IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15969 of 2003(A)
1. C.P. DINESAN, PHYSICAL EDUCATION
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTION,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE DISTRICT EDUCATIONAL OFFICER,
5. THE MANAGER, AIDED MAPLA HIGH SCHOOL,
For Petitioner :SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
For Respondent :SRI.C.P.MOHAMMED NIAS
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :20/10/2008
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No. 15969 of 2003
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Dated this the 27th day of November, 2008
J U D G M E N T
The petitioner was appointed as a Physical Education
Teacher in an aided UP School, of which the 5th respondent is the
manager. According to the petitioner, that vacancy was that of a
teacher who died on 1.10.1992. Another teacher, one
K.K.Musthafa, was appointed to that vacancy, who left service
seeking other employment. It is in that vacancy the petitioner
was appointed. However, the departmental authorities did not
approve the petitioner’s appointment. The appeal before the
Deputy Director of Education was rejected as per Ext.P3. The
petitioner’s revision was also rejected by Ext.P5 order. The
petitioner is challenging Exts. P3 and P5 orders in this original
petition. Subsequently another vacancy arose on 31.3.2005 to
which the manager appointed the additional 6th respondent. The
petitioner is now staking a claim to that post also.
2. The educational authorities, the manager and the
additional 6th respondent oppose the contentions of the
petitioner.
3. I have heard the parties.
w.p.c.15969/03 2
4. The petitioner can validly claim approval of his
appointment only if there was a vacancy to which the petitioner
could have been appointed. Ext.P1 is the staff fixation order for
the year 1992-93. In the same, one post of Physical Education
Teacher was abolished on the death of the incumbent. On
abolition of that post, there is no vacancy to which the petitioner
could have been validly appointed. In so far as Ext. P1 is not
under challenge before me, the petitioner cannot validly claim
approval of his appointment since the vacancy to which the
petitioner has been appointed was abolished by Ext. P1 order.
That being so, I do not find any merit in the challenge against
Exts. P3 and P5 orders.
5. As regards the vacancy which arose on 31/03/2005,
the contention of the petitioner is that the manager cannot after
having appointed the petitioner first, appoint another new person
disregarding the claim of the petitioner. In support of his
contention the petitioner relies on a Division Bench decision of
this Court in Joshi v. Krishna P. Rajan [2006 (4) KLT SN 63
(C.NO.85)]. I have considered the ratio of that decision with
reference to the facts of this case. In that decision what has
w.p.c.15969/03 3
been held is thus:
“When a manager had appointed legally an incumbent to a
temporary or short term vacancy and if he has to make another
appointment in a vacancy of the same post that had arisen later in his
school, necessarily, he has to go by his own commitment and actions.
He cannot deny either promotion or reappointment to an incumbent
earlier appointed by him, contending that order approving that
appointment made by him had not been passed by the time next
vacancy had arisen. It will take some time for the Departmental
authorities to pass orders. In a vacancy that had arisen subsequently,
the Manager had the liability to protect the real rightful claimant.”
The above decision relates to a legal appointment, approval of
which was delayed. That cannot apply to the petitioner’s case in
so far as the petitioner’s appointment was not a valid one, since
that appointment was to a non-existent post. That being so, the
petitioner cannot lay a superior claim to the vacancy which arose
on 31.3.2005, in so far as legally the petitioner and the
additional 6th respondent stands on the same footing. Perhaps
morally what the manager done may be wrong. But that does
not give a legal right to the petitioner which can be enforced as
against respondents 5 and 6. In the above circumstances, I do
not find any merit in the original petition and accordingly, the
same is dismissed.
Sd/-
sdk+ S. SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
w.p.c.15969/03 4
S.SIRI JAGAN, J.
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W.P.(C).No. 15969/2008-A
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J U D G M E N T
27th November, 2008