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2005 DIGILAW 5 (KER)

A. K. Manju v. State Of Kerala

2005-01-04

THOTTATHIL B.RADHAKRISHNAN

body2005
Judgment :- W.P.(C)31330/2003 is filed by Mis. A.K. Manju and W.P.(C) 18545/2004 is filed by Mis. V R Resmi. Both of them staked claim to be appointed as H.S.A.(Maths) in a regular vacancy that occurred in the service of M.S.P, Higher Secondary School, Malappuram owing to the retirement of Sri Jathavedan Namboodiri on 31-3-2002. 2. The claim of Ms. Manju is that she, who is an L.P.S.A. in the same school, is entitled to be promoted by virtue of Rule 43 of Chapter XIV(A) K.E.R. as against the said vacancy of H.S.A. while the case of Ms. Resmi is that on account of a prior approved spell of her employment as against a leave vacancy as H.S.A. in the said school she is entitled to be appointed as H.S.A. in the permanent vacancy. The Manager appointed Ms. Resmi and the statutory authorities approved and upheld such appointment of Ms. Resmi as per the orders impugned in W.P.(C)31330/2003 filed by Ms. Manju. In that writ petition there was an interim order that the approval of the appointment of Ms. Resmi will be subject to the result of the said writ petition. Accordingly, it appears that Ms. Resmi was not paid the salaries due to her and therefore, she filed W.P.(C)18545/2004. It is thus that these two matters get linked up. 3. The material facts relevant to resolve the dispute between the parties may be noted as under: Sri Jathavedan Namboodiri retired on 31-3-2002. Thus, a vacancy of H.S.A.(Maths) arose on 1-4-2002. This is the normal course of law. 31-3-2002 was the last day of that academic year. Rule 7A(2) provides that posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non vacation staff. Therefore, the vacancy that occurred by the superannuation of Sri Jathavedan Namboodiri on 31-3-2002 could-have been filled up only on 5-6-2002 which is the reopening date for the school in that year. 4. The case of Ms. Manju is that though she did not earlier possess the B.Ed. degree qualification, she passed the B.Ed. degree examination and became fully qualified on 4-4-2002 before 5-6-2002 on which date the school reopens. Accordingly, it is urged on her behalf that the vacancy occurs or arises only on the reopening date 5-6-2002. 5. Per contra, it is pointed out on behalf of Ms. degree qualification, she passed the B.Ed. degree examination and became fully qualified on 4-4-2002 before 5-6-2002 on which date the school reopens. Accordingly, it is urged on her behalf that the vacancy occurs or arises only on the reopening date 5-6-2002. 5. Per contra, it is pointed out on behalf of Ms. Resmi that her earliest spell of temporary appointment against leave vacancy was from 22-7-2001 to 24-8-2001. Her earliest such appointment was approved on 11-12-2002. By the force of Rule 7 of Chapter XIV(A), that approval will relate back to the date of appointment i.e. 22-7-2001. Therefore, Ms. Resmi is a candidate who is entitled to the benefit of the protection provided by Rule 51 A of Chapter XIV(A) following her earliest spell of appointment from 22-7-2001 to 24-8-2001. This means that she, who had possessed B.Ed. degree even then, was fully qualified on the date of superannuation of Sri Jathavedan Namboodiri and on the next day i.e. 1-4-2002 when the vacancy could be treated as arisen subject to Rule 7A of Chapter XIV(A). 6. It is conceded that a claim under Rule 43 would prevail over a claim under Rule 51 A. But the question is as to which is the date of occurrence of vacancy since it is the date of occurrence of vacancy that is relevant for considering I whether Ms. Manju was entitled to be promoted in view of Rule 43 of Chapter XIV(A) since Note (2) under the said rule makes it abundantly clear that promotion under that rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy. Therefore, the question is as to what is the time of occurrence of vacancy as regards the post that fell vacant owing to the retirement of Sri Jathavedan Namboodiri. 7. To answer this, Rule 7A of Chapter XIV(A) provides the clue. Sri Jathavedan Namboodirl retired from a permanent post in the A.N. of 31-3-2002. The post held by him fell vacant on that day. All that Sub-rule (2) of Rule 7A provides is that the posts that may fall vacant on the closing date shall be left unfilled till the reopening date. Sri Jathavedan Namboodirl retired from a permanent post in the A.N. of 31-3-2002. The post held by him fell vacant on that day. All that Sub-rule (2) of Rule 7A provides is that the posts that may fall vacant on the closing date shall be left unfilled till the reopening date. A proper understanding of the said sub rule will show that it concedes the situation that the vacancy occurs immediately on the vacation of office of an incumbent who superannuates on the closing date but a statutory interdiction is imposed against filling up of that vacancy till the reopening date. Sub-rule (2) of Rule 7A of Chapter XIV(A) K.E.R. does not envisage postponement of date of occurrence of vacancy. In that view of the matter, the post held by Sri Jathavedan Namboodiri till his retirement on 31-3-2002, fell vacant on that day. So much so, it is the indisputable position that on that day Ms. Resmi, the petitioner in W.P.(C)18545/2004, who is the 6th respondent in W.P.(C)31330/2003, was the person available to be appointed against that vacancy since admittedly, on that day, Ms. Manju did not possess the B.Ed. qualification which she obtained only on 4-4-2002. Accordingly, I do not find any illegality in the orders impugned in W.P.(C) No.31330/2003. In the result, W.P.(C)No.31330/2003 is dismissed. W.P.(C).No.18545/2004 is disposed of directing that the statutory authorities shall act on the basis of the statutory appointment order and the approval of the appointment of the petitioner in the said writ petition and all consequential benefits will flow in her favour. Benefits, if any, outstanding to the petitioner will be disbursed by the competent statutory authorities within a period of three months from the date of receipt of a copy of this judgment. The parties are directed to bear their own costs.