Saritha V. vs State of Kerala and Others (W.P.(C).No. 1339 of 2009 (H))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 9TH DAY OF OCTOBER 2014/17TH ASWINA, 1936** ## **WP(C).No. 1339 of 2009 (H)** ## **---------------------------** ## **PETITIONER :** ## **------------------** **SARITHA.V., W/O. AP. VISWANATHAN, UPSA, GOVINDAPURAM AUP SCHOOL, W/O.AP.VIASWANATHAN, UPSA, GOVINDAPURAM AUP SCHOOL, GOVINDAPURAM, CALICUT, R/AT. NANDANAM MANARIPARAMBU, GOVINDAPURAM, CALICUT.** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS :** - **----------------------** **1. STATE OF KERALA, REPRESENTED BY** - **THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM.** **2. DIRECTOR OF PUBLIC INSTRUCTINS, TRIVANDRUM.** **3. DISTRICT EDUCATIONAL OFFICER, KOZHIKODE CITY.** **4. ASSISTANT EDUCATIONAL OFFICER, KOZHIKODE CITY.** ## **5. MANAGER, GOVINDAPURAM AUP SCHOOL, GOVINDAPURAM, KOZHIKODE** **6. PRINCY, UPSA, GOVINDAPURAM AUP SCHOOL, KOZHIKODE.** ## **ADDL. R7 IMPLEADED :** **7. REENA P., W/O. MONY I., AGED 34 YEARS, U.P.S.A., GOVINDAPURAM A.U.P. SCHOOL, RESIDING AT KOOTTAKKIL HOUSE, KOKKALLUR P.O., BALUSSERY (VIA), KOZHIKODE DISTRICT. ADDL. R7 IS IMPLEADED AS PER ORDER DT 6/10/2009 IN IA 12055/2009.** **R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI. SOJAN JAMES R5 BY ADV. SRI.K.M.JAMALUDHEEN R6 BY ADV. SRI.P.C.SASIDHARAN ADDL.R7 BY ADV. SRI.M.SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 1339 of 2009 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: APPOINTMENT ORDER DT 21/6/2004 ISSUED BY THE FIRTH RESPONDENT TO THE PETITIONER** - **P2: PROCEEDINGS OF AEO, KOZHIKKODE CITY NO. K-DIS 846/05/C DT 27/12/2005.** - **P3: STATEMENT OF RELINQUISHMENT OF THE R6 DT 5/6/2006 IN THE PRESENCE OF AEO.** - **P4: PROCEEDINGS NO.17524/04B2 DT 6/3/2007 OF THE DEO, KOZHIKKODE** - **P5: PROCEEDINGS OF DPI NO. G3/38510/2007/DPI/D-DIS DT 23/1/2008.** - **P6: PROCEEDINGS OF AEO, KOZHIKKODE CITY NO.C/683/08 DT 31/3/2008.** - **P7: G.O.(RT) NO. 5249/08/G.EDN DT 25/11/2008.** - **P8: COPY OF THE REPRESENTATION DT 21/10/2011 SENT BY PETITIONER TO THE ASST. EDUCATIONAL OFFICER.** - **P9: COPY OF THE REPRESENTATION DT 18/11/2011 SUBMITTED BY THE PETITIOENR TO THE R1.** ## **RESPONDENT'S EXHIBITS :** - **EXT.R5(A): COPY OF THE APPROVAL OF APPOINTMENT ISSUED BY AEO DT 19.12.2005 ENDORSED ON THE BOTTOM SIDE OF THE APPOINTMENT ORDER.** - **EXT.R5(B): COPY OF THE APPOINTMENT ORDER ISSUED BY THE R5 TO R6 DT 5/6/2006.** - **EXT.R5(C): COPY OF APPROVAL OF CHANGE OF MANAGEMENT IN THE NAME OF THE R5 DT 9/12/2004.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **bp** ## C.K.ABDUL REHIM,J. ----------------------------------------WP(C).NO. 1339 of 2009 ---------------------------------------Dated this the 9[th] day of October, 2014 ## JUDGMENT The petitioner was appointed as Upper Primary School Assistant (UPSA) in the 5[th] respondent's school with effect from 21.6.2004, against a leave vacancy which arose consequent to leave availed by one Smt. P.Sobha, who was working as a UPSA. Originally the leave applied by Smt. P.Sobha was up to 31.7.2006. But later it was extended upto 31.7.2011. Ext.P1 is the order of appointment of the petitioner with respect to the period from 21.6.2004 to 31.7.2006. But the 4[th] respondent had not approved the appointment initially and rejected it on the basis that the vacancy was not in existence, as per the staff fixation. Subsequently the Manager sought for a reconsideration of the decision, on the basis that there was a refixation of the staff strength. But in Ext.P2 the 4[th] respondent had again rejected the approval stating that the 6[th] respondent herein is a claimant under Rule 51 A of Chapter XIV A KER, WPC.1339/2009 2 since she had worked in the school from 5.6.2002 to 16.8.2002. Against Ext.P2 the Manager preferred appeal before the 3[rd] respondent, which was rejected through Ext.P4 order observing the very same reason of the claim of the 6[th] respondent under Rule 51A. A further appeal filed before the 2[nd] respondent was also rejected through Ext. P5, finding that the appointment given to the petitioner is not legal in view of Rule 51 A claim of the 6[th] respondent. Meanwhile there arose a regular vacancy in the school with effect from 1.6.2007, consequent to retirement of one Smt.P.Vasantha, UPSA. The Manager appointed the petitioner against the said regular vacancy with effect from 1.6.2007. But by virtue of Ext.P5 the 4[th] respondent rejected the approval stating the reason that no appointment was given to the 6[th] respondent who is a Rule 51 A claimant. Under the above mentioned circumstances the petitioner moved before the Government in a revision petition. She had approached this court in a writ petition seeking direction for consideration of the revision petition. Consequent to direction issued by this court in the writ petition, the matter was considered by the Government and Ext.P7 order was issued. Before the Government the WPC.1339/2009 3 petitioner had raised a contention that the 6[th] respondent had relinquished her claim under Rule 51A, when the Manager had appointed her against the vacancy of Smt.P. Vasanta, which arose during June, 2006. In support of this contention the petitioner had produced Ext.P3 statement of relinquishment issued by the 6[th] respondent, in which it is stated that she had relinquished her right for appointment with effect from 5.6.2006, permanently. It is pointed out that the statement of relinquishment was attested by the 4[th] respondent. The Government while examining the revision petition found that the relinquishment made by the 6[th] respondent is not in accordance with the procedure contemplated under Note 2 to Rule 51A and hence the claim of the 6[th] respondent existed with respect to the vacancy which arose subsequently. It is challenging Ext.P7, this writ petition is filed. 2. The dispute pertains to rejection of approval of appointment of the petitioner for the period from 21.6.2004 onwards in the leave vacancy of Smt. P.Sobha and also with respect to the rejection of approval of her appointment against the regular vacancy of P. Vasanta with effect from 1.6.2007 WPC.1339/2009 4 onwards. Learned counsel for the petitioner contended that, at the time when the petitioner was appointed against the leave vacancy on 21.6.2004, the claim of the 6[th] respondent under Rule 51A was not in existence because her appointment remained not approved at that time. It is not in dispute that the appointment of the 6th respondent from 5.6.2002 to 16.8.2002 was subsequently approved. Therefore it is evident that the 6[th] respondent became a claimant under Rule 51A with respect to the post arose on the basis of leave vacancy of Smt. P.Sobha. Learned counsel contended that the approval with respect to appointment of the petitioner cannot be rejected because there existed no claimant under Rule 51A as on the date of her appointment. 3. But the question remains settled through a Full Bench decision of this court in **Soman vs. Manager, A.K.M. High School (2013 (2) KLT 215(FB).** It is held that, with respect to any appointment made by the Manager under Rule 7 of Chapter XIV A, it will be effective from the date on which the teacher is admitted to duty. When the appointment is approved on any subsequent date the appointment will become effective WPC.1339/2009 5 from the date on which the teacher was admitted to duty as provided in Rule 7. In other words the appointment will be effective from the date on which the teacher had joined duty, once that appointment is approved by the Educational Officer, irrespective of the date of such approval . It is further held that, if a claim under rule 51A will be defeated for the reason that the original appointment was remaining unapproved at the time when the next vacancy arises, there are chances of the Managers or the Educational Officers delaying approval of the original appointment in order to prevent any person from claiming preference under Rule 51A and for facilitating appointment on another person to the next vacancy on that ground. It is held that a right which accrued under a provision of law cannot be dependent upon the volition of the Manager or the Educational Officer. If a person is appointed in compliance with Rule 7A of Chapter XIV A KER in a short term vacancy, he/she will be entitled to raise a claim for preference for appointment in future vacancies as provided under Rule 51A, if the conditions under the said Rule is satisfied. If it is held that such a right is dependent upon approval of the original appointment, it may lead to WPC.1339/2009 6 arbitrary exercise of power by the Manager or the Educational Officer in preventing the legitimate claimants from exercising the right under Rule 51A. Such a situation cannot be permitted and the right to raise the claim under Rule 51A shall not be dependent upon the factum of approval of the original appointment, is the findings rendered. 4. In view of the dictum laid by the Full Bench in **Soman's case** (supra), which is binding on this court, contention to the effect that non approval of appointment of the 6[th] respondent as on 21.6.2004 will deprive her from raising a claim under rule 51 A cannot be accepted. Hence the rejection of approval of the appointment of the petitioner against the leave vacancy from 21.6.2004 onwards is to be upheld. 