IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WA.No. 154 of 2006(A) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15663/2005 Dated 24/08/2005 .................... APPELLANT/ PETITIONER ------------------------ V.J.SREEKUMAR, LOWER GRADE SANSKRIT TEACHER, AMRITHA SANSKRIT HIGHER SECONDARY SCCHOOL, PARIPPALLY, KOLLAM. BY ADV. SRI.C.HARIKUMAR RESPONDENTS/ RESPONDENTS -------------------------- 1. ASST. DIRECTOR(GENERAL), DIRECTORATE OF PUBLIC INSTRUCTIONS, KERALA. 2. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. THE MANAGER, AMRITHA SANSKRIT HIGHER SECONDARY SCHOOL, PARIPPALLY, KOLLAM. 5. B.PRASAD,PRASANNA MANDIRAM, PARUTHANPARA, MARANDU P.O., KOLLAM. GOVERNMENT PLEADER , SMT.R.BINDU FOR R1 TO 3 SRI.S.ABDUL RAZZAK FOR R5 SRI.P.K.SURESH KUMAR FOR R4 SRI.K.P.SUDHIR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. --------------------------------- W.A.No.154 OF 2006 --------------------------------- Dated this the 25th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner, in W.P.(C) No.15663/2005, is the appellant. The respondents were the respondents in the writ petition. The appellant filed the writ petition, challenging Ext.P8 order of the Director of Public Instructions, directing the appointment of the 5th respondent in the vacancy of H.S.A (Sanskrit) in the 4th respondent's school, which arose on 29.11.2001. 2. The brief facts of the case the following: The appellant was, a Lower Grade Sanskrit Teacher, eligible for appointment as H.S.A. Sanskrit, under Rule 43B of Chapter XIVA of the K.E.R. When a vacancy arose on 29.11.2001, in the post of H.S.A. Sanskrit, the petitioner was appointed. The 5th respondent staked his claim for re- appointment as a protected teacher, on the strength of G.O.(P) W.A.No.154/2006 2 No.112/2001/G.Edn. dated 26.3.2001. The Deputy Director by Ext.P3 order dated 29.7.2002 directed to recall the 5th respondent and accommodate in that vacancy. Appellant submits, he challenged that order before this Court by filing O.P.No.31075/2002. There was an interim stay of Ext.P3 in that writ petition. Apparently, based on the said interim order, the appointment of the petitioner as H.S.A. (Sanskrit) was approved, on 30.11.2004, with effect from 29.11.2001. Challenging the said order, the 5th respondent moved the D.P.I. by filing a revision. The said revision, after hearing both sides, was allowed by Ext.P8. The approval of appointment of the petitioner was cancelled, as per Ext.P8. There was a further direction to recall the 5th respondent, who was at that time working in Kalluvathukkal Panchayat High School on deployment. The appellant contended that the 5th respondent is only a retrenched teacher and therefore a Rule 51A claimant. The petitioner being a Rule 43B claimant, he is entitled to get preference when a vacancy arises in the cadre of H.S.A. The appellant also relied on Ext.P1 judgment, wherein the 5th respondent's claim as against the promotion of another Lower Grade Sanskrit Teacher W.A.No.154/2006 3 as H.S.A. was rejected. The official respondents and the 5th respondent supported the order of the D.P.I, Ext.P8. 3. The learned Single Judge, after hearing both sides, dismissed the writ petition holding that the 5th respondent being a retrenched teacher with 7 years service is entitled to get preference. Aggrieved by the judgment of the learned Single, this writ appeal is filed. The appellant reiterated the contentions, which he unsuccessfully canvassed before the learned Single Judge. 4. Whether a claim under 43B or 51A will prevail does not arise in this case. A vacancy for promotion or direct recruitment arises only after accommodating a protected teacher. The orders issued, concerning accommodation of protected teachers, can be traced to the powers of the Government under Rule 14 of Chapter XXIII of the K.E.R. Apart from that, the Government have powers to relax the rigour of any rule, in view of Rule 3 of chapter I of the K.E.R. So, we are of the view that there will be no vacancy to accommodate the W.A.No.154/2006 4 appellant/writ petitioner before accommodating a protected teacher like the 5th respondent. Therefore, the challenge against Ext.P8 fails and the writ appeal is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps