Vidhu P. Vijayan v. The Manager, Rural High School, Thumboor; District Educational Officer, Irinjalakuda; Director of Public Institutions, Thiruvananthapuram; State of Kerala represented by its Secretary to Government, General Education Department, Thiruvananthapuram; C.B. Ashida

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933** ## **WP(C).No. 16030 of 2008 (G) -----------------------------------** ## **PETITIONER(S):** ## **-------------------** ## **VIDHU.P.VIJAYAN,AGED 24, W/O. JYOTHISH M.P., POOKKOOT HOUSE P.O.KANNIKULANGARA, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.MOHANAN** ## **RESPONDENT(S): ---------------------** **1. THE MANAGER, RURAL HIGH SCHOOL, THUMBOOR, P.O.THUMBOOR TRISSUR DISTRICT** **2. THE DISTRICT EDUCATIONAL OFFICER IRINJALAKUDA, POST IRINJALAKUDA.** **3. THE DIRECTOR OF PUBLIC INSTITUTIONS THIRUVANANTHAPURAM.** **4. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **5. C.B.ASHIDA, W/O.BIBIN.S., THARAYIL, AGED 25 YEARS, HIGH SCHOOL ASSISTANT (ENGLISH), RURAL HIGH SCHOOL, THUMBOOR, P.O.THUMBOOR, TRICHUR.** **R1 BY ADV. SRI.M.C.GOPI BY ADV. SRI.K.E.HAMZA R2 TO R4 BY GOVT. PLEADER SRI. BIJU MEENATTOOR R5 BY ADV. SRI.V.A.MUHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 16030/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **P1: COPY OF THE STAFF FIXATION ORDER.** - **P2: COPY OF THE APPOINTMENT ORDER DATED 03/10/2006.** - **P3: COPY OF THE CERTIFICATE ISSUED BY THE MANAGER DATED 03/10/2006** - **P4: COPY OF THE ORDER NO.B5-9574/06 DATED 05/12/2006.** - **P5: COPY OF THE G.O.(P)NO.317/2005/G DATED 17/08/2005.** - **P6: COPY OF THE CERTIFICATGE ISSUED BY THE HEAD MASTER CERTIFYING THAT THE PETITIONER HAD WORKED FROM 30/10/2006 TO 06/07/2007.** - **P7: COPY OF THE REPRESENTATION DATED 10/01/2008.** - **P8: COPY OF THE REPRESENTATION DATED 06/05/2008.** - **P10: COPY OF G.O.(P) NO.10/10/G EDN. DATED 12/01/2010.** - **P11: COPY OF ORDER NO.EC.S./20878/2010/DPI/K.DIS. DATED 09/04/10** - **P12: COPY OF ORDER NO.EC.5/20878/10 DATED 17/06/2010.** - **P13: COPY OF APPROVAL OF APPOINTMENT.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.16030/2008-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 15[th] day of March, 2012`** ## **`J U D G M E N T`** The petitioner herein is aggrieved by the orders by which her approval was rejected and the order by which, in another vacancy, the fifth respondent's appointment was approved. The petitioner was appointed from 03/10/2006 against an anticipated vacancy of High School Assistant (English) during the academic year 2006-07 by the Manager. It is further stated that in the staff fixation order for the academic year 2006-07, one additional post of H.S.A (English) was found eligible but, it was not sanctioned in the light of G.O.(P).No.317/05/G.Edn., dated 17/08/2005. Ext.P5 is the copy of the above Government Order. Ext.P2 is the copy of the appointment order and Ext.P4 is the copy of the order by which, the petitioner's appointment was rejected. It appears that the Manager had filed an appeal against Ext.P4 which was also rejected. 2. The fifth respondent was appointed after one Shri Jacob Joseph K. who was working against a sanctioned post of H.S.A (English) from 2004 onwards was found not qualified for the post. It appears that there was a complaint that he had obtained bogus degree certificate and a vigilance enquiry was instituted against him. He submitted ## **W.P.(C). No.16030/2008** ## **-:2:-** resignation from the said post on 04/01/2008. Thereafter, the petitioner filed a representation as per Ext.P7 seeking for appointment against that vacancy, namely, sanctioned post of H.S.A (English), but the fifth respondent was appointed. The Director of Public Instruction by Ext.P11 order approved the appointment of the fifth respondent. The same is also under challenge. 3. Learned counsel for the petitioner Shri P.V.Mohanan submitted that when the regular vacancy arose in 2008, the petitioner ought to have been preferred. The learned counsel relied upon Rules 51A , 52 and 55 of Chapter XIV A Kerala Education Rules. 4. Learned counsel for the first respondent-Manager Shri M.C. Gopi submitted that the appointment of the petitioner was never approved, she left the service on her own on 06/07/2007 and, therefore, unapproved service will not give any preference. 5. I have considered the rival submissions. True that the petitioner was appointed at the time when staff fixation order found that the schoo1 is eligible for one additional post of H.S.A (English). But, at that point of time, Ext.P5 G.O.(P).No.317/05/G.Edn., dated 17/08/2005 was in force. Therefore, the only course open to the Manager was to get ## **W.P.(C). No.16030/2008** ## **-:3:-** approval/previous sanction from the Government for sanctioning the post and for making the appointment and that was not done. It was in those circumstances, in Ext.P4, the District Educational Officer found that in the light of the restrictions imposed in Ext.P5 Government Order, there is no established vacancy. Therefore, the petitioner was not appointed in an established vacancy. She left the service on her own on 06/07/2007 which fact is not disputed. 6. The learned counsel for the petitioner submitted that the petitioner had to leave the service since she was not getting salary. 7. In fact, as pointed out by Shri M.Sajjad, learned counsel appearing for the fifth respondent, Rule 53 of Chapter XIV A K.E.R provides that a teacher shall not himself terminate his service before the expiry of the term of his appointment without permission of the Educational Officer. This will plainly go against the claims of the petitioner. 8. Learned counsel for the petitioner submitted that Rule 51A does not provide for approval for getting any preference for appointment and reliance is placed upon various Judgments of this Court including the decision of the Apex Court, namely, **Geetha** v. **Geo Thomas [2009 (4) KLT 514]** and **Mary Oommen v. Manager, M.G.M. High School [AIR** ## **W.P.(C). No.16030/2008** ## **-:4:-** **1987 SC 1163]** . Herein, Rule 51A cannot have any application since the rule confers preference to qualified teachers who are relieved as per Rule 49 and 52 or on account of termination of vacancies in future appointments. It is clear from the Judgment of this Court in **Manager, St.Mary's High Schoo1 v. State of Kerala [2004 (1) KLT SN 17 (C.No.21)]** , that for getting preference under Rule 51A, there should be a valid appointment with approval. In **Mary Oommen's case (** _**supra**_ **)** decided by the Supreme Court, the appointment in earlier temporary vacancy of the appellant was an approved one (see para.3). All these circumstances are not applicable in the case of the petitioner. Therefore, the arguments raised by the learned counsel for the petitioner cannot be accepted. In fact, Rule 51, even though relied upon, will not apply here as it provides for relief of a teacher, in terms of seniority, when a vacancy in any category of post terminates. Accordingly, the senior hands will have to be retained in preference to the junior hands with due regard to the requirement of subjects. That also cannot confer any right to the petitioner. Even though Rule 55 was relied upon, plainly, the said rule is not applicable to the facts of this case since what is provided therein is regarding supernumerary and excess teachers. Herein, it is a case where there was no established vacancy as such when ## **W.P.(C). No.16030/2008** ## **-:5:-** petitioner was appointed. 9. Even though, heavy reliance was placed on **Geetha's case [2009 (4) KLT 514]** , I am afraid that the facts of the case will not come to the rescue of the petitioner. The dictum laid down therein that the right of a person whose appointment is yet to be approved will have to be considered by the Manager, cannot be understood divorced from the facts of the said case, as distinct from the facts of the present case. Therein, para.2 will show that the appellant was appointed as U.P.S.A in a maternity leave vacancy from 06/06/2002 to 17/10/2002. Therefore, there was an established vacancy for such appointment. While, the proposal for approval was pending, the subsequent vacancy arose on 02/09/2002, a regular one, but another teacher, the first respondent/writ petitioner was appointed. This Court held that the Manager cannot deny promotion or re-appointment for the reason that the original appointment of the claimant was not yet approved. The same was later approved, also. As far as the petitioner herein is concerned, even going by the staff fixation order Ext.P1, no post was sanctioned which is evident from column 13 of Ext.P1. Even though, the eligibility for an additional post was there, the reason for not sanctioning the post is stated as hereunder:- “not sanctioned in terms of G.O.(P). ## **W.P.(C). No.16030/2008** ## **-:6:-** No.317/05/G.Edn., dated 17/08/2005”. Therefore, there is no established vacancy for making an appointment which is the reason for rejection of approval also. Therefore, the petitioner is a person who was appointed without having an established vacancy. The principles stated in **Geetha's case [2009 (4) KLT 514]** , will not apply herein. 10. Even though, the learned counsel for the petitioner herein vehemently argued that unapproved service will confer preference, I am afraid, the said argument will not come to the help of the petitioner, since the petitioner was not continuing in service when the subsequent vacancy arose on 04/01/2008. Evidently, the resignation vacancy is from 04/01/2008, long after the petitioner got himself out of service by discontinuing his job on 06/07/2007. 11. Even though the learned counsel for the petitioner submitted that the provisions of Kerala Education Rules will come to the rescue of the petitioner, in the absence of any express provisions in the Kerala Education Rules, this Court cannot uphold the right of the petitioner. Herein, the petitioner has chosen to relieve himself from duty without waiting for any competent proceedings being issued by the Manager with the approval of the District Educational Officer. That itself will cut the root of the claim of ## **W.P.(C). No.16030/2008** ## **-:7:-** the petitioner. If it is held that such appointees will get the benefit for accommodation in future vacancies, the same can be misutilised by interested parties. 12. In fact, G.O.(P).No.10/10/Gl.Edn., dated 12/01/2010 provides for certain conditions for approval of appointments in additional division vacancies. The first requirement is that the Manager will have to execute a declaration seeking for revision of staff fixation. Herein, the learned counsel for the Manager submitted that in the next year there was no sufficient students strength and, therefore, no attempt was made in that regard. Apart from that G.O.(P).No.10/10/Gl.Edn., dated 12/01/2010 is no longer in force in the light of G.O.(P).No.199/2011/Gl.Edn., dated 01/10/2011 popularly known as the teachers' package order. Even though the learned counsel for the petitioner prayed that this Court may direct the Manager to comply with the provisions of G.O.(P).No.10/10/Gl.Edn., dated 12/01/2010, as the said Government Order has worked out itself, at this stage, nothing can be done in the matter. 13. For all these reasons, I find no reason to interfere with the orders impugned. The fifth respondent's appointment has been approved on a provisional basis going by Exts.P11 and P12. Since it is held that the ## **W.P.(C). No.16030/2008** ## **-:8:-** petitioner has no right to get appointment in said vacancy, it is upto the District Educational Officer to pass appropriate orders with regard to the approval and payment of salary. The writ petition is therefore, dismissed. No costs. ``` Sd/- ``` ## **`(T.R. Ramachandran Nair, Judge.)`** ## **`ms`**