IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27270 of 2003(U)
1. V. RESHMI, U.P.S.A.,
... Petitioner
Vs
1. THE DIRECTOR OF PUBLIC INSTRUCTION,
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE MANAGER, A.G.R.M.H.S.S.,
4. B. SURESH, H.S.A. (MATHS),
5. P.K. SAJEENA, U.P.S.A.,
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :SRI.B.RAGUNATHAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :09/07/2010
O R D E R
C.T.RAVIKUMAR, J.
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W.P.(C) No. 27270 of 2003 U
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Dated this the 9th day of July, 2010
J U D G M E N T
The petitioner was appointed as Upper Primary School
Assistant in a regular vacancy in A.G.R.M.H.S.S., Vallikunnam on
24-08-1998. Prior to the said appointment, she had worked in the
said school against a leave vacancy from 30-06-1998 to 05-08-
1998. The aforesaid appointments were approved by the
competent education authorities. While so, a vacancy of H.S.A.
(Mathematics) arose in the school on 24-08-2001 consequent to
the availing of leave without allowance for five years by one
Smt.Lathakumari. She had actually availed leave for five years
from 24-08-2001. According to the petitioner, she was the rightful
claimant under Rule 43 of Chapter XIV-A of the Kerala Education
Rules to be appointed against the said vacancy. However, the
third respondent appointed the fourth respondent against the said
post of H.S.A. Aggrieved by the appointment of the fourth
respondent, the petitioner submitted Ext.P1 representation before
the second respondent requesting not to approve the appointment.
However, no action was taken thereon. The fifth respondent
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raised a claim for appointment against the aforesaid post and she
had approached this Court by filing O.P.No.28869/2001,
challenging the appointment of the fourth respondent as H.S.A.
(Mathematics). The said original petition was disposed of along
with certain other connected original petitions and
W.A.No.621/2002 as per common judgment dated 20-09-2002. In
terms of the aforesaid common judgment dated 20-09-2002, the
second respondent passed Ext.P3 order dated 27-05-2003. It is
the contention of the petitioner that as per Ext.P3, the second
respondent has recognised the rightful claim of the petitioner. It
was found therein that the petitioner is senior to the fifth
respondent and, therefore, only in case, the petitioner relinquished
her claim for promotion, the fifth respondent could claim for such
promotion. In the meanwhile, the fourth respondent, who was
actually appointed against the aforesaid vacancy, approached this
Court by filing O.P.No.22510/2003. His contention therein was
that his appointment against the vacancy that occurred on 24-08-
2001 was also approved and, therefore, he is entitled to get salary
attached to the said post. The said original petition was disposed
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of, on 15-07-2003, directing the second respondent to take action
in the matter of disbursement of salary. Thereupon, the second
respondent conducted a hearing in the matter on 16-08-2003. The
petitioner has raised all his contentions before the second
respondent and contended that the appointment of the fourth
respondent ignoring his better claim was illegal and liable to be
interfered with. According to the petitioner, though a hearing was
conducted on 16-08-2003, no action was taken by the second
respondent either to cancel the appointment of the fourth
respondent and to promote the petitioner against the said post. It
is in the said circumstances that the petitioner has approached
this Court with a prayer to quash the order appointing the fourth
respondent and its approval. The further prayer of the petitioner is
that she should be declared as the rightful claimant entitled to get
promotion under Rule 43 of Chapter XIV-A of the Kerala Education
Rules as H.S.A.(Mathematics) in the vacancy that arose on 24-08-
2001 in the school.
2. A counter affidavit has been filed by the first
respondent in this writ petition. The fact that a leave vacancy
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occurred on 24-08-2001 in the category of H.S.A.(Mathematics) in
the third respondent’s school has been admitted thereunder. It is
also stated therein that the fourth respondent, who was appointed
against the aforesaid vacancy, was a fresh hand. A scanning of
the statement in the counter affidavit would reveal that virtually the
first respondent supports the contentions raised by the petitioner.
