Jenany J.R vs S.Rajeevan & Ors

4. To decide the aforesaid controversy, factual matrix required to be mentioned is as under:

5. A vacancy to the post of High School Assistant, (in short, H.S.A.) (Hindi) arose on 1.7.2003, in the Guhanandapuram School run by Devaswom Committee. On 10.8.2003, an advertisement for selection of a teacher for the said post was issued by the management. On coming to know about the vacancy, the appellant herein applied for the said post, since according to her, she possessed all the requisite qualifications on the relevant date. She was called for interview. She was appointed H.S.A (Hindi) vide appointment order dated 11.9.2003, issued by the Manager of the School. The appointment order indicated that she was to join duty within 15 days. Since appellant was under medical rest, on account of her recent delivery, she requested the management C.A. @ SLP(C) No.23777 of 2008 3 for grant of further time to join duty, which was acceded to by the management.

6. Respondent No.1, S. Rajeevan was already working as Lower Grade Hindi Teacher in the said school but had not passed the test which would have enabled him to possess requisite qualification and had applied for re-evaluation. However, he was declared 'pass' on 23.9.2003, which would enable him also to stake his claim for appointment to the said post of H.S.A on which appellant was given appointment. The aforesaid date would clearly reveal that on the date vacancy had arisen i.e. 1.7.2003, respondent No.1 was not a duly qualified candidate.

8. Aggrieved by the appointment of the appellant, respondent No.1 filed W.P(C)No. 33575 of 2003 before the High Court of Kerala. Vide order dated 27.10.2003, High Court disposed of the Writ Petition filed by respondent No.1 on the admission made by Government Counsel that his representation would be considered on merits in accordance with law. This was first round of litigation. Pursuant to the order passed by the High Court, his representation was decided.

10.Feeling aggrieved by the said order passed by C.A. @ SLP(C) No.23777 of 2008 5 District Education Officer, respondent No.1 filed Revision Petition before the Government but it also met the fate of dismissal. The relevant part of the order dated 04.02.2005 is reproduced hereinbelow:

13. Feeling aggrieved thereof, respondent No.1 filed a writ appeal before Division Bench of the said Court. Vide judgment and order dated 6.8.2008 in W.A. No.2425 of 2005, the order passed by learned Single Judge has C.A. @ SLP(C) No.23777 of 2008 7 been set aside and quashed and direction has been issued to appoint respondent No.1 as H.S.A (Hindi) w.e.f. 16.9.2003, the date on which he became qualified to hold the post. Necessary directions were issued that within 30 days from the date of receipt of the order, his appointment order be issued. Further direction was given for disbursement of salary and allowances payable to him within further period of 30 days thereafter. Thus, the writ appeal filed by respondent No.1 was allowed, order of learned Single Judge, dismissing his writ petition was set aside and quashed and all the reliefs claimed in his writ petition were granted to him.

12. For the aforesaid reasons, writ petition filed by respondent No.1 came to be dismissed by learned Single Judge.

20. We may profitably quote a passage from Craies on Statute Law:-

To reiterate, we may once again emphasise that after careful scanning of Note (2), the obvious is the date when the vacancy occurs and not subsequent events that might have taken place after the date vacancy had occurred.

23. Thus, looking to the matter from all angles, we are of the considered view that the impugned order passed by Division Bench cannot be sustained. The same C.A. @ SLP(C) No.23777 of 2008 11 is hereby set aside and quashed, instead the order passed by learned Single Judge is restored meaning thereby that the writ petition preferred by respondent No.1 stands dismissed.

24. The appeal therefore, is allowed. Parties to bear their respective costs.

May 03, 2010.