GEETHA S Vs. GEO THOMAS K

JUDGEMENT

(1.) The appellant was the sixth respondent in the Writ Petition, She was appointed as Upper Primary School Assistant (for short, "U.P.S.A.") in the fifth respondent's High School, in a maternity leave vacancy from 6.6.2002 to 17.10.2002. While so, a regular 2.9.2002, in which the first respondent/Writ Petitioner was appointed. The point that arises for decision in this case is, whether the appellant should have been accommodated in the regular vacancy which arose on 2.09.2002 or a fresh hand like the first respondent could have been inducted, as was done in this case. The brief facts of the case are the following:

(2.) As mentioned earlier, the appellant was appointed as U.P.S.A. in a maternity leave vacancy from 6.6.2002 to 17.10.2002. The said appointment was approved by the District Educational Officer (for short, 'D.E.O.') on 12.6.2003. While so, a regular vacancy in the cadre of U.P.S.A. arose, as a result of promotion of one of the U.P.S.A's. on 2.09.2002. The first respondent/writ petitioner was appointed in that vacancy. The D.E.O., by order dated 20.5.2003, approved the said appointment of the first respondent from 2.09.2002 to 31.3.2003 and from 2.7.2003 onwards without any time limit On approval of the first respondent's aforementioned appointment, the appellant/sixth respondent moved the D.E.O. by filing a representation on 10.7.2003, and this Court by judgment dated 15.6.2004 in Writ Petition (Civil) No. 17296 of 2004 directed the D.E.O. to consider the claim of the appellant/sixth respondent. There was some dispute between the parties as to whether the appellant has submitted the representation dated 10.7.2003. Any way, pursuant to the direction of this Court, the appellant's claim for appointment in the regular vacancy which arose on 2.9.2002 was considered by the D.E.O. and rejected by Ext.P4 order dated 5.10.2004. The D.E.O. took the view that since the appointment of the appellant in the leave vacancy was approved only on 12.6.2003, she could have raised a claim for any appointment under Rule 51A of Chapter XIV-A of the Kerala Education Rules (for short, 'K.E.R.') only thereafter. The said Rule recognises the right of a retrenched teacher for re-appointment. In the meantime, the first respondent was promoted as H.S.A. on 9.6.2003 and in the resultant vacancy, the appellant was appointed as U.P.S.A.

(3.) The appellant challenged Ext.P4 order before the Deputy Director of Education, by filing Ext. PS appeal. The Deputy Director by Ext.P6 order dated 11.12.2006 allowed the appeal. The D.E.O. was directed to regularise the appointments of U.P.S.As. made by the Manager. As per that order, the appellant was to be accommodated in the regular vacancy of U.P.S.A. which arose on 2.9.2002. The first respondent challenged Ext.P6 order before the Director of Public Instruction, by filing a petition dated 17.8.2007. The Director of Public Instruction, by Ext.P7 order dated 31.10.2007 dismissed the said petition and upheld the order of the Deputy Director of Education, Ext.P6. The Manager, in the meantime, challenged the order of the Deputy Director of Education before the Government, by filing a Revision on 19.11.2007. The Government by Ext.P8 letter dated 26/11,2007 forwarded the said Revision to the Director of Public Instruction, directing him to reconsider the matter, after hearing all concerned parties,, including the Manager. Based on the said communication of the Government, the Director of Public Instruction reconsidered the matter and by Ext,P9 order dated 3.7.2008, affirmed his decision contained in Ext.P7 order dated 31.10,2007. Challenging Exts.P6, P7 and P9 orders, the first respondent filed the present Writ Petition. The sixth respondent/appellant filed a counter affidavit, supporting the impugned orders. Ext.R6(a) order of the Government dated 9.11.1999 was also produced along with the said counter affidavit. That said order says that, "Government are pleased to clarify that the services of leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority". The Manager filed a counter affidavit, supporting the first respondent/writ petitioner. The learned Single Judge after hearing both sides, allowed the Writ Petition and quashed Exts.P6, P7 and P9 orders. Feeling aggrieved by the judgment of the learned Single Judge, this appeal is preferred by the sixth respondent.