 Following the aforesaid, the petitioner is eligible to be treated as one entitled to the benefit of Rule 51A Chapter XIV A of the KER and would be eligible for being considered as against the vacancy of Natural Science teacher which occurred resultant of the promotion of Smt.Radhamma as Headmistress. Of course that has to be done by adverting to and considering the subject ratio and subject requirement in terms of the precedents referred to above, viz., Philomina and Deepa. The impugned order is accordingly set aside paving way for the Government to re-consider the issue subject, however, to the finality of this judgment relating to the petitioner's appointment as Natural Science teacher for the period from 1.1.2000 to 4.1.2001. Let final decision on this follow at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment. All other issues on merits are left open. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.19/04.