5. With respect to the appointment of the petitioner against the retirement vacancy with effect from 21.7.2006, the contention is based mainly on the aspect of relinquishment made by the 6[th] respondent. Learned counsel for the petitioner had drawn attention of this court to Ext.P3 statement of relinquishment in which the 6[th] respondent had mentioned in unequivocal terms that the relinquishment is made with effect WPC.1339/2009 7 from 5.6.2006, permanently. She had further drawn attention to Ext.R5(b) order of appointment issued by the Manager appointing the 6[th] respondent against the vacancy, the 6[th] respondent had made an endorsement to the effect that she is not intending to join duty in the vacancy arising from 5.6.2006 onwards (vacancy of Smt. P.Vasanta). On the basis of the relinquishment made by the 6[th] respondent, the order of appointment issued by the 5[th] respondent ought to have been approved, is the contention raised. In Ext.P7 impugned order the Government have negatived the contentions based on the relinquishment by observing that the relinquishment is not made in accordance with Note 2 appended to Rule 51 A. Note 2 prescribes that the Manager should issue an order of appointment to the teacher by registered post with acknowledgment due by giving a period of 14 days to join duty. If the teacher do not join duty in time, the Manager should give a further notice stating that another person would be appointed instead and that the preferential right under the Rule would be forfeited if not exercised within another 7 days. If nothing is heard during that time the preferential right under the Rule will be regarded as WPC.1339/2009 8 forfeited. 6. In the rulings of this court in **Lakshmikutty Amma vs. Vijayalakshmikutty (1992 (2) KLT 341)** it is held that no teacher can be treated as having forfeited the right under Rule 51A without the Manager completing the procedure laid down in Note 2 to Rule 51 A, even if there is a relinquishment letter. The principle was reiterated in a recent decision rendered by a Division Bench of this court in **Vinayaraj vs. State of Kerala (2014 (1) KLT 2009).** This court held that it is only by following the statutorily prescribed sequence of events and actions, would the relinquishment, deprivation or abandonment of the statutory right under Rule 51A, will get dissolved by operation of law on a particular fact situation. As found by the revisional authority, there is no compliance of the procedural formalities and the sequence of action stipulated in Note 2 to Rule 51 A. Whatever be the terms of relinquishment statement or endorsement made by the 6[th] respondent, non compliance of such procedure will operate against such relinquishment and it cannot be held that the 6th respondent was deprived of her claim under rule 51A. WPC.1339/2009 9 7. Learned counsel for the petitioner had pointed out that the 6[th] respondent is none other than the daughter of the 5[th] respondent - Manager. It is attributed that there occurred a collusion between them in not issuing proper notices as contemplated under Note 2 to Rule 51A and not getting proper relinquishment as stipulated under the relevant Rule. However, such a factual aspect, even if considered as true, cannot be put into use for negativing the findings rendered by the educational authorities and the Government, which are based on statutory provisions and settled legal precedents. 8. The additional 7[th] respondent got impleaded in this writ petition on the basis that her appointment was also not approved by virtue of Ext.P7 order, since the dispute based on Rule 51 A claim was not settled. However, the issue with respect to approval of appointment of the 7[th] respondent is not germane for consideration in this writ petition and this court is not adverting to any of the factual aspects related to her appointment. 9. Learned counsel for the petitioner lastly made submission seeking direction from this court to the 5[th] respondent Manager to make payment of salary due to the petitioner for the WPC.1339/2009 10 period during which she had worked. As it is already found by this court that the appointment of the petitioner was not liable to be approved, this court is not in a position to issue any such direction. If the petitioner has got any case that the Manager had made her appointment in a manner to deceit her or that the petitioner had suffered loss due to any illegal or irregular action on the part of the Manager, it is for her to seek appropriate remedy under the common law for getting the loss/damage compensated, through appropriate legal steps. Any of the observations contained in this judgment will not stand in the way of the petitioner exercising any such right as permissible under law. C.K.ABDUL REHIM, JUDGE Pmn/ WPC.1339/2009 11