IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 W.A.No. 2480 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.5087/2007 Dated 07/11/2008 .................... APPELLANT(S)// PETITIONER: --------------------- REJINA PANAYADAN, H.S.A. ENGLISH, KUTHUPARAMBA HIGH SCHOOL, KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S)//RESPONDENTS: ------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. 5. THE MANAGER, KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. 6. S.R.SREEJITH, H.S.A.- ENGLISH, KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. 7. SHEEBA.P., H.S.A.- ENGLISH, KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. 8. K.L.SHYNA, H.S.A.- PHYSICAL SCIENCE, KUTHUPARAMBA HIGH SCHOOL, P.O. THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. 9. VIPINKUMAR, H.S.A.-ENGLISH, KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. 10. BABITHA RAMACHANDRAN, H.S.A.-ENGLISH, KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. R. BINDU. R5 BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE & ADVS. SRI.K.V.PAVITHRAN, SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL R8 & 9 BY ADV. SRI.P.P.RAMACHANDRAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON 10/12/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A. No.2480 of 2008 ------------------------------ Dated this, the 10th day of December, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. She approached this Court challenging Ext.P14 order of the Government, declining to approve her appointment as High School Assistant (English) with effect from 16.2.2005 and also the earlier orders of the District Educational Officer and the Director of Public Instruction. The brief facts of the case are the following: According to the appellant, a vacancy in the cadre of High School Assistant (English) arose in the 5th respondent's school on 1.4.2004. Her qualification was B.A.(English) and B.Ed.(Malayalam). According to her, though the Manager has invited applications for appointment to the post of High School Assistant (for short, 'H.S.A.') (English), by paper publication on 7.1.2005, no candidate with the prescribed qualification W.A. No.2480 of 2008 - 2 - was available for appointment. So, in view of the alternative qualification prescribed under Rule 2(2)(b)(x)(iii) of Chapter XXXI of Kerala Education Rules, the appellant was appointed. But, the District Educational Officer (for short, 'the D.E.O.'), by Ext.P1 order dated 4.7.2005 declined to approve her appointment, on the ground that she was not qualified. On appeal, the Deputy Director by Ext.P5 order dated 23.9.2005 affirmed the said order of the D.E.O. The matter was carried in revision before the Director of Public Instruction (for short, 'the D.P.I.'). The D.P.I. by Ext.P7 order dated 22.2.2006, took the view that there was no vacancy available to accommodate the appellant. On that ground, the revision was dismissed. In the meantime, pointing out the approval of appointment of another teacher as H.S.A.(Physical Science) by accommodating her in the vacancy set apart for H.S.A. (English), the appellant preferred a petition before the D.E.O.. The said petition was dismissed by Ext.P10 communication by the D.E.O. on 27.3.2006. Challenging Ext.P7 and other connected orders, the appellant preferred Ext.P12 revision W.A. No.2480 of 2008 - 3 - before the Government under Rule 92 of Chapter XIVA of Kerala Education Rules. The Government rejected the said revision by Ext.P14 order, stating that the appellant was not having the prescribed qualification. So, the Writ Petition was filed by the appellant challenging Ext.14 and other connected orders of the lower authorities and also seeking consequential reliefs. 2. The learned Single Judge, after hearing both sides, took the view that the appellant/petitioner is qualified. The said finding was entered taking note of the fact that the Manager has issued a public notification inviting applications and no qualified hand with B.Ed. in English was available for appointment. If that be so, the alternative qualification of 'B.Ed. in any subject' can be accepted as sufficient qualification. But, the learned Single Judge held that at the relevant time, that is, during the academic year 2004-05, there was no vacancy available to accommodate the appellant. Ext.P8 is the staff fixation order for the year W.A. No.2480 of 2008 - 4 - 2004-05. As per that order, there were 34 posts of H.S.A. in the core subjects. The same was revised to 35 posts by Ext.P9, applying the teacher-student ratio of 1 : 40. Since the conditions for lowering the teacher student ratio were not present in this case, again the staff fixation order was revised and Ext.P10 order was passed recalling Ext.P9. In view of the existence of 34 posts of H.S.As., notionally there were a few vacancies of H.S.A(English) in the school. Those vacancies may be filled up, if only the teachers in the core subjects vacate the posts and a regular open vacancy is available. The rules do not permit retrenchment of an existing teacher in the core subject to appoint a fresh hand in H.S.A.(English). In view of the above position, we find that the finding of the D.P.I. and the learned Single Judge that there was no post available at the relevant time to accommodate the petitioner when she was appointed has to be upheld. But, the learned counsel for the appellant brought to our notice her pleadings in paragraph 10(a) of the Writ Petition, wherein she has stated as follows: W.A. No.2480 of 2008 - 5 - “10(a). Respondents 6 to 10 are the appointees to the same post in the school. Those appointments are made subsequently. Even now there is vacancy of H.S.A.(English) in the school. (The appointments of, 'sic.') Respondents 6 to 10 are approved. The petitioner's appointment ought to have been approved prior to the approval of their appointment.” Based on the above pleading, the learned counsel submitted that the appellant should have been appointed in the first arising vacancy that was available after the academic year 2004-05. 3. We heard the learned counsel for the Manager and the learned Government Pleader, on this point. But, the said point was not the subject matter of the orders impugned before the learned Single Judge. Therefore, we find that this claim has to be considered by the D.E.O., after affording an opportunity of being heard to the subsequent appointees in the post of H.S.A.(English) from the open market, as they are W.A. No.2480 of 2008 - 6 - likely to be affected, if the appellant is adjusted against the first vacancy that arose after the academic year 2004-05. The learned counsel brought to our notice the decision of this Court in Joshi v. Krishna P.Rajan, 2007(2) KLT SN 63 (Case No.85), wherein it was held that if the appointment of an incumbent is not approved for want of vacancy, the Manager is bound to re-appoint the said person in the next arising vacancy, instead of appointing a fresh hand. These are all matters, which the appellant can bring to the notice of the D.E.O., while staking her claim for the first vacancy that arose after the academic year 2004-05. 4. In the result, the finding of the learned Single Judge concerning non-existence of vacancy to appoint/accommodate the appellant as H.S.A.(English) with effect from 16.2.2005 is upheld. But, the aforementioned claim of the appellant for appointment in the next arising vacancy shall be considered by the 4th respondent, D.E.O., within one month from the date of production of a copy of this W.A. No.2480 of 2008 - 7 - judgment. The appellant may file a representation to the D.E.O. along with a copy of this judgment. The D.E.O. may take a decision on the claim of the appellant for appointment against the first vacancy, which arose after the academic year 2004-05, after affording an opportunity of being heard to the Manager, the respondents 6 to 10 and any other member of the staff of the school likely to be affected. The Writ Appeal is disposed of as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)