IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 799 of 2010()
1. THE MANAGER,
... Petitioner
Vs
1. K.P. BINDU, NARAYANALAYAM,
... Respondent
2. SECRETARY TO GOVERNMENT,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. C.P. REENA, HSA (MALAYALAM),
For Petitioner :SRI.P.M.PAREETH
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :02/06/2010
O R D E R
C.N.RAMACHANDRAN NAIR
&
P.S.GOPINATHAN, JJ.
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Writ Appeal Nos.799 & 800 of 2010.
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Dated this the 2nd day of June, 2010.
COMMON JUDGMENT
Gopinathan, J.
These appeals are preferred against the common
judgment in OP.No.650/2003 and OP.No.13816/2003. Since
the bone of contention in both appeals is one and the same,
the judgment impugned is common and the parties, except
the 4th respondent, are same, we are disposing these
appeals by this common judgment. The appellant is the
petitioner in OP.650/03 and the 3rd respondent in
OP.13816/03. OP.13816/03 was filed by the first
respondent in WA.799/2010. She is the 3rd respondent in
OP.650/03 as well as in the other appeal. The appellant is
the Manager of Mambaram Higher Secondary School.
WA.Nos.799 & 800/10.
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Smt.K.P.Bindu, the first respondent in WA.799/2010 was
appointed as a High School Assistant (Mal.) in the school
run by the appellant with effect from 24.8.2000 in a vacancy
that arose due to the promotion of Smt.Baby Sulekha, a
High School Assistant as Higher Secondary School Teacher
under the very same management. The proposal for
appointment was forwarded by the appellant to the 3rd
respondent in WA.No.799/2010 who is the District
Educational Officer. The 3rd respondent rejected the
proposal for the reason that there is a protected teacher
who is entitled to a lien under Rule 51A of the KER. Being
aggrieved, the first respondent in WA.799/2010 preferred a
revision petition before the Government. Since there was
delay in disposal of the revision preferred by her, she
approached this Court with OP.No.30673/01, the copy of
which judgment is marked as Ext.P1. This Court by Ext.P1
directed the State to dispose her representation at the
earliest. It was further directed that any action taken by
WA.Nos.799 & 800/10.
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the appellant in the meanwhile would be subject to the
decision taken by the Government on the representation
made by the first respondent. The Government by order
dated 19.10.2002, copy of which was marked as Ext.P2 in
OP.13816/03 and Ext.P7 in OP.650/03, directed the
appellant to appoint the first respondent in WA.799/2010.
Seeking an order directing the appellant to implement
Ext.P7 order, OP.13816/03 was preferred. Seeking an order
to set aside the very same order, ( Ext.P2) OP.650/03 was
filed. In OP.13816/03, Ext.P4 order issued by the District
Educational Officer declining the appointment of the
petitioner therein was also assailed.
2. By common judgment dated 9.12.2009, OP.650/03
was dismissed. The other writ petition was allowed
quashing Ext.P4 order and directing the District
Educational Officer to implement Ext.P2 and approve the
appointment of the petitioner therein. Now these appeals.
3. In preferring the appeal there is delay of 116
WA.Nos.799 & 800/10.
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days. To seek an order to condone the delay, petitions were
filed. The reason stated for condoning the delay is that
there occurred some delay to formulate an opinion to prefer
the appeals. Though, we are not satisfied with the reasons
stated, we find that it would be just and appropriate to go
into the merits of the appeal. Hence we condone the delay
in filing the appeals.
4. The fact that the first respondent in the first
appeal was appointed by the appellant as HSA (Mal.) is not
disputed. Her qualification is also not disputed. Now, the
only challenge is that there is no vacancy as on the date of
the appointment. In the light of the pleadings, we find that
it is not at all necessary to go deep into that aspect. In the
appeal memorandum in Ground A, the appellant had stated
that in the vacancy created by promotion of Smt.Baby
Sulekha, Sri.S.Radhakrishnan, the 4th respondent in the
WA.800/2010 was appointed in compliance of the judgment
in OP.35586/01 dated 10.4.2002, the copy of which is
WA.Nos.799 & 800/10.
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marked as Ext.P3 in OP.13816/2003. It is further stated
that in a newly created vacancy, one Dinesh Kumar was
appointed in the academic year 2001-’02. Even if there is
no vacancy as on the date of appointment, before
appointing another person, in the next academic year, the
appellant should have given priority to Smt.K.P.Bindu,
whom the appellant appointed during the previous year. In
the above circumstance, we find that even if there was
no vacancy during the year 2000-’01, there occurred
vacancy in the next academic year itself. We had
mentioned earlier that in Ext.P1 judgment in
OP.30673/01 there is a direction that any action taken
by the appellant during the delay in taking a decision by
the Government shall be subject to the decision of the
Government. Ext.P2 being dated 19.10.2002, it can be
seen that the appointment of Sri.Dinesh Kumar is during
the intermittent period. Such being the facts revealed
WA.Nos.799 & 800/10.
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out, there is no merit in the contention that there was
no vacancy to approve the appointment of
Smt.K.P.Bindu. The District Educational Officer
declined to approve the appointment of Smt.K.P.Bindu
for the reason that Smt.C.P.Reena, the 4th respondent
in WA.799/2010 is awaiting appointment as a protected
teacher. Now, the appellant admitted that she is not
advancing any claim. Hence the appointment of
Smt.K.P.Bindu would not infringe the right of
Smt.C.P.Reena. We find no merit in these appeals.
The District Educational Officer, Thalassery shall
approve the appointment forthwith. Since it is
submitted that Smt.K.P.Bindu had not been working in
the school since October, 2000, we find that her service
benefits can be limited from the date of commencement
of her continued service. But, it is made clear that
for the purpose of lien, her appointment shall take
WA.Nos.799 & 800/10.
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effect from the date of Ext.P2. Writ Appeals are
dismissed with the above clarification. No order as to costs.
C.N.RAMACHANDRAN NAIR
(Judge)
P.S.GOPINATHAN
(Judge)
kvs/-