IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WA.No. 1037 OF 2008() --------------------- AGAINST THE JUDGEMENT IN OP.25157/2000 Dated 06/07/2007 APPELLANT: 1ST RESPONDENT IN O.P. --------------------------------- THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SHANTHI NAGAR, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. R. LAKSHMINARAYANAN. RESPONDENTS: PETITIONER & RESPONDENTS 2 TO 6 -------------------------------------------- 1. AUGUSTINE.M.J., HIGH SCHOOL ASSISTANT (MALAYALAM), P.H.S.A.PT., HIGHER SECONDARY SCHOOL, KAKKOV, VAZHAYOOR.P.O., MALAPPURAM DIST. (VIA), RAMANATTUKARA. 2. THE MANAGER, P.M.S.A.P.T. HIGHER SECONDARY SCHOOL, MALAPPURAM DISTRICT,. 3. P. SANTHA, H.S.S.T., P.M.S.A.P.T. HIGHER SECONDARY SCHOOL, KAKKOV, VAZHAYOOR.P.O., )VIA, RAMANATTUKARA, MALAPPURAM DIST. 4. P.AMMED, H.S.S.T., P.M.S.A.P.T., HIGHER SECONDARY SCHOOL, KAKKOV, VAZHAYOOR.P.O. W.A. 1037/2008 2 5. P.P.DIVAKARAN,H.S.S.T., P.M.S.A.P.T., HIGHER SECONDARY SCHOOL, KAKKOV, VAZHAYOOR.P.O.,(VIA) RAMANATTUKARA, MALAPPURAM DIST. 6. PRADEEP KUMAR.K., GOVINDA BHAVAN, KANNADIKOYIL.P.O., BALLUSSERI. ADVS M/S. DEVAN RAMACHANDRAN & SRI.K.M.ANEESH, FOR R1 ADV. SRI.T.K.MARTHANDAN UNNITHAN FOR R2 TO 6 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = W.A. NO. 1037 OF 2008 = = = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF JULY, 2008. J U D G M E N T Raman, J. This is an appeal preferred by the State against the judgment rendered by the learned Single Judge on 6.7.2007 in O.P. 25157/2000. Petitioner in the writ petition was an approved High School Assistant in an aided school of which the second respondent was the manager. As per the staff fixation order, he was identified as a protected teacher by the Department; but according to him, he was not a surplusage and it was a mistake made in the staff fixation order and he was wrongly treated as a protected teacher and he continued to work in the school as a regular hand. According to him, he is entitled to be considered in the 25% quota for appointment in the Higher Secondary Section. But the manager, going by the departmental orders, treating the petitioner as a protected teacher, proceeded to fill up the vacancy for the post of Higher Secondary School Teacher (Malayalam) by direct recruitment and appointed the 6th respondent in that vacancy. It was while steps were taken to fill up the post by direct recruitment by the Manager that he approached this Court by filing the writ petition seeking to W.A. 1037/2008 :2: quash Ext.P7 advertisement, inviting applications from qualified hands for the post. During the pendency of the proceeding, the 6th respondent was appointed to the post of High School Assistant (Malayalam) with effect from 30.8.2000. Among other things he claimed that his appointment was made as per G.O.(MS) No. 162/98 dated 13.5.1998 and on the basis of the judgment of the apex court in M.M. Dolichan v. State of Kerala ( (AIR 2001 SC 216) his appointment cannot be annulled. The learned Single Judge, in para 3 of the judgment under appeal held as follows: "Having regard to what is aforesaid, the entitlement of the petitioner to the benefits of Exts.P17 to P19 Government Orders and thereby seek that the staff fixation order should be re-modulated, thereby treating him as entitled to be reckoned against the 25% vacancies of HSST needs to be considered. On such consideration, the judgment of the Apex Court in Dolichan (supra)(judgment dated 14.11.2000) would stand forbearing the appointment of the sixth respondent from being interfered with. If that be so, on a review of the staff fixation by the Director, Exts.P17 to P19 Government Orders will have to be applied and thereby, the entitlement of the petitioner will be duly recognised and given effect to, while the appointment of the sixth respondent would not be liable to be disturbed. The net result of the exercise would, obviously, be to ensure that the petitioner and the sixth respondent are HSSTs from the appropriate dates, as may be fixed by the Director." 2. Both the petitioner as well as the sixth respondent are aspirants for the post of HSST(Malayalam) and there is only one post. As such, both W.A. 1037/2008 :3: of them cannot be accommodated against the same post unless a subsequent vacancy arises. So far no such vacancy has arisen and it is unlikely such a vacancy may arise in the near future, based on the assessment of the present situation. Therefore, the State is aggrieved by the directions contained in the judgment in so far as two persons cannot be accommodated against the single post now available. 3. Therefore, the question is as to who is the claimant entitled to the post of HSST (Malayalam) which arose in the year 2000? We have gone through the judgment of the apex court in Dolichan's case (supra) The operative portion of the judgment containing the direction is extracted hereunder: "In the aforesaid premises and keeping in view the fact that the Statutory Rules are in the process of being notified we would dispose of these batch of cases with the following directions: (1) All the teachers in the Private Schools who have been appointed during the pendency of these cases pursuance to the interim order dated 7.12.1999 would be held to be duly appointed to the post and their services will not be annulled. (2) xxxxx xxxxxx xxxxx (3) If there has been any appointment made pursuance to the Government Order of 13.5.1998 as on today those appointments also would continue and will not be annulled. W.A. 1037/2008 :4: (4) There will be no further appointment from any source either in the Private School or in the Government Schools from today for a period of 3 months. (5) xxxxxx xxxxxx xxxxxx 6)xxxxxxxxx xxxxxxx xxxxxx " 4. From the direction as above, it can be seen that the teachers appointed in the private school during the pendency of the case before the Apex Court, pursuant to the interim order dated 7.12.1999 will be considered as duly appointed. Likewise, the appointment made based on the Government Order dated 13.5.1998 as on the date on which the final judgment was rendered would also be entitled to continue and will not be annulled. The second direction pertains to the appointment of teachers in Government School to which we are not concerned with. In the facts of this case, there is no case for either of the parties that the 6th respondent was appointed based on the interim order passed by the Apex Court on 7.12.1999. Learned Counsel Sri. Unnithan, appearing on behalf of the 6th respondent, would contend that the appointment of the 6th respondent is protected by condition No.3 of the Apex Court judgment as quoted above. True that if the appointment of the 6th respondent is based on the Government Order dated 13.5.1998, his appointment cannot be annulled. W.A. 1037/2008 :5: But the question as to whether his appointment is in terms of the Government Order dated 13.5.1998 is certainly to be examined by this Court and if it is found that such appointment is in terms of the Government Order dated 13.5.1998, then the protection ordered by Condition No.3 will be available to his appointment. It is pointed out by the learned counsel appearing for the first respondent herein (petitioner in the O.P.) that in the light of the interim order passed as per Ext.P5, there is no scope for making any appointment by direct recruitment and such appointment, if any, made cannot be treated as legal, in terms of the Government Order. We are not expressing any opinion on the merits of the contention so raised, in the view we are taking. 5. Before protecting the appointment of the 6th respondent, based on the judgment of the Apex Court in Dolichan's case (supra) a finding has to be entered as to whether the 6th respondent was duly appointed to the post of HSST (Malayalam) in terms of the Government Order and if only such appointments are made in terms thereof, that he will be entitled to protection. While considering the said contention, the contention of the petitioner whether any such appointment could have been made in terms of the interim order of this Court will also be considered. We are leaving open this contention to be addressed before the learned Single Judge W.A. 1037/2008 :6: since in the absence of any finding rendered by the learned Single Judge on the aforesaid question, we think it appropriate to send back the matter to the learned Single Judge for consideration. Any other aspect having a bearing on the question whether the 6th respondent was appointed in terms of the Government Order are also left open to be considered by the learned Single Judge. The judgment of the learned Single Judge, for the purpose of such consideration, is set aside. The appeal is disposed of as above. The matter may be posted before the learned Single Judge for hearing. P.R. RAMAN, (JUDGE) 3 56+T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-