Asha Varghese vs State Of Kerala And Ors

The petitioner says that she was appointed as a High School Assistant (Malayalam) in St.Joseph's High School, Thrissur by the fifth respondent

Manager with effect from 03.06.2008, in the vacancy which arose consequent to the promotion of Smt.Suma C.Anto as a Higher Secondary School

Teacher (HSST), but that her approval was, however, rejected by the Deputy Director of Education, Thrissur solely for the reason that the

aforementioned promotee's appointment had not been approved and consequently, that the vacancy had not been established.

The petitioner contends that, however, as is evident from Exhibit P1, the promotion of Smt.Suma C.Anto as HSST has been approved with effect

from 01.12.2007 and therefore, that a vacancy to accommodate her on 03.06.2008 is clearly established. She says that even though all these facts are

conceded in Exhibit P2 order, the Director of Public Instructions (now re-designated as Director of General Education) has ordered that her approval

be granted only with effect from 01.06.2011, solely because the Government Order (G.O.(P)No.199/11/G.Edn.) relating to the Teachers Package

was issued only on 01.10.2011.

The petitioner, therefore, prays that Exhibits P2 and P3 orders be set aside, to the extent to which approval has been granted to her only with effect

from 01.06.2011 and consequently seeks that the competent authorities be directed to grant approval to her with effect from 03.06.2008, being the

date of her initial appointment.

In response, the learned Government Pleader submitted that the petitioner cannot be granted approval with effect from 03.06.2008 since there was

no established vacancy at that time to appoint her. He says that the approval was, thereafter, granted with from 01.06.2011 in terms of the 'Teachers

Package' and that it has been specified therein that prior service of the teachers included in such Package cannot be reckoned for any service

benefits, but will be deemed to have commenced afresh with effect from 01.06.2011. The learned Government Pleader, therefore, contends that

Exhibits P2 and P3 orders are irreproachable and prayed that this writ petition be dismissed.

Even when I hear the learned Government Pleader on the afore lines, the fact remains that the petitioner's approval cannot be granted under the

Teachers Package, if there had been a clear vacancy to accommodate her on 03.06.2008. The initial orders rejecting her approval was solely for the

reason that the promotion of Smt.Suma C. Anto - consequent to which the vacancy had arisen - had not been approved. But, as rightly stated by the

learned counsel for the petitioner, this benefit had been granted to the said promotee through Exhibit P1 order dated 04.07.2011, whereby approval

was given to her promotion with effect from 01.12.20017. Obviously, therefore, on 03.06.2008, when the petitioner was appointed, there was a clear

vacancy to accommodate her and I cannot, therefore, find favour with Exhibits P2 and P3 orders, which grants her the benefit only under the

'Teachers Package'.

As I have already said above, since the petitioner is seeking an appointment to a promotion vacancy, her claim has to be considered on such basis,

rather than she be brought under the ambit of the teachers package, which would be applicable only to cases where the earlier appointments were not

to a sanctioned or authorised vacancy. In the case at hand, this being not so, I cannot find Exhibits P2 and P3 orders to be valid in law.

In the afore circumstances, I set aside Exhibits P2 and P3, with a consequential direction to the fourth respondent District Educational Officer,

Chavakkad, to again take up the proposal for approving the appointment of the petitioner with effect from 03.06.2008, adverting to my afore

observations and also after affording an opportunity of being heard to the petitioner as also the Manager of the School â€" either physically or through

video conferencing â€" thus culminating in an appropriate decision thereon, as expeditiously as possible, but not later than three months from the date

of receipt of a copy of this judgment.

This writ petition is thus ordered.