IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 154 of 2006(A)
1. V.J.SREEKUMAR,
... Petitioner
Vs
1. ASST. DIRECTOR(GENERAL),
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE MANAGER,
5. B.PRASAD,
For Petitioner :SRI.C.HARIKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :25/02/2009
O R D E R
K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ.
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W.A.No.154 OF 2006
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Dated this the 25th day of February, 2009
J U D G M E N T
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Balakrishnan Nair, J.
The writ petitioner, in W.P.(C) No.15663/2005, is the
appellant. The respondents were the respondents in the writ
petition. The appellant filed the writ petition, challenging
Ext.P8 order of the Director of Public Instructions, directing the
appointment of the 5th respondent in the vacancy of H.S.A
(Sanskrit) in the 4th respondent’s school, which arose on
29.11.2001.
2. The brief facts of the case the following:
The appellant was, a Lower Grade Sanskrit Teacher,
eligible for appointment as H.S.A. Sanskrit, under Rule 43B of
Chapter XIVA of the K.E.R. When a vacancy arose on
29.11.2001, in the post of H.S.A. Sanskrit, the petitioner was
appointed. The 5th respondent staked his claim for re-
appointment as a protected teacher, on the strength of G.O.(P)
W.A.No.154/2006 2
No.112/2001/G.Edn. dated 26.3.2001. The Deputy Director by
Ext.P3 order dated 29.7.2002 directed to recall the 5th
respondent and accommodate in that vacancy. Appellant
submits, he challenged that order before this Court by filing
O.P.No.31075/2002. There was an interim stay of Ext.P3 in that
writ petition. Apparently, based on the said interim order, the
appointment of the petitioner as H.S.A. (Sanskrit) was approved,
on 30.11.2004, with effect from 29.11.2001. Challenging the
said order, the 5th respondent moved the D.P.I. by filing a
revision. The said revision, after hearing both sides, was allowed
by Ext.P8. The approval of appointment of the petitioner was
cancelled, as per Ext.P8. There was a further direction to recall
the 5th respondent, who was at that time working in
Kalluvathukkal Panchayat High School on deployment. The
appellant contended that the 5th respondent is only a retrenched
teacher and therefore a Rule 51A claimant. The petitioner being
a Rule 43B claimant, he is entitled to get preference when a
vacancy arises in the cadre of H.S.A. The appellant also relied
on Ext.P1 judgment, wherein the 5th respondent’s claim as
against the promotion of another Lower Grade Sanskrit Teacher
W.A.No.154/2006 3
as H.S.A. was rejected. The official respondents and the 5th
respondent supported the order of the D.P.I, Ext.P8.
3. The learned Single Judge, after hearing both sides,
dismissed the writ petition holding that the 5th respondent being
a retrenched teacher with 7 years service is entitled to get
preference. Aggrieved by the judgment of the learned Single,
this writ appeal is filed. The appellant reiterated the
contentions, which he unsuccessfully canvassed before the
learned Single Judge.
4. Whether a claim under 43B or 51A will prevail does
not arise in this case. A vacancy for promotion or direct
recruitment arises only after accommodating a protected
teacher. The orders issued, concerning accommodation of
protected teachers, can be traced to the powers of the
Government under Rule 14 of Chapter XXIII of the K.E.R. Apart
from that, the Government have powers to relax the rigour of
any rule, in view of Rule 3 of chapter I of the K.E.R. So, we are
of the view that there will be no vacancy to accommodate the
W.A.No.154/2006 4
appellant/writ petitioner before accommodating a protected
teacher like the 5th respondent. Therefore, the challenge against
Ext.P8 fails and the writ appeal is accordingly dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.L.JOSEPH FRANCIS, JUDGE)
ps