WA No. 675 of 2018 & WA No. 921 of 2018 (Shoukathali v. Saleena Puthuveettilkandy & Others) High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942** ## **WA.No.675 OF 2018** ## **AGAINST THE JUDGMENT IN WPC 26291/2013 OF HIGH COURT OF KERALA** ## **APPELLANT/3RD PARTY:** **SHOUKATHALI AGE: 53 YEARS, S/O.MUHAMMED, VALIYAVEETTIL HOUSE, P.O. KIZHUPARAMBA, (VIA) ARIKKOD, MALAPPURAM DISTRICT, NOW WORKING AS FULL-TIME ARABIC TEACHER AT MISM UP SCHOOL, KANNAMANGALAM (WEST) P.O., VENGARA.** ## **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS/PETITIONER/RESPONDENTS:** - **1 SALEENA PUTHUVEETTILKANDY HOUSE, OZHUKUR P.O., MALAPPURAM DISTRICT-673641.** - **2 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION MALAPPURAM DISTRICT-676505.** - **4 ASSISTANT EDUCATIONAL OFFICER VENGARA, MALAPPURAM DISTRICT-676304.** WA No.675 & 921/2018 -:2:- **5 THE MANAGER MISM UP SCHOOL, PENGADKUNDILPARAMBA, KANNAMANGALAM (WEST) P.O., VENGARA, MALAPPURAM DISTRICT-676304.** **R1 BY ADV. SRI.R.K.MURALEEDHARAN SR.GOVT.PLEADER SRI.B.VINOD** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-022020, ALONG WITH WA.921/2018, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:** WA No.675 & 921/2018 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942** ## **WA.No.921 OF 2018** **AGAINST THE JUDGMENT IN WPC 26291/2013 DATED 22-01-2018 OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT NO.4 IN WPC:** **THE MANAGER, MISM UP SCHOOL PENGADKUNDILPARAMBA, KANNAMANGALAM WEST P.O.,VENGARA, MALAPPURAM DISTRICT-676304.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SRI.VARUN C.VIJAY** ## **RESPONDENTS/PETITIONER/RESPONDENT NOS.1 TO 3 IN WPC:** - **1 SALEENA KAKKATTUCHALL PUTHUVEETTIKANDY HOUSE, OZHUKUR P.O., MALAPPURAM DISTRICT.** - **2 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GENERAL EDUCATIONDEPARTMENT, TRIVANDRUM-695001.** - **3 THE DEPUTY DIRECTOR OF EDCUATION MALAPPURAM, MALAPPURAM DISTRICT-676304** WA No.675 & 921/2018 ## -:4:- ## **4 ASSISTANT EDUCATIONAL OFFICER VENGARA, MALAPPURAM DISTRICT-676304.** **R1 BY ADV. SRI.R.K.MURALEEDHARAN** **R2-4 BY SR GOVERNMENT PLEADER SRI.B.VINOD** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-022020, ALONG WITH WA.675/2018, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:** WA No.675 & 921/2018 -:5:- ## **J U D G M E N T** Dated this the 20[th ] day of May, 2020 ## _**Shaffique, J.**_ These two appeals arise out of judgment dated 22/1/2018 in WP(C) No. 26291/2010. WA No. 921/2018 has been filed by the 4[th] respondent, who is the Manager of MISM UP School. WA No. 675/2018 has been filed by Sri.Shoukathali, who is affected by the impugned direction, with leave of Court. 2. By the impugned judgment, the learned Single Judge had allowed the writ petition observing that the petitioner is entitled to be given notional appointment in the vacancy which arose on 5/11/2007 as a Rule 51A claimant and the protected hand working in the school can be accommodated in the next arising vacancy. The educational authorities were directed to issue appropriate orders within three months. Sri.Shoukathali has been appointed as a Full Time Arabic teacher on 1/6/1988 and became a protected teacher on 31/8/2006. He was deployed to the present school on 5/2/2008 and thereafter he was working in WA No.675 & 921/2018 -:6:- MISM UP School without any interruption. His contention is that when there is a clear finding by the Government in Ext.P14 order that he entered service on 5/2/2008 and is continuing in the school, and when the writ petitioner had abandoned the employment and had gone on leave without permission, she ceases to be a Rule 51A claimant. According to him, he being a necessary party to the lis, the writ petition filed without impleading him ought to have been rejected on that ground. 3. The short facts in the case would disclose that the petitioner was appointed in the school managed by the 4[th] respondent in a leave vacancy from 28/7/2003 to 4/11/2007 as Full Time Arabic Teacher which was approved by the Assistant Educational Officer as per Ext.P5 order dated 25/2/2011. By virtue of the said order, she was entitled to be treated as a claimant under Rule 51A of Chapter XIVA KER. The said order came to be passed pursuant to a direction issued by this Court in WP(C) No. 29151/2009. Petitioner's contention is that while she was a Rule 51A claimant, the Manager appointed a protected teacher one Sri.Shoukathali in a vacancy that had arisen on 5/11/2007. Though she staked a claim for an appointment WA No.675 & 921/2018 -:7:- effective from 5/11/2007, the same came to be rejected as per Ext.P14 Government Order dated 26/9/2013. It is challenging Ext.P14, the the writ petition came to be filed. The respondents while supporting the impugned order Ext.P14 _inter alia_ contended that petitioner cannot be treated as a Rule 51 A claimant. Though she was working as a Full Time Arabic Teacher in the aforesaid school, she went on maternity leave on 13/9/2007 without permission from the Educational Officer. The term of appointment of the petitioner was only up to 4/11/2007 and since she was on maternity leave, there was no prospect for her to return to duty after the expiry of leave and therefore the leave was not sanctioned in terms of Note 4 to Rule 100 of Part I KSR. Therefore, her absence will be treated as termination from service in which event she is not entitled for any right as a Rule 51A claimant. It is further submitted that on the expiry of the term of appointment of the petitioner, the Manager of the school requested the educational authority to send a protected teacher on the basis of his application dated 24/10/2007. The 2[nd] respondent issued the name and details of the protected teacher as per communication dated 12/12/2007 and accordingly WA No.675 & 921/2018 -:8:- Sri.Shoukathali (appellant in WA No. 675/2018) was appointed. It is the further contention of the appellant that Ext.P7 is a forged document. A counter affidavit had been filed by the Assistant Educational Officer in WA No.921/2018 _inter alia_ stating that genuineness of Ext.P7 was verified and it was found that it is a concocted document. It is submitted that the leave application of the petitioner was returned with a similar endorsement by the then Superintendent of AEO Office Sri.M.C.Mohanan. The endorsement was dated 25/5/2011. The rejection of application has been recorded in the service book of the petitioner on 25/5/2011 by Sri.M.C.Mohanan. The endorsement dated 25/5/2011 in the service book and the endorsement in the reverse side of the leave application are in identical handwriting. But Ext.P7 is in another handwriting and the signature also varies. Ext.R4(a) is the leave application of the petitioner retained in the office of the Assistant Educational Officer and Ext.R4(b) the entry at page 15 of the service book. Two other leave applications submitted by the petitioner were also produced as Exts.R4(c) and R4(d) which were sanctioned by Sri.M.C.Mohanan. It is asserted that though the signature seen in WA No.675 & 921/2018 -:9:- Ext.P7 is similar to that of the full signature of Sri.M.C.Mohanan, it is not his. On this basis, learned counsel for the appellant Adv.Thulasi K.Raj would argue that the petitioner is not entitled for any relief from this Court in view of the fraud committed and she placed reliance on the judgments of the Apex Court in _**Sharma K.D. v. Steel Authority of India Ltd and Others**_ [(2008) 12 SCC 481], _**Sarvepalli Radhakrishnan University and Others v. Union of India and Others**_ (MANU/SC/0059/2019). The learned counsel for the appellant in WA No. 675/2018 Dr.George Abraham would submit that the learned Single Judge while issuing the impugned order did not take note of the fact that the appellant/Shoukathali was an affected party, if the directions issued by the learned Single Judge is implemented. 4. It is argued that the Manager was entitled to appoint a protected teacher when it was found that there was a vacancy. This is a case in which the petitioner Saleena had abandoned the job and her appointment in the leave vacancy was not even approved by the Educational authorities. It is at the relevant time that Shoukathali was appointed in the said vacancy. Therefore, he WA No.675 & 921/2018 -:10:- cannot be disturbed. It is further contended that Sri.Shoukathali is in the verge of retirement and Manager could accommodate the petitioner if at all she has a claim under Rule 51 A of KER in the next arising vacancy. 5. By the impugned judgment, learned Single Judge after having found that the petitioner is a claimant under Rule 51A of Chapter XIVA KER observed that she should have been accommodated in the vacancy of Full Time Arabic Teacher that existed in the school from 5/11/2007 and therefore while granting her notional appointment from 5/11/2007 held that the protected hand working in the school should be adjusted in the next arising vacancy. The Government in Ext.P14 order had taken a view that in so far as the petitioner was employed in the school only from 28/7/2003 to 12/9/2007, and without permission from the Assistant Educational Officer she had abandoned the job, she is not entitled for protection under Rule 51A. The moot question is whether she had applied for leave or not. In order to emphasise the above fact, petitioner has produced Ext.P6, an application for leave wherein she asked for maternity leave for 21 days from 15/10/2007 to 4/11/2017. The same is seen rejected as per WA No.675 & 921/2018 -:11:- Ext.P7. Ext.P7 is a document which has been found to be fabricated by the Assistant Educational Officer. But still there is no dispute that Ext.P6 had been issued. Ext.R4(a) is same as Ext.P6. The endorsement in Ext.R4(a) on 25/5/2011 only indicates that leave cannot be sanctioned as there is no prospect for the petitioner to return to duty after leave and even in the service book, at Ext.R4(b), it is recorded that she had deserted from duty in the afternoon on 12/9/2007. According to the petitioner, since it was Ramzan holidays from 15/10/2007, she sought for leave from 15/10/2007 to 4/11/2007 as per Ext.P6 which is the same as Ext.R4(a) prefixing the Ramzan holidays as well. We do not think it necessary for us to enter into any controversy regarding the alleged concoction of documents as any such enquiry would be futile at this stage. The fact remains that though the petitioner was found to have deserted from service effective from 12/9/2007, her service in the leave vacancy was approved as per Ext.P5 order dated 25/2/2011 from 28/7/2003 to 4/11/2007. Under such circumstances, we have to proceed on the basis that she had become a claimant under Rule 51A under Chapter XIV A. WA No.675 & 921/2018 -:12:- 6. The only other question to be considered is whether she should be accommodated from 5/11/2007 onwards when a protected teacher was already appointed by the Manager. 7. The facts involved in the case would disclose that it was only by Ext.P5 dated 25/2/2011 that the petitioner's appointment in the leave vacancy was approved. Until such time, the Manager has proceeded on the basis that she had abandoned her service. It is further evident from the factual aspects that petitioner staked up a claim only when it was found that Sri.Mujeeb Rahman had abandoned his job and a regular vacancy had arisen. Thereafter she had approached this Court by filing WP(C) No.29151/2009 challenging the orders rejecting her approval and it is based on the judgment in the said case that Ext.P5 order dated 25/2/2011 has been passed. Finally it was by letter dated 28/2/2011 (Ext.P10) that the petitioner made a request that she should be given an appointment treating her as a claimant under Rule 51A after removing the protected teacher. 8. As rightly pointed out by the learned counsel appearing for the appellant in WA No. 675/2018, he was not made a party to the writ petition filed by the petitioner. When WA No.675 & 921/2018 -:13:- the request of the petitioner is that she should be accommodated in the vacancy where the protected teacher was appointed, necessarily the protected teacher ought to have been made a party to the lis. Without making him a party, no adverse order could have been passed against him, and that is what has been done by the learned Single Judge as well. Therefore, the finding of the learned Single Judge that the petitioner should be accommodated in the place of the protected teacher cannot be sustained. The protected teacher was appointed after getting permission from the educational authorities on 5/2/2008 and he was continuing. He is about to reach the age of superannuation. Under such circumstances, petitioner could aspire for getting an appointment only in the next arising vacancy. At the relevant time when the protected teacher was appointed, there was no situation which warranted considering of a claim under Rule 51A of Chapter XIVA KER as the petitioner was not appointed in the leave vacancy during the relevant time. That apart, the findings by the educational authorities was that she had abandoned the job on 12/9/2007. Taking into consideration all these facts, we are of the view WA No.675 & 921/2018 **==> picture [27 x 9] intentionally omitted <==** that the writ appeals require to be allowed and accordingly we set aside the judgment of the learned Single Judge and the writ petition is disposed of as under:- The petitioner shall be appointed as Full Time Arabic Teacher in the next arising vacancy in the school managed by the 4[th] respondent. **Sd/-** **A.M.SHAFFIQUE** **JUDGE Sd/-** Rp **MARY JOSEPH JUDGE** WA No.675 & 921/2018 -:15:- ## **APPENDIX OF WA NO.921/2018** **APPELLANTS' EXHIBITS:** **ANNEXURE I COPY OF LEAVE APPLICATION DATED 8.3.2011 FOR THE PERIOD 20.9.2003 TO 26.10.2003. ANNEXURE II A COPY OF LEAVE APPLICATION DATED 8.3.2011 FOR THE PERIOD 31.8.2004 TO 12.1.2005. ANNEXURE III A COPY OF THE LEAVE APPLICATION DATED 8.3.2011 FOR THE PERIOD FROM 15.10.2007 TO 4.11.2007. ANNEXURE IV COPY OF THE LETTER DATED 14.3.2011 ISSUED BY THE HEAD MASTER OF THE APPELLANT SCHOOL. ANNEXURE V COPY OF THE RELEVANT PART OF THE SERVICE BOOK OF THE 1ST RESPONDENT. ANNEXURE VI COPY OF THE LETTER DATED 11.3.2011 SUBMITTED BY THE APPELLANT. RESPONDENT'S EXHIBITS ANNEXURE R1(a) A TRUE COPY OF THE APPLICATION SUBMITTED UNDER THE RTI ACT DATED 26.2.2018 AND THE REPLY DATED NIL. EXT.R4(a): TRUE COPY OF THE LEAVE APPLICATION OF THE PETITIONER RETAINED IN THE OFFICE OF THE AEO. EXT.R4(b): TRUE COPY OF THE PAGE 15 OF THE SERVICE BOOK OF THE PETITIONER. EXT.R4(C): TRUE COPY OF THE LEAVE APPLICATION OF THE PETITIONER DATED 19.9.2003 SANCTIONED BY SENIOR SUPERINTENDENT OF THE AEO OFFICE. EXT.R4(d) TRUE COPY OF THE LEAVE APPLICATION OF THE PETITIONER DATED 31.8.2004.**