IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 W.P.(C).No. 29164 of 2008(V) ---------------------------------- PETITIONER: -------------- FR. K.J. MATHEW, HSA (SOCIAL SCIENCE (RETIRED), ST. JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE. BY ADV. SRI.V.M.KURIAN RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTITUTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. BY GOVT. PLEADER, SRI. A.J. VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 29164 OF 2008 (V) = = = = = = = = = = = = = = = Dated this the 3rd day of October 2008 J U D G M E N T Petitioner was an H.S.A.(Social Studies). According to the petitioner, initially he was appointed in St. Joseph's Boys Higher Secondary School, Kozhikode in a leave vacancy and thereafter he was appointed on a regular basis. It is stated that in 1991 he was transferred to St. Michael's AIHS, Kannur on inter-management transfer. While continuing there, he availed of leave without allowance due to sickness and finally resigned from service on 1.1.1997. According to the petitioner, he recovered from the illness and thereafter was re-appointed as H.S.A., in Dy. Joseph's Boys Higher Secondary School, Kozhikode in a regular vacancy, on 24.8.1998. However, that was not approved by the 4th respondent on the ground that he had crossed the age limit. 2. Against this order of the 4th respondent, appeals and revisions were filed before respondents 1 to 3 and all these were rejected. The records show that the revisional order of the Government was issued on 14.1.2004. Despite this, claiming that age bar is not applicable in cases of re-appointment ,relying on Ext. P5 circular issued by the 2nd respondent, W.P.(C) No. 29164 OF 2008 - 2 - petitioner again approached the Government. That was rejected by Ext. P4. It is challenging Ext. P4, this writ petition is filed. 3. A reading of Ext. P4 shows that the Government have given good reasons in support of its order of rejection. The following portion of Ext. P4 needs to be reproduced and I do so: “Rule 54(1) of Chapter XIV A KER says that pre- resignation service will not be taken into account for any service benefits. This rule does not give any right to any educational authority to approve the appointment of a teacher who exceeds age limit. So the approval of re-appointment of Fr. K.J. Mathew cannot be considered as he has crossed the upper age limit. Besides a resignation that has become effective cannot be undone or ignored. Formal orders at appropriate level should be obtained before a request for withdrawal of resignation which has already become effective/accepted. Even the request for withdrawal of resignation would amount to re-employing the incumbent in service after condoning the period of break. Hence without withdrawing the resignation already accepted, the question of regularization of the period of break does not arise. In the instant case the teacher resigned from the post of H.S.A. in one school, but got fresh appointment in another school under a different educational agency. So also withdrawal of resignation and re-appointment in the same school is not possible and reckoning of pre resignation for service benefits is also not possible. There are 3 specific relaxations involved here. The first is that a person who had resigned from service 13 years ago be considered to have proceeded on LWA only, in order that his previous service is counted for purposes of pension. The second is that the period of absence from service after resignation, amounting to around 3 year, may be treated as LWA. The 3rd is that for a fresh appointment in another school, the upper age limit may be relaxed. It is true that a combination of these 3 relaxations in one case will be the rarest of rare cases. But if agreed to, we will W.P.(C) No. 29164 OF 2008 - 3 - be setting a precedent for each of the cases. Thus for eg.g. large number of persons who have resigned in the past could come forward and claim that their resignation may be cancelled and the period of absence from duty may be treated as L.W.A. If upper age limit is relaxed in one case, there could be large number of other cases where similar requests will come up.” Counsel for the petitioner submits that Chapter XIV A, Rule 51 does not disentitle for approval of his service as the rule does not state that for reappointment age bar will apply. It is also stated that in similar circumstances, by Exts. P6, P7 and P8 orders relief has been granted by the Government itself. 4. I have considered the submissions. First of all, from the facts noted above, it can be seen that the revision was filed by the petitioner against the order declining approval for the re-appointment of the petitioner, was passed by the Government by order dated 14.1.2004 and has become final. That order has not been challenged. It is thereafter that the issue is sought to be reopened by filing a representation which led to Ext. P4 order. In my view, once the dispute has attained finality by the order dated 14.1.2004 it was not permissible for the petitioner to have sought to reopen the issue and on that ground itself, his claim ought to have been rejected. 5. Even otherwise, Rule 54(1) of Chapter XIV A, KER, provides that on reappointment an employee will start as a fresh hand. This W.P.(C) No. 29164 OF 2008 - 4 - necessarily means that everything following his first appointment stands forfeited. If that be so, on that ground also the petitioner is not entitled to the reliefs sought for. 6. In addition to all this, a reading of Ext. P4 shows that the Government have given good reasons for rejecting the petitioner's claim. Ext. P4 also shows that the Government is not disowning Exts. P6, P7 and P8. Even if it is so, in my view so long as the petitioner cannot claim any entitlement based on any rule as such, petitioner cannot derive any advantage out of Exts. P6, P7 and P8. 7. For all these reasons, I am satisfied that Ext. P4 does not call for any interference. Writ petition fails and is dismissed. ANTONY DOMINIC JUDGE jan/-