IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WP(C).No. 8936 of 2008(L) ----------------------- PETITIONER : --------------------- 1. M.K.NARENDRANATH, MANAGER, REPUBLICAN V.H.S. SCHOOL, KONNI, PATHANAMTHITTA. 2. SINDHU R. NAIR, HSA (MALAYALAM), REPUBLICAN V.H.S. SCHOOL, KONNI, PATHANAMTHITTA. BY ADVS. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN 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 (E) DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA. 4. THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. R1 TO R4 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 8936 of 2008(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPOINTMENT ORDER DATED 1.7.2004 ISSUED BY THE PETITIONER. EXT.P2 : COPY OF THE G.O.(MS) NO. 237/2000/G.EDN. DATED 15.7.2000. EXT.P3 : COPY OF THE JUDGMENT DATED 20.9.2007 IN WP(C) NO. 10954/2007. EXT.P4 : COPY OF THE ORDER DATED 28.11.2007 IN I.A. 15800/2007. EXT.P5 : COPY OF THE APPOINTMENT ORDER DATED 5.6.2006. EXT.P6 : COPY OF THE REPRESENTATION DATED 5.6.2006 BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P7 : COPY OF THE REJECTION ORDER DATED 16.11.2006 ISSUED BY THE 4TH RESPONDENT. EXT.P8 : COPY OF THE REJECTION ORDER DATED 19.1.2007 ISSUED BY THE 3RD RESPONDENT. EXT.P9 : COPY OF THE REJECTION ORDER DATED 6.6.2007 ISSUED BY THE 2ND RESPONDENT. EXT.P10 : COPY OF THE REJECTION ORDER DATED 4.12.2007 ISSUED BY THE 1ST RESPONDENT. EXT.P11 : COPY OF THE ORDER NO. B3-12724/2007 DATED 31.12.2007. EXT.P12 : COPY OF THE G.O.(P) 317/2005/G.EDN DATED 17.8.2005. EXT.P13 : COPY OF THE ORDER NO. B4/760/08/L.DIS DATED 8.2.2008. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.8936 OF 2008 ---------------------------------------------- Dated this the 9th day of June, 2011 JUDGMENT The first petitioner is the Manager of an aided school and the 2nd petitioner is a HSA (Malayalam) in the aided school of which the 1st petitioner is the Manager. For the year 2004-2005, there arose a vacancy of HSA (Malayalam) in the school. By Ext.P1 order dated, 1.7.2004, the 1st petitioner appointed the 2nd petitioner as HSA(Malayalam) from 1.7.2004 onwards. That appointment was refused to be approved on the basis of Ext.P2 Government Order. The first petitioner challenged the said action of non-approval and this Court by Ext.P3 judgment held that the application of Ext.P2 Government order to Ext.P1 appointment order of the 2nd petitioner is misplaced, insofar as the statutory rules applicable had not yet been amended commensurate with Ext.P2 Government Order. Therefore, by Ext.P3 judgment, this Court directed the DEO to consider the question of approval of the 2nd petitioner's appointment dehors Ext.P2 Government Order. While that writ petition was pending, an additional W.P.(C)No.8936/08 2 division vacancy arose in the school. At that time since the writ petition challenging non-approval of Ext.P1 appointment order with effect from 1.7.2004 was pending, the Manager thought that the 2nd petitioner can be accommodated in the new additional division vacancy by way of abundant caution. Therefore, the Manager issued Ext.P5 appointment order dated 5.6.2006 appointing the 2nd petitioner from 5.6.2006 in the additional division vacancy. It was while the approval of Ext.P5 appointment was pending, that this Court passed Ext.P3 judgment directing consideration of approval of appointment of the 2nd petitioner by Ext.P1 appointment Order without reference to Ext.P2 Government Order. In compliance with the said judgment, the DEO approved Ext.P1 appointment for the period from 1.7.2004 to 4.6.2006 and refused to approve Ext.P5 appointment from 5.6.2006 on the ground that at the time of that appointment there was an economic ban against appointment in aided schools. Ext.P5 appointment was refused to be approved by Ext.P7 order. Against the same, an appeal filed before the Deputy Director of Education was rejected by Ext.P8 order. The Director of Public Instructions rejected a further appeal by Ext.P9 order. By Ext.P10, the W.P.(C)No.8936/08 3 Government rejected the revision also . While so, the DEO passed another order, Ext.P11, in respect of Ext.P1 appointment order. Against Ext.P11 order, an appeal was preferred before the Deputy Director of Education, which was rejected by Ext.P13 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “a) to issue a writ of certiorari or other appropriate writ, order of direction to quash Exts.P7 to P11 and P13 to the extent it denies approval of appointment to the 2nd petitioner from 5.6.2006 onwards as HSA (Malayalam) in the school managed by the 1st petitioner; b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to approve the appointment of the 2nd petitioner as HSA (Malayalam) w.e.f.5.6.2006 onwards treating that the 2nd petitioner as a person continuously working in that post w.e.f.1.7.2004 onwards without having any break of service; c) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to sanction and disburse the salary and other consequential benefits attached to the post of HSA (Malayalam) w.e.f. 5.6.2006 onwards to the petitioner”. 2. The 2nd respondent has filed a counter affidavit supporting the impugned orders. According to the 2nd respondent, as per Ext.P3 judgment, Ext.P1 appointment was approved from 1.7.2004 to 4.6.2005. Since on 5.6.2006 the 2nd petitioner was appointed to a later additional division W.P.(C)No.8936/08 4 vacancy, Ext.P5 appointment dated 5.6.2006 in the additional division vacancy could not have been approved because of the economic ban, is the contention raised. 3. I have considered the rival contentions in detail. I am of opinion that the re-appointment of the 2nd petitioner by Ext.P5 order dated 5.6.2006 was totally unnecessary because there was already an existing vacancy with effect from 1.7.2004 to which only the 2nd petitioner was appointed by Ext.P1 order. That approval should continue as long as the student-strength warrants continuance of that post. As on 5.6.2006, the post to which the 2nd petitioner was appointed by Ext.P1 still continued. But, the Manager issued Ext.P5 appointment order only because at that time Ext.P1 appointment had not yet been approved and the Manager thought that since there is an additional division vacancy, the 2nd petitioner had to be at least adjusted against the said vacancy pending consideration of the challenge against the refusal to approve Ext.P1 appointment on the basis of Ext.P2 Government Order. Once this Court by Ext.P3 judgment held that the application of Ext.P2 Government Order to Ext.P1 appointment is unsustainable and approval of Ext.P1 W.P.(C)No.8936/08 5 appointment has to be considered dehors Ext.P2 Government Order, then Ext.P1 appointment has to be approved from 1.7.2004 onwards as long as that vacancy subsists without restricting it up to 4.6.2006. Nobody has a case that the vacancy to which Ext.P1 appointment was made terminated on 4.6.2006 and therefore the petitioner was appointed in another vacancy by Ext.P5. What happened was that Ext.P5 appointment was in a still new additional division vacancy in addition to the vacancy to which the 2nd petitioner was appointed by Ext.P1 order. The whole thing happened only because Ext.P1 appointment was not approved and Ext.P3 judgment was passed only on 20.9.2007. In the circumstances, I am of opinion that Ext.P1 appointment should have been approved by the DEO without any restriction of period as long as that vacancy subsists. The separate approval of appointment of the 2nd petitioner by Ext.P5 with effect from 5.6.2006 was totally unnecessary once Ext.P1 appointment order is approved. 4. In the above circumstances, the impugned orders are quashed. The 3rd respondent DEO is directed to approve Ext.P1 appointment of the 2nd petitioner with effect from W.P.(C)No.8936/08 6 1.7.2004 without any limitation of period as long as there is a vacancy in the School for continuation of the 2nd petitioner as HSA(Malayalam) without reference to the subsequent appointment of Ext.P5 appointment order. Orders in this regard shall be issued and monetary benefits due to the petitioner consequent thereupon disbursed to the 2nd petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.8936/08 7 W.P.(C)No.8936/08 8