Even according to the first respondent, the petitioner was the
rightful claimant against the said post and it was overlooking the
claim of the petitioner under Rule 43 of Chapter XIV-A of the
Kerala Education Rules that the third respondent appointed a
fresh hand, the fourth respondent, against the said vacancy. It is
also stated thereunder that based on Ext.P1 representation
submitted by the petitioner, the first respondent found the
appointment of the fourth respondent as irregular and accordingly,
the salary due to the fourth respondent was not paid. That apart,
it is stated thereunder that the first respondent requested the
second respondent to cancel the irregular appointment of the
fourth respondent as per letter No.B4-8977/02 dated 24-07-2003.
It is also admitted thereunder that in the light of the common
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judgment in O.P.No.28869/2001 and W.A.No.621/2002 and
connected cases, the second respondent considered the rival
claims and issued Ext.P3 order, confirming the rightful claim of the
petitioner for appointment to the post of H.S.A.(Mathematics)
under Rule 43 of Chapter XIV-A of the Kerala Education Rules
against the aforesaid vacancy. Further, it is stated thereunder that
pursuant to the judgment in O.P. No.22510/2003 filed by the fourth
respondent herein, the second respondent has conducted a
hearing on 16-08-2003. After hearing the petitioner, the fourth
respondent and others concerned, the second respondent found
the petitioner as the rightful claimant for the aforesaid post and
accordingly rejected the claim of the fourth respondent herein for
salary.
3. Evidently, the fourth respondent is a fresh hand and
the third respondent has appointed the fourth respondent against
the leave vacancy that occurred on 24-08-2001. According to me,
the action on the part of the second respondent in issuing Ext.P3
and finding the petitioner as the rightful claimant for appointment
against the aforesaid vacancy is in tune with the relevant
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provisions under the Kerala Education Rules. Being a fresh hand,
the appointment of the fourth respondent against the vacancy that
occurred on 24-08-2001 could not have been found legal. That
apart, in compliance with the directions in O.P. No.22510/2003,
the second respondent considered the request of the fourth
respondent and rejected his claim for salary. In the case of the
fifth respondent, evidently, as per Ext.P3, it was found that the
petitioner is senior to the fifth respondent and, therefore, only in
case the petitioner relinquished her claim for promotion, the fifth
respondent could aspire for a promotion. In fact, as is obvious
from the counter affidavit filed by the first respondent, the
competent authorities found the petitioner as the rightful claimant
against the said post and rightly rejected the claim of the others.
4. Despite the receipt of notice in this proceedings,
respondents 4 and 5 did not choose to appear before this Court in
the proceedings. The third respondent Manager did not file any
counter affidavit in this writ petition. As noticed hereinbefore, the
first respondent, who filed a counter affidavit, virtually supported
the claim of the petitioner. It is stated thereunder that the second
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respondent has found the petitioner as the rightful claimant for
appointment against the said vacancy that occurred on 24-08-
2001. However, the prayer of the petitioner to quash the order
appointing and approving the appointment of the fourth
respondent cannot be considered for the simple reason that the
said order was not produced before this Court. However, as
already noticed, the fourth respondent did not choose to appear
and defend the case despite receipt of notice in this writ petition.
That apart, the authorities, based on decisions of this Court on
earlier occasions, held the petitioner as the rightful claimant for the
post of HSA(Mathematics) occurred on 24-08-2001 and rightly
rejected the claims of respondents 4 and 5.
5. In the said circumstances, I am of the view that the
petitioner is entitled to get the declaration sought for. Accordingly,
it is declared that the petitioner was the rightful claimant entitled to
get promotion under Rule 43 of Chapter XIV-A of the Kerala
Education Rules as H.S.A.(Mathematics) in the leave vacancy that
arose on 24-08-2001. Consequently, there will be a further
direction to respondents 1 and 3 to cancel the appointment and
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approval of appointment given to the fourth respondent as H.S.A.
(Mathematics) against the aforesaid vacancy that arose on 24-08-
2001. The petitioner will be entitled to service benefits flowing out
of this judgment.
The writ petition is disposed of as above.
Sd/-
(C.T.RAVIKUMAR, JUDGE)
aks
// True Copy //
P.A. To Judge