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2010 Supreme(Online)(KER) 39726
HIGH COURT OF KERALA
C.N. RAMACHANDRAN NAIR, P.S.GOPINATHAN, JJ
THE MANAGER – Appellant
Versus
K.P.BINDU – Respondent
WA/799/2010
SRI.P.M.PAREETH
The court emphasized the legitimacy of appointing qualified candidates when vacancies occur, even if initial appointments were challenged due to claims of insufficient vacancies.
Headnote:
Appointment - Educational Employment - KER - Sections of Rule 51A - The court reviewed the legal framework regarding appointment rights in educational institutions, particularly focusing on protected teachers' rights and the qualifications necessary for appointments, ultimately reinforcing the right to appoint qualified candidates when vacancies arise.
Fact of the Case:
The appellant contested the rejection of a teacher's appointment, arguing lack of vacancy, while the first respondent contended her right to appointment based on prior promotion and directions from the Government.
Finding of the Court:
The court determined that the appointment of the first respondent was justified, as subsequent vacancies arose and no protected teacher or other claims obstructed her appointment.
Issues: The primary issue revolved around whether there was a vacancy for the first respondent's appointment and if protected teacher claims hindered said appointment.
Ratio Decidendi: The court ruled that even in the absence of a vacancy during the initial appointment period, subsequent developments justified the appointment of the first respondent.
Final Decision: Writ Appeals dismissed with clarification on service benefits effective from the start of the respondent's continued service.
COMMON JUDGMENT
Gopinathan, J.
These appeals are preferred against the common judgment in OP.No.650/2003 and OP.No.13816/2003. Since the bone of contention in both appeals is one and the same, the judgment impugned is common and the parties, except the 4th respondent, are same, we are disposing these appeals by this common judgment. The appellant is the petitioner in OP.650/03 and the 3rd respondent in OP.13816/03. OP.13816/03 was filed by the first respondent in WA.799/2010. She is the 3rd respondent in OP.650/03 as well as in the other appeal. The appellant is the Manager of Mambaram Higher Secondary School.
Smt. K .P.Bindu, the first respondent in WA.799/2010 was appointed as a High School Assistant (Mal.) in the school run by the appellant with effect from 24.8.2000 in a vacancy that arose due to the promotion of Smt.Baby Sulekha, a High School Assistant as Higher Secondary School Teacher under the very same management. The proposal for appointment was forwarded by the appellant to the 3rd respondent in WA.No.799/2010 who is the District Educational Officer. The 3rd respondent rejected the proposal for the reason that there is a protected teacher who is entitled to a lien under Rule 51A of the ER . Being aggrieved, the first respondent in WA.799/2010 preferred a revision petition before the Government. Since there was delay in disposal of the revision preferred by her, she approached this Court with OP.No.30673/01, the copy of which judgment is marked as Ext.P1. This Court by Ext.P1 directed the State to dispose her representation at the earliest. It was further directed that any action taken by the appellant in the meanwhile would be subject to the decision taken by the Government on the representation made by the first respondent. The Government by order dated 19.10.2002, copy of which was marked as Ext.P2 in OP.13816/03 and Ext.P7 in OP.650/03, directed the appellant to appoint the first respondent in WA.799/2010. Seeking an order directing the appellant to implement Ext.P7 order, OP.13816/03 was preferred. Seeking an order to set aside the very same order, ( Ext.P2) OP.650/03 was filed. In OP.13816/03, Ext.P4 order issued by the District Educational Officer declining the appointment of the petitioner therein was also assailed.
2. By common judgment dated 9.12.2009, OP.650/03 was dismissed. The other writ petition was allowed quashing Ext.P4 order and directing the District Educational Officer to implement Ext.P2 and approve the appointment of the petitioner therein. Now these appeals.
3. In preferring the appeal there is delay of 116 days. To seek an order to condone the delay, petitions were filed. The reason stated for condoning the delay is that there occurred some delay to formulate an opinion to prefer the appeals. Though, we are not satisfied with the reasons stated, we find that it would be just and appropriate to go into the merits of the appeal. Hence we condone the delay in filing the appeals.
4. The fact that the first respondent in the first appeal was appointed by the appellant as HSA (Mal.) is not disputed. Her qualification is also not disputed. Now, the only challenge is that there is no vacancy as on the date of the appointment. In the light of the pleadings, we find that it is not at all necessary to go deep into that aspect. In the appeal memorandum in Ground A, the appellant had stated that in the vacancy created by promotion of Smt.Baby Sulekha, Sri.S.Radhakrishnan, the 4th respondent in the WA.800/2010 was appointed in compliance of the judgment in OP.35586/01 dated 10.4.2002, the copy of which is marked as Ext.P3 in OP.13816/2003. It is further stated that in a newly created vacancy, one Dinesh K umar was appointed in the academic year 2001-'02. Even if there is no vacancy as on the date of appointment, before appointing another person, in the next academic year, the appellant should have given priority to Smt. .P.Bindu, whom the appellant appointed during the previous year. In the above circumsta
