High Court Kerala High Court

C.P. Dinesan vs State Of Kerala on 20 October, 2008

Kerala High Court
C.P. Dinesan vs State Of Kerala on 20 October, 2008
       

  

  

 
 
  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
                   ==================
          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