IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 19033 of 2008(N) ---------------------------------------- PETITIONER(S): ------------------------- K.RAVEENDRAN, U.P.S.A. ETTUKUDUKKA A.U.P.SCHOOL, P.O.ETTUKUDUKKA, VIA.KARIVALLOOR, KANNUR DISTRICT, RESIDING AT 'INDEEVARAM', ANNUR PADINJAREKKARA, P.O.ANNUR, (VIA), PAYYANNUR, KANNUR DISTRICT. BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO EDUCATION, EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, KANNUR. 3. THE ASSISTANT EDUCATIONAL OFFICER, KANNUR. 4. THE MANAGER, ETTUKUDUKKA AUP SCHOOL, P.O.ETTUKUDUKKA, KANNUR DISTRICT. 5. C.SREELATHA, HEAD MISTRESS, ETTUKUDUKKA, A.U.P.SCHOOL, P.O.ETTUKUDUKKA, KANNUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER MV.V. MANU R5 BY ADV. MR.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19033/2008 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPLY SENT BY THE 4TH RESPONDENT TO THE PETITIONER, DTD. 14/03/2006. P2: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DTD.16/05/2006. P3: COPY OF THE ORDER ISSUED BY RESPONDENT NO.3, DTD. 9/08/2006. P4: COPY OF THE JUDGMENT IN WPC.NO.23716/2006 DTD. 26/10/2007. P5: COPY OF THE REVISION PETITION BEFORE THE 1ST RESPONDENT, DTD. 10/11/2007. P6: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT, DTD. 7/04/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ....................... W.P.(C).19033/2008 ....................... Dated this the 10th day of March, 2010 JUDGMENT The claim of the petitioner is for appointment as Headmaster in the 4th respondent School. 2. Petitioner joined service as UPSA on 17.1.1992. He passed Account Test in 1995 and the Kerala Education Act and Rules Test in 1998. 5th respondent entered service as UPSA in the same School on 20.6.1991. However she passed the Account Test only on 12.1.2006. 3. The Headmaster of the School attained the age of superannuation on 13.7.2005, but continued till the end of the academic year by virtue of Rule 62 of Chapter XIV A of KER. On the basis that the vacancy arose only on 1.4.2006, 5th respondent who had longer service than the petitioner and who had acquired the test qualification as on 1.4.2006, was promoted and was posted as Headmaster. Petitioner's claim for appointment was rejected by Ext.P2. His appeal to the 2nd respondent was also W.P.(C).19033/08 2 rejected by Ext.P3 and his revision to the 1st respondent was rejected by Ext.P6. In these orders, it has been held consistently that although the Headmaster had attained the age of superannuation on 13.7.2005, the date of occurrence of vacancy is only at the end of academic year and as on that date, the 5th respondent was the senior qualified teacher and therefore was appointed. 4. The learned counsel for the petitioner submitted that the date of occurrence of vacancy has to be the date of the Headmaster attaining the age of superannuation and even though the post is to be filled up on a later date, the claim has to be determined with reference to the date of superannuation. On this basis, the learned counsel contends that the view taken in the impugned orders is incorrect. 5. On the other hand, learned counsel appearing for the 5th respondent referred to the Full Bench judgment of this Court in Accountant General v. Kunjamma (2003 (3) KLT 345 [FB] ) and contended that in the case of a person who is entitled to the benefit of Rule 62 of Chapter XIV A of the KER, his W.P.(C).19033/08 3 retirement is postponed till the end of the academic year and the date of occurrence of vacancy is only after he vacates the post. 6. In the case of teachers, even though they attain the age of superannuation during the course of the academic year they retire from service only at the end of the academic year. A vacancy can arise only when the incumbent vacates the post which in the case of teachers happens only at the end of the academic year. The vacancy can fill up only after a vacancy arises. In this case, the post became vacant only on 31.3.2006 and the vacancy arose only with effect from 1.4.2006. As on that date, the 5th respondent was a qualified candidate who was also senior to the petitioner. In that view of the matter, no fault can be found in promoting the 5th respondent to the post of Headmaster. Writ petition is accordingly dismissed. ANTONY DOMINIC, Judge mrcs