IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 WP(C).No. 19860 of 2008(L) -------------------- PETITIONER : -------------------- C.L. DOLLY, W/O.T.D. PAUL, AGED 44 YEARS, HIGH SCHOOL ASSISTANT (MATHS) ST.THOMAS HIGH SCHOOL, THIRUR, THRISSUR DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.T.V.VIJAYARAJAN SRI. M. SAJJAD RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR DISTRICT. 5. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE OF THRISSUR CATHOLIC ARCH BISHOP'S HOUSE, THRISSUR. R1 TO R4 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 19860 of 2008(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE REVISION PETITION OF THE MANAGER. EXT.P2 : COPY OF THE PETITION FILED BY THE MANAGER. EXT.P3 : COPY OF THE G.O.(RT) NO. 408/99/G. EDN. OF THE GOVERNMENT. EXT.P4 : COPY OF THE ORDER NO. 64830/A1/98/G.EDN. OF THE GOVERNMENT. EXT.P5 : COPY OF THE ORDER NO. 27808/A1/99/G1.EDN. OF THE GOVERNMENT. EXT.P6 : COPY OF THE G.O.(MS) NO. 275/99/G. EDN. OF THE GOVERNMENT. EXT.P7 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 3290/2001-N. EXT.P8 : COPY OF THE G.O.(RT) NO. 2288/08/G. EDN. OF THE GOVERNMENT. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.19860 OF 2008 --------------------------------------- Dated this the 8th day of March, 2011. J U D G M E N T The petitioner is aggrieved by the orders culminating in Exhibits P4, P5 and P8 whereby the petitioner's claim for approval of appointment in the leave vacancy of HSA (Maths) was declined. It is submitted by the learned counsel for the petitioner that the issue is covered in favour of the petitioner in the light of Exhibit P6 order passed by the Government and also in the light of the two decisions of the Division Bench of this Court namely, Geetha vs. Geo Thomas (2009 (4) KLT 514) and Arshad Beegum, J.J. vs. Najeeba.A and others (2009 (4) ILR 205). The bare facts necessary for the disposal of the writ petition are the following: 2. The petitioner was initially appointed as Lower Primary School Assistant from 19.10.1992 to 17.12.1992 in the St.Joseph's High School, Parappur. The said appointment was approved which made her a claimant under Rule 51A of Chapter W.P.(C) No.19860/2008 2 XIV-A KER. It is stated that for three different spells from 1/93 to 8/94, the petitioner was appointed and those appointments have been approved. The spell as UPSA started from 26.08.1994 in St.Antony's High School, Puthenpeedika, another school under the same Management. The said appointment was upto 05.06.1995. In the meanwhile, for the period from 19.10.1994 to 22.12.1994 and from 20.01.1995 to 22.03.1995, a leave vacancy of HSA (Maths) arose in St. Thomas High School, Thope and St.Thomas High School, Thiroor under the same management. Even though the petitioner was appointed as such, the appointments were not approved. 3. The Management took up the matter before the Government as per Exhibit P1 and the petitioner took up the matter before the Government as per Exhibit P2. Exhibit P3 is the order passed in the case of another teacher of the very same school and the petitioner even though relied upon the same, it is pointed out that the Government rejected her claim as per Exhibit P4. Even though the petitioner requested to review the same, it was rejected by Exhibit P5. W.P.(C) No.19860/2008 3 4. Learned counsel for the petitioner contended that the principle to be followed in such cases has been reiterated by the Government in Exhibit P6 where the Government clarified that the services of leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. 5. The view taken by the Government in Exhibit P8 is that the petitioner who was working as UPSA against leave vacancy was not a Rule 43 claimant when she was appointed as H.S.A (Maths) on promotion and therefore, the claim is not admissible. 6. In an almost identical situation, a Division Bench of this Court in Geetha vs. Geo Thomas (2009 (4) KLT 514) upheld the claim by pointing out that when a regular vacancy arose, such persons who have been working in the leave vacancy will have to be accommodated. The head note reads thus: “The Manager could have made the appointments/ retrenchments only in accordance with R.51 of Chap.XIV- A of the K.E.R. The Manager could not take shelter behind the plea that when the regular vacancy arose, the appointment of the appellant in the maternity leave vacancy was not approved. The Manager knew that the appointment was in a maternity leave vacancy which W.P.(C) No.19860/2008 4 arose in a post sanctioned as per the Staff Fixation Order of that year, that the appellant was qualified for appointment as U.P.S.A. also and therefore, even if there is delay, the appellant's appointment was going to be approved. Therefore, when the regular vacancy arose, the appellant should have been accommodated in that vacancy and a fresh hand could have been appointed only in the remaining portion of the maternity leave vacancy, in which the appellant was working. As a matter of fact as the remaining period of the said leave vacancy does not have a duration of two months the first respondent could not have been appointed at all, as U.P.S.A., in view of R.7A(3) of Chap.XIV-A of the K.E.R., which says that, the vacancies which have duration of two months or less period shall not be filled up by any appointment. The said two months period has since been amended with effect from 16.4.2005, but, when the appointment of the first respondent was made, the unamended rule was remaining in force”. 7. The decision of the Division Bench in Arshad Beegum, J.J. vs. Najeeba.A and others (2009 (4) ILR 205) relates to appointment in a temporary vacancy of teacher in an aided college and it was held that the said teacher is also entitled to claim appointment in a regular vacancy and for promotion to vacancies arising in higher grades. A declaration was made in the light of the specific provisions of the Kerala University W.P.(C) No.19860/2008 5 (Conditions of Service of Teachers and Members of Non Teaching Staff) First Statute, 1979. 8. Evidently, the principle adopted by the Government in Exhibit P6 should have been applied to the facts of this case and the legal position reiterated by the Division Bench in Geetha's case (supra) therefore will justify the claim for the approval of appointment. In that view of the matter, Exhibits P4, P5 and P8 are quashed. There will be a declaration that the petitioner will be entitled for appointment as H.S.A (Maths) for two spells ie. from 19.10.1994 to 22.12.1994 and from 20.01.1995 to 22.03.1995. There will be a further direction to the District Educational Officer to approve the appointment and disburse the consequential monetary benefits to the petitioner within a period of three months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp