IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 WA.No. 1203 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN OP.30721/1999 Dated 17/01/2008 .................... APPELLANT/PETITIONER :- ------------------------------------ R.SARASWATHY, UPPER PRIMARY SCHOOL ASSISTANT, KALYAN KRISHNAN MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL, VANDITHAVALAM, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS :- -------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 4. THE MANAGER, KALYAN KRISHNAN MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL, VANDITHAVALAM, PALAKKAD DIST. 5. T.P.MINI, UPPER PRIMARY SCHOOL ASSISTANT, KALYAN KRISHNAN MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL VANDITHAVALAM, PALAKKAD DIST. BY GOVERNMENT PLEADER SRI.BENNY GERVACIS ADV.SRI.A.K.CHINNAN ADV.SRI.K.MOHANA KANNAN THIS WRIT APPEAL HAVING CAME UP FOR ADMISSION ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- W.A. No. 1203 OF 2008 -------------------------------------- Dated this the 25th day of June, 2008 J U D G M E N T RAVIDRAN, J. The petitioner in O.P.No.30721 of 1999 is the appellant. By judgment delivered on 17.01.2008, the learned Single Judge dismissed the Original Petition. The brief facts of the case are as follows:- 2. The appellant was appointed as U.P.S.A. in a leave vacancy for the period from 08.07.1991 to 17.09.1991 by the 4th respondent. The appointment was not approved in time due to various reasons. While the appellant was working as U.P.S.A. in the aforesaid leave vacancy another vacancy of U.P.S.A. arose on 03.09.1991. In that vacancy the 5th respondent was appointed. Yet another vacancy of U.P.S.A. arose on 03.06.1992 and one Sri.Shaji was appointed in that vacancy. Later by Ext.P4 appointment order dated 01.07.1992 the appellant was appointed as U.P.S.A. The said appointment was approved by the District Educational Officer, Palakkad by order passed on W.A.1203/2008 2 18.03.1995 only for the period from 20.01.1993 to 30.03.1993. The appellant was relieved from service on the closing day of the academic year 1992-93, in terms of Rule 49 of Chapter XIV A of the Kerala Educational Rules (hereinafter referred to as the “KER”, for short). The appellant was not paid vacation salary during April and May, 1993 as she did not have eight months continuous service at the end of the academic year 1992-93. The appellant was reappointed as U.P.S.A. on 07.06.1993, by Ext.P5 appointment order and the said appointment was approved with effect from 07.06.1993. 3. More than three years thereafter, the appellant submitted Ext.P8 representation before the Director of Public Instruction seeking approval of her service from 08.07.1991 to 19.01.1993 and payment of salary for the said period contending that though she was appointed initially in a leave vacancy for the period from 08.07.1991 to 17.09.1991 she continued to work in the school as U.P.S.A. and due to the wrongful act of the Manager in not shifting her to the vacancy of U.P.S.A. which arose on 03.09.1991 against which the 5th respondent was W.A.1203/2008 3 appointed, she has been denied approval and salary for the said period. By Ext.P11 order passed on 07.12.1998, the Director of Public Instruction directed the District Educational Officer, Palakkad to approve the appointment of the appellant as U.P.S.A. from 08.07.1991 if she is otherwise eligible. Thereafter, the appointment of the appellant as U.P.S.A. for the period from 08.07.1991 to 17.09.1991 was approved as can be seen from the endorsements on Ext.P14. The appellant thereafter filed O.P.No.30721 of 1999 seeking the following reliefs : “ a. direct the 1st, 2nd and 3rd respondents to implement Ext.P11 order. b. To direct the 4th respondent to submit the appointment order in respect of petitioner from 08.07.1991 as directed in Ext.P11 with connected papers to the 3rd respondent. c. To direct the respondents 1 to 3 to take action against the Manager under Chapter III Rule 7. d. To direct the 3rd respondent to approve the petitioner as UPSA from 08.07.1991 as directed in Ext.P11. e. To direct the respondents 1 to 3 to recover the amount equal to the salary due to the petitioner W.A.1203/2008 4 on the basis of approval ordered in Ext.P11 from the 4th respondent Manager by Revenue Recovery Proceedings and disburse the same to the petitioner and to assign seniority to petitioner on the basis of approval from 08.07.1991. f. direct the respondents 1 to 3 to disqualify the 4th respondent Manager from the post of Manager for having failed to obey the order Ext.P11.” 4. The learned Single Judge who heard the writ petition held that there was latches on the part of the appellant in not challenging the order passed by the District Educational Officer approving her appointment as U.P.S.A. made as per Ext.P4 with effect from 01.07.1992, by restricting the approval only for the period from 20.01.1993 to 30.03.1993. The learned Single Judge also noticed that even in Ext.P8 representation which was filed belatedly, the appellant had not sought any reliefs in that regard. The learned Single Judge also noticed that it was only in Ext.P15 representation dated 17.08.2000 that the appellant requested the Director of Public Instruction, to grant her seniority above the 5th respondent and to approve her appointment with from W.A.1203/2008 5 18.09.1991. It was nearly two years after Ext.P11 that she moved the Director of Public Instruction seeking that relief. The reliefs prayed for in the writ petition were declined after recording the fact that her appointment as U.P.S.A. from 08.07.1991 to 17.09.1991 has been approved as directed in Ext.P11. 5. We have heard Sri.Sajan Vargheese, the learned Counsel appearing for the appellant. The learned counsel submitted that in the light of Ext.P11, the appellant is entitled to have her appointment as U.P.S.A. approved from 08.07.1991 without break and that she is entitled to arrears of salary for the period from 08.07.1991 to 19.01.1993 treating her as in continuous service from 08.07.1991 pursuant to her initial appointment as U.P.S.A. No material has been produced to substantiate the said claim. The appellant was initially appointed as U.P.S.A. in a leave vacancy for the period from 08.07.1991 to 17.09.1991. Thereafter she was appointed as U.P.S.A. only on 01.07.1992 by Ext.P4 order and the said appointment was approved only for the period from 20.01.1993 to 30.03.1993. She was again appointed as U.P.S.A. on 07.06.1993 by Ext.P5, W.A.1203/2008 6 appointment order. That being the situation, the appellant is not entitled to contend that she was in continuous service during the period from 18.09.1991 to 06.06.1993. The appellant did not choose to challenge the limited approval granted to her appointment under Ext.P4 for a long period. The appellant was relieved from service on 31.03.1993 at the end of the academic year 1992-93 and was reappointed as U.P.S.A. only on 07.06.1993 and that appointment was approved. It was only on 09.09.1998 when she submitted Ext.P8 representation before Director of Public Instruction that the appellant sought approval of her service from 08.07.1991 to 17.09.1991. Even in that representation she did not choose to challenge the restricted approval granted to her appointment under Ext.P4. The learned Single Judge held that the appellant is guilty of latches in not challenging the limited approval granted to her appointment in Ext.P4. The appellant suffered the consequences of the limited approval granted to her under Ext.P4. The appellant has also not chosen to challenge the appointment given to the 5th respondent on 03.09.1991 in time. At this distance of time, the appellant W.A.1203/2008 7 cannot therefore contend that she is entitled to seniority over the 5th respondent. We are of the opinion that no grounds have been made out for our interference with the judgment of the learned Single Judge. The Writ Appeal accordingly fails and it is dismissed in limine. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE pac