IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WA.No. 179 of 2007 --------------------------- (AGAINST THE JUDGEMENT IN O.P. NO. 3685/1999 DTD. 23/11/2006 OF THIS HON'BLE COURT) .................... APPELLANT/ 3RD RESPONDENT: ----------------------------------------------- V.S.VARDA, W/O.GOPAKUMARAN NAIR, AGED 43 YEARS, HIGH SCHOOL ASSISTANT (MATHS), KOTTAPPURAM HIGH SCHOOL, PARAVOOR, KOLLAM DISTRICT. BY ADVS. MR.V.A.MUHAMMED, MR.K.E.HAMZA. RESPONDENTS/ PETITIONER AND RESPONDENTS 1, 2 AND 4: ----------------------------------------------------------------------------------------- 1. SMT.C.S.ANITHA, HIGH SCHOOL ASSISTANT (MATHS), KOTTAPURAM HIGH SCHOOL, PARAVOOR, QUILON DISTRICT. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, QUILON DISTRICT. 4. THE MANAGER, KOTTAPURAM HIGH SCHOOL, PARAVOOR, QUILON DISTRICT. R2 & R3 BY GOVT. PLEADER MR. NOBLE MATHEW, R1 BY SMT. V.P. SEEMANDINI, SENIOR ADVOCATE & ADV. SMT. K.P. GEETHAMANI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NO: 179 OF 2007 ----------------------------------------------------------------------------------- Dated this the 23rd January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The third respondent in the original petition is the appellant. The first respondent herein was the petitioner. The brief facts of the case are the following:- 2. The first respondent was appointed as HSA (Maths) in the fourth responden'st school from 11.6.1990 to 14.8.1990. The appellant was appointed as UPSA from 11.6.1990 to 20.8.1990. The appointment of the appellant was approved and, therefore, she was a Rule 51A claimant for the post of UPSA. The appointment of the first respondent remained unapproved which was finally approved only in 2003 as per the direction of this Court in judgment dated 7.8.2003 in O.P.19273/1995. While so, during the academic year 1994-95 a new post of HSA (Maths) was sanctioned. Two vacancies in the existing post of HSA Social Studies also arose, as a result of retirement of an HSA Social Science and promotion of another HSA Social Science as Headmaster. One UPSA Rajeswariamma was promoted as HSA Social Studies on 6.6.1994. W.A.No: 179/2007 2 The HSA (Maths) post was filled up by appointing the first respondent on 6.6.1994 as a candidate from the open market because at the relevant time her earlier spell of appointment was remaining unapproved. The appellant was appointed again as UPSA in a leave vacancy between 3.1.1994 and 5.1.1995 and on regular basis from 6.1.1995. According to the appellant the vacancy in which she could be accommodated in the post of UPSA was available from 6.6.1994 but it was kept vacant and she was promoted only on 6.1.1995. The said submission is seriously disputed by the first respondent. 3. According to the first respondent in fact the vacancy claimed by Rajeswariamma was occupied by an HSA Natural Science hand. The same was challenged by Rajeswariamma and later alone Rajeswariamma was promoted as HSA Social Studies. 4. The appellant pursued her claim for appointment as UPSA with effect from 6.6.1994 and also further promotion as HSA (Maths). The claim of the appellant for appointment as UPSA from 6.6.1994 was raised before the DPI. The said officer by order dated 16.9.1995 directed the manager to consider her claim. Pursuant to that the manager issued Ext.P3 rejecting her claim. Later there W.A.No: 179/2007 3 was a change of management. The new manager by Ext.P4 order dated 28.2.2007 appointed the appellant as HSA (Maths) with effect from 15.7.1994 and it was approved by the DEO on 16.6.1997. The first respondent came to know that Ext.P4 order was issued based on Ext.P5 order of the DPI dated 1.2.1999 in favour of the appellant. 5. This writ petition was filed by the first respondent herein challenging Exts.P4 and P5 as those orders will affect her seniority in the cadre of HSA. Learned Judge quashed those orders and allowed the writ petition. Challenging the judgment of the learned Single Judge the present writ appeal is filed. Learned counsel for the appellant submitted that the appointment of Rajeswariamma as HSA Social Studies has been approved with effect from 6.6.1994 by the District Educational Officer, Kollam by his order B1.2661/95/K.Dis. Dated 30.5.1995. Therefore there is nothing wrong with the impugned orders, it is submitted. In view of the said development the appellant was entitled to be appointed as UPSA on 6.6.1994 and should have been promoted as HSA immediately. So, the appellant prayed for reversing the judgment of the learned Single Judge. W.A.No: 179/2007 4 6. We notice that in view of the judgment of this Court in O.P.19273/95 the first respondent became a 51A claimant for the post of Mathematics which arose on 6.6.1994. Even if the contention of the appellant is accepted she became a 51A claimant for the post of UPSA which arose on 6.6.1994. The vacancies in the post HSA Social Studies has to be filled up by promoting the UPSA and the HSA (Maths) vacancy has to be filled up by appointing the 51A claimant. Only thereafter the appellant could have been accommodated in the vacancy of UPSA. So, the claim of the appellant, who is a 51A claimant for the post of UPSA as on 6.6.1994, for the post of HSA which arose on 6.6.1994 is plainly untenable. If that contention is accepted, then, if a 51A claimant to the post of UPSA, who is qualified for appointment as HSA is available in a school, he should be treated as a 51A claimant for the post of UPSA and a 43 claimant for the post of HSA simultaneously. Rules do not contemplate for such a situation. The first respondent is entitled to have her appointment approved as HSA (Maths) from 6.6.1994. So, the orders affecting her appointments passed by the manager and the DPI (Exts.P4 and P5 respectively) were rightly quashed by the learned Single Judge. W.A.No: 179/2007 5 7. In the result the appeal is dismissed. But the dismissal of the appeal will not affect the contentions of the appellant to claim approval of her appointment as UPSA with effect from 6.6.1994. Even if her appointment is approved with effect from that date, the same shall not affect the first respondent or the approval of her appointment as HSA (Maths) from 6.6.1994. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: