K.R. BEETHA Vs. STATE OF KERALA

JUDGEMENT

(1.) Since the issue involved in both these writ petitions is the same they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to the facts and the exhibits is from W.P.(C).No.7065 of 2013.

(2.) The petitioner is a retrenched UPSA who, consequent to her retrenchment, also became a Rule 51 A claimant for the purposes of future appointments in the school. There arose a vacancy to the post of H.S.A Malayalam in the school with effect from 01.06.2010, and as per the Rules then in force, it is the case of the petitioner that he ought to have been appointed as H.S.A to the said vacancy. Inasmuch as the 4th respondent Manager was not inclined to appoint the petitioner to the said vacancy, the petitioner preferred W.P.(C).No.12607 of 2011, which was disposed by Ext.P4 judgment directing the 4th respondent to consider the case of the petitioner and pass appropriate orders. Pursuant to Ext.P4 judgment, the 4th respondent proceeded to pass Ext.P5 order dated 20.06.2011 whereby the 6th respondent, who was a Rule 43 claimant, was held entitled to the vacancy that arose with effect from 01.06.2010. However, by another order Ext.P6 dated 25.06.2011 vis-a-vis the 6th respondent and another protected teacher, the 4th respondent found that it was the protected teacher that had to be given preference for appointment to the said vacancy. As a result of Exts.P5 and P6 orders, therefore, while vis- a-vis the petitioner and the 6th respondent, the 6th respondent was found to have the better claim for the post in question, the 6th respondent himself lost out on the claim to another protected teacher in respect of the same vacancy. Aggrieved by Ext.P5 order, to the extent it found the claim of the 6th respondent superior to that of the petitioner, the petitioner preferred a revision petition before the 2nd respondent. The said revision petition came to be dismissed by an order dated 05.11.2011. The petitioner therefore preferred a further revision before the Government which also came to be rejected by Ext.P11 order dated 18.02.2013. In W.P.(C).No.7065 of 2013, Ext.P11 order of the Government is impugned. It would appear that, during the pendency of W.P.(C).No.7065 of 2013, the educational authorities proceeded to approve the appointment of the 6th respondent as H.S.A. Malayalam to the vacancy that arose with effect from 01.06.2010. The said order of approval of the appointment of the 6th respondent is produced as Ext.P9 in W.P.(C).No.24102 of 2013 and impugned therein.

(3.) Counter affidavits have been filed on behalf of the educational authorities as also by the 6th respondent. In the counter affidavit of the educational authority, Ext.P11 order is sought to be sustained on the basis of the reasons stated therein. In the counter affidavit filed on behalf of the 6th respondent, it is pointed out that the 6th respondent had an approved service as U.P.S.A in the school, initially for the period from 01.09.1999 to 13.01.2000, and thereafter, regular service with effect from 06.06.2001. It is pointed out that this service is as against the service rendered by the petitioner as U.P.S.A, initially in a leave vacancy between 02.06.2004 and 31.08.2004, and thereafter, on regular basis from 15.07.2004 onwards. It is the case of the 6th respondent that, when it comes to the service rendered as U.P.S.A, the 6th respondent is senior to the petitioner and, had the 6th respondent also been a Rule 51 A claimant such as the petitioner then, between the two, the 6th respondent would have been senior for the purposes of staking a claim to the vacancy that arose in the post of H.S.A Malayalam with effect from 01.06.2010. It is pointed out that the seniority of the 6th respondent in the cadre of U.P.S.A had to be recognised by the educational authorities, and it is therefore that Ext.P11 order came to be passed finding the 6th respondent entitled to the vacancy of H.S.A Malayalam that arose with effect from 01.06.2010.