IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 5305 of 2004(F) ------------------------------ PETITIONER: -------------- JYOTHI GOPINATH, W/O. C.K. BALAKRISHNAN AGED 31 YEARS, PLATHANATHIL HOUSE, CHANDANAKAMPARA P.O., KANNUR DISTRICT-670 633, UPSA, PKMUP SCHOOL, ALPATTAKULAMBA, KODUR. BY MR.R.SREERAJ, ADVOCATE. MR.S.D.ASOKAN, ADVOCATE. MR.NIDHI BALACHANDRAN, ADVOCATE. MR.ANIL R. NAIR, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. ASSISTANT EDUCATIONAL OFFICER, MALAPPURAM. 5. THE MANAGER, P.K.M.U.P. SCHOOL, ALPATTAKULAMBA, KODUR P.O.-676 504. 6. DEEPITHA GOPINATH, EX.UPSA, PKMUP SCHOOL, ALPATTAKULAMPA, KODUR P.O.-676 504. BY MR. A.J. VARGHESE, SR. GOVERNMENT PLEADER FOR R1TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5305/2004 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PETITIONER'S APPOINTMENT ORDER AS U.P.S.A IN PKMUP SCHOOL, ALPATTAKULAMBA, KODUR DTD. 1.8.01 ISSUED BY R5. EXT. P2 : COPY OF APPEAL DTD. 7.9.01 FILED BY R5 BEFORE R3. EXT. P3 : COPY OF ORDER DTD. 28.1.02 ISSUED BY R3. EXT. P4 : COPY OF ORDER DTD. 24.4.02 ISSUED BY R4. EXT. P5 : COPY OF REVISION PETITION DTD. 4.4.02 SUBMITTED BY R5 TO R2. EXT. P6 : COPY OF ORDER DTD. 4.12.2002 ISSUED BY R2. EXT. P7 : COPY OF REVISION PETITION DTD. 10.1.03 SUBMITTED BY PETITIONER BEFORE THE GOVT. EXT. P8 : COPY OF GOVT. CIRCULAR No.ET 3/87201/96 DTD.6.1.97. EXT. P9 : COPY OF ORDER No.32729/B1/03/G.E DTD. 26.8.03 ISSUED BY R1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.5305 OF 2004 --------------------------------------- Dated this the 3rd day of June, 2010. J U D G M E N T The petitioner is aggrieved by the respective orders Exhibits P3, P6 and P9 passed by the Educational authorities as well as by the Government. There is a further prayer to direct the respondents to approve the appointment of the petitioner as U.P.S.A (leave substitute) for the entire period of her service from 01.08.2001 to 31.07.2002 and to disburse her arrears of salary and other allowances. 2. The short facts leading to the dispute are the following: The petitioner was appointed as U.P.S.A as per Exhibit P1 order in the leave vacancy of Smt.Saleena Ammien, U.P.S.A for two years from 01.08.2000 to 31.07.2002. Initially one Smt.Saraswathy was appointed in that leave vacancy from 01.08.2000 to 31.07.2001. On her resignation from service, the petitioner was appointed from 01.08.2001. 3. The 6th respondent was appointed in another leave W.P.(C) No.5305/2004 2 vacancy for the period from 09.07.2001 to 20.11.2001 when Smt.K.R.Rajasree took maternity leave. The appointment of the petitioner was approved only from 01.08.2001 to 21.11.2001 going by Exhibit P1 as the 6th respondent became a senior claimant. The appointment of the 6th respondent was approved from 09.07.2001 to 20.11.2001. It appears, the 5th respondent Manager had filed an appeal as per Exhibit P2 seeking approval of appointment of the petitioner for the remaining period. Exhibit P3 is the order passed therein after noticing that the appeal on appointment of senior claimant Smt.Deepitha Gopinath has been allowed and accordingly the Assistant Educational Officer was directed to approve the petitioner's appointment from 01.08.2001 to 21.11.2001. There is a further direction in Exhibit P3 that the 6th respondent is to be provided in the vacancy of Saleena Ammien from 21.11.2001 to 31.07.2002. 4. Meanwhile, there was another development that the 6th respondent relinquished her right for appointment for a period of one year from 20.11.2001 to 19.11.2002. This temporary relinquishment was approved by the Assistant Educational Officer W.P.(C) No.5305/2004 3 as per Exhibit P4 order. The 5th respondent filed a revision petition before the Director of Public Instruction seeking to approve the appointment of the petitioner from 21.11.2001 to 31.07.2002 which stands rejected by Exhibit P6 order. It was found that the temporary relinquishment is not allowable. The view taken, however, is that there is no provision to approve the appointment of a junior as the senior claimant is out of service. Even though a further representation was filed before the Government, that also was rejected by Exhibit P9 order. 5. The 4th respondent has filed a counter affidavit. Learned counsel for the petitioner submitted that the finding in Exhibit P9 that there is no provision for temporary relinquishment is not correct in the light of Exhibit P8 circular of the Director of Public Instruction. The said circular also refers to the previous circular dated 09.10.1987. It is, therefore, submitted that the view taken by the Government and the Director of Public Instruction with regard to the rejection of the approval of temporary relinquishment cannot be supported. It is further pointed out that the petitioner was appointed from 01.08.2001 to 31.07.2002 W.P.(C) No.5305/2004 4 and the rejection of approval for the period from 21.11.2001 to 31.07.2002 is not correct as the petitioner was appointed for that period also by Exhibit P1 order. 6. As regards acceptance of temporary relinquishment, it is averred in paragraph 13 of the counter affidavit that temporary relinquishment permitted by Exhibit P8 circular has been cancelled as per circular No.ET3.91423/01 dated 10.05.2002 in obedience to Government direction in Government letter No.67150/L2/00/G.Edn. dated 28.11.2001. It is further pointed out that the 6th respondent being a senior claimant having approved service from 09.07.2001 to 20.11.2001, she has the right to get appointed in the longer vacancy. 7. The approval of the temporary relinquishment was ordered by the Assistant Educational Officer as per Exhibit P4 dated 24.04.2002. Actually this was after the issuance of Government letter dated 28.11.2001 referred to in paragraph 13 of the counter affidavit. Therefore, the view taken in Exhibit P6 that the temporary relinquishment is not permitted cannot be said to be faulty. Even though the circular cancelling Exhibit P8 W.P.(C) No.5305/2004 5 was issued only on 10.05.2002, that will not save the order Exhibit P4 since it is issued after the Government letter dated 28.11.2001. 8. Herein, the senior claimant's approval is from 09.07.2001 to 20.11.2001. On such approval, she becomes a claimant under Rule 51A of Chapter XIV-A K.E.R. A right conferred on a claimant under Rule 51A will be lost only if pursuant to the procedure of appointment as per Note 2, the teacher does not join duty resulting in forfeiture of the preferential right. Herein, evidently, the said procedure has not been followed. Therefore, as the procedure for acceptance of the temporary relinquishment was not allowable, it cannot be said that automatically the petitioner gets a right to get appointment for the period from 21.11.2001 to 31.07.2002. I am fortified in this view in the light of the decision of a Division Bench of this Court in Geetha vs. Geo Thomas (2009 (4) KLT 514). Therefore, the view taken in Exhibit P6 that there is no provision to approve the appointment of a junior as the senior claimant was out of service cannot be said to be faulty. The W.P.(C) No.5305/2004 6 Government Order Exhibit P9 is also one issued after considering all the aspects in the light of the above factual and legal position. Therefore, the petitioner is not entitled for approval of appointment for the period from 21.11.2001 to 31.07.2002. Hence this writ petition is dismissed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp