Decided on July 05,1993

JAIMY Appellant
DY. DIRECTOR Respondents


- (1.)SINCE the issues involved in these original petitions are the same, they were heard together and are being disposed of by a common judgment. Documents are referred as marked in O. P. 9545/91. Petitioners in O. P. Nos. 11982/90 and 9545/91 are teachers claiming appointment in the St. Thomas High School, Kanakkadavu, Kannur District and the Manager of the above school has filed O. P. 9200/91.
(2.)THE short facts are as follows: Sri. UJ. Paius the petitioner in O. P. 9545/91 was originally appointed as a High School Assistant (Physical science) in St. Thomas High School in a leave vacancy during the period from 16-7-1987 to 28 -10-1987. His appointment was duly approved and he was relieved from the school on the termination of the vacancy. Later, on 1-6-1988, he obtained appointment as an Upper Primary School Assistant in a permanent vacancy in St. Mary's U. P. School under another educational agency. When temporary vacancies arose in St. Thomas High School in the post of H. S. A. (Physical science) during the period from 3-6-1988 to 22-8-1988 and from 5-9-1988 to 2-12-1988, petitioner in O. P. 11982/90, Smt. C. Jaimy was appointed by the Manager. THEse appointments were approved by the authorities. Later a permanent vacancy arose on 1-9-1989 in the post of H. S. A.- (Physical science) during the academic year 1989-90 on account of sanctioning of an additional division by the Director of Public Instruction. THE above vacancy was sought to be filled up by appointing Sri. U. J. Paious resorting to inter-management transfer and Smt. Jaimy was posted in short term vacancies from 18-9-1989 to 22-12-1989 and from 2-1-1990 to 6-3-1990. Inter-management transfer was granted to Sri. U. J. Paious on a representation submitted by him on 21-12-1989. THE above request was granted as is seen from the files on the basis of a declaration given by the Manager of St. Thomas High School that there was no teacher having a claim for appointment as H. S. A. (Physical science) in the permanent post and also on the basis of as report from the asst. Educational Officer, Irikkur. THE inter-management transfer was approved under order dated 20-1-1990, copy of which is produced as Ext. P1. Later, it came to the notice of the Dist. Educational Officer that grant of an inter-management transfer to Sri. Paious was wrongly given since Smt. Jaimy had a claim under rule 51-A for appointment to the regular vacancy which arose on 1-9-1989 and the declaration given by the Manager was false. THErefore, Ext. P2 notice dt. 23-3-1990 was issued to the Manager, St. Thomas High School directing him to show cause why grant of inter-management transfer should not be cancelled.
Since, no further action was taken on the basis of the above show cause notice and Smt. Jaimy was not offered an appointment in the permanent vacancy in spite of a representation made by her for the same, she filed O. P. 5602/90 before this court, which was disposed of by judgment dt. 21-6-1990 directing the Dist. Educational officer, Kannur to pass final orders in the proceedings initiated under the notice dt. 23-3-1990. Ultimately, the d. E. O. passed Ext. P7 proceedings dt. 18-9-1990 holding that the inter-management transfer granted to Sri. Paious was against the Rules. He found that no inter-management transfer could have been given ignoring the claim of Smt. Jaimy under Rule 51-A of Ch. XIV-A. It was further held that Sri. Paious cannot put forward any claim under Rule 51-A since he had already obtained an appointment in a permanent vacancy in a school under a different educational agency. The above order was not taken in appeal by Sri. Paious. But an appeal was filed by the manager before the Dy. Director of Education. The Dy. Director confirmed the view taken by the D. E. O. Ext. P10 is a copy of the proceedings dt. 20-2-1991 by the Dy. Director.

Even though Sri. Paious had not challenged the order passed by the D. E. O. by way of an appeal, he filed a revision before the director of Public Instruction challenging the order passed by Dy. Director of education. In the meanwhile, the Manager had filed another revision before the government. No revision is maintainable before the director of Public instruction from an order passed by the Dy. Director of Education. After hearing all the affected parties and considering their contentions in detail, government dismissed the revision petition as evidenced by Ext. P12 order. It came to the conclusion that since Sri. Paious was already appointed in a permanent vacancy in St. Mary's U. P. School as on the date of occurrence of the permanent vacancy, namely, 1-9-1989, he cannot-put forward a claim under Rule 51-A for preferential appointment. On the other hand, Smt. Jaimy had all the qualification necessary for claiming preferential treatment for appointment as per the provisions contained under Rule 51-A. The above order is under challenge in O. P. 9545/91 whereas in O. P. 11982/90, the petitioner seeks a writ of mandamus directing the respondents to appoint her with effect from 1-9-1989 by implementing the order passed by the D. E. O. dt. 18-9-1990. In O. P. 9200/91, the Manager also challenges the order passed by the Government rejecting his revision.

(3.)IT is contended on behalf of the petitioner in O. P. 9545/91 that he was never informed about the short term leave vacancies which arose in St. Thomas High School during the period from 3-6-1988 to 2-12-1988 and therefore he had no occasion to know about those vacancies, and put forward his legitimate claim. IT is further con tended that for the above reason, smt. Jaimy cannot put forward any claim under Rule 51-A on the. basis of her appointment in the above mentioned temporary vacancies. IT is relevant to note that it is only before this Court Sri. Paious has taken up the above contention for the first time. He had not put forward such a complaint before the departmental authorities. On the other hand, in the memorandum of appeal filed by the Manager before the Dy. Director of Education, it has been specifically averred that Sri. Paious was informed about the leave vacancies which arose in 1988, but he took the stand that he was not interested in joining in the leave vacancies and he would be willing to join only when a permanent vacancy is offered. IT is also relevant to note that even to the permanent vacancy which arose on 1-9-1989, no claim' was put forward by Sri. Paious on the basis of his preference under Rule 51-a. On the other hand, he had specifically applied for anjnter-management transfer and obtained the same. Even before this Court, his challenge is against an order passed by the authorities cancelling his inter-management transfer and not against an order refusing his claim under rule 51-A.
While considering the nature of the claim under Rule 51-A, a Division Beach of this Court in Saramma v. D. E. O. , Kolhamangalam,1991 (2) KLT 883 observed as follows: "a "thrown out" teacher cannot therefore aspire to be appointed to a post which is different in nature from that from which he was thrown out. We however make it clear that it need not be the same vacancy or a vacancy of the same character, in the sense that it is permanent or temporary". Therefore there is substantial force in the contention taken by Smt. Jaimy that when Sri. Paious refused to accept the temporary vacancies, it should be taken that he has relinquished his claim under Rule 51-A. There is nothing in Rule 51-A which would impose a duty on the Manager to offer appointment in vacancies arising in his school repeatedly, even when the first offer was rejected by the Rule 51-A claimant. It may not make any difference that the-vacancy which arose for the first time was temporary in nature. Rule 51-A claimant is entitled to claim the vacancy and the Manager is bound to offer the same to him as has been held in the decision referred above.


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