IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 14687 of 2006(W) --------------------------------------- PETITIONER: ------------------- SRI.UNNIKRISHNAN.R., S/O.K.RAVEENDRAN PILLAI, AGED 31 YEARS, RESIDING AT "USHUS", KALLELIBHAGOM P.O., KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM), ADV. SRI.S.HARIKRISHNAN. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, CHAVARA. 5. THE MANAGER, S.K.V.U.P.S., MYNAGAPPALLY, KOLLAM. 6. SMT.O.SEEMA, U.P.S.A., S.K.V.U.P.S., MYNAGAPPALLY, KOLLAM. R1 TO R4 BY GOVERNMENT PLEADER SRI. T.T. MOHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14687/2006-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 01/07/94 ISSUED BY THE R.5. IN FAVOUR OF THE PETITIONER. EXT.P.2: COPY OF THE ORDER NO. K. DIS/F4-73821/2000/DPI DTD. 03/04/2001 ISSUED BY THE DPI REJECTING THE APPROVAL OF R.6. EXT.P.3: COPY OF THE G.O. (RT).NO.1705/03/G. EDN. DTD. 07/05/2003 ISSUED BY THE R.1. ORDERING APPROVAL OF APPOINTMENT OF THE R.6 FOR THE PERIOD FROM 17/08/98 TO 03/01/99. EXT.P.4: COPY OF THE G.O. (RT).NO.2864/03/G. EDN. DTD. 19/07/2003 ISSUED BY THE R.1. ORDERING APPROVAL OF APPOINTMENT OF THE R.6 FOR THE PERIOD FROM 12/01/99 TO 25/03/99. EXT.P.5: COPY OF THE ORDER NO. F4/62222/01/DPI DTD. 26/11/2001 ISSUED BY THE R.2. ORDERING APPROVAL OF APPOINTMENT OF THE R.6 FOR THE PERIOD FROM 23/11/99 TO 24/01/00. EXT.P.6: COPY OF THE G.O. 9RT).NO.3039/04/G. EDN. DTD. 26/05/2004 ISSUED BY THE R.1. ORDERING APPROVAL OF APPOINTMENT OF THE R.6 W.E.F. 02/07/01. EXT.P.7: COPY OF THE ORDER NO. C.2645/2000/K.DIS. DTD. 12/12/2000 ISSUED BY THE A.E.O REFUSING APPROVAL OF APPOINTMENT OF THE PETITIONER IN PALLISSERIKKAL L.P.S. EXT.P.8: COPY OF THE COMMON JUDGMENT DTD. 11/07/2005 IN W.P.26795/2003 & W.P. 24304/2004. EXT.P.9: COPY OF THE G.O. (RT).NO.5744/05/GE DTD. 12/12/2005 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.14687/2006 ----------------------------------------------------------- Dated this the 25th day of November, 2008 JUDGMENT Petitioner challenges Ext.P9. A direction against respondents 1 to 5 is also sought for requiring them to recognize the 51-A claim of the petitioner in SKVUPS, Mynagappally and to appoint him retrospectively on the date on which the 6th respondent was appointed in the school. 2. The facts of the case are that the petitioner was appointed as UPSA in the SKVUPS, Mynagappally, initially for the period from 1.7.1974 to 31.10.1994. That was approved also. Subsequently, petitioner rendered service during four spells in the Pallisserikkal LPS ( here-in-after referred to as the second school). In that school, petitioner was appointed against an anticipated post, with effect from 5.6.2000. While he was continuing in that post in the 2nd WP(c).No.14687/06 2 school, the 6th respondent was appointed in the first school, SKVUPS, Mynagappally, with effect from 2.7.2001 on a permanent basis. Prior to that, she had rendered service in three spells during the period 1998-2001. 3. The appointments of the 6th respondent, including her regular appointment, were approved by the departmental authorities and these were challenged by the petitioner before this court in WP(c) Nos.24304/04 and 26795/03. These writ petitions were disposed of by Ext.P8 judgment quashing the impugned orders on the ground that those orders were passed without hearing the petitioner. Accordingly, the matter was directed to be reconsidered by the first respondent. The first respondent there upon heard the parties and rendered Ext.P9, rejecting the contentions raised by the petitioner and upholding the appointment of the 6th respondent. It is challenging Ext.P9 that this writ petition is filed. 4. The contention raised by the learned counsel for the petitioner is that he being a Rule 51-A claimant, the WP(c).No.14687/06 3 Manager had an obligation to issue appointment order, when the leave vacancies and the regular vacancy to which the 6th respondent was appointed. It is contended that the petitioner was the rightful claimant to the leave vacancy and also to the permanent vacancy. However, the stand taken by the second respondent in the counter affidavit filed is that the petitioner had rendered service as UPSA in SKVUPS, Mynagappally and that therefore he was a 51-A claimant. It is stated that at the time when the 6th respondent was appointed for the first time on 17.8.1998 the petitioner was working as LPSA in the second school. It is stated that the service rendered by him in the second school was an approved service and that on 5.6.2001 the petitioner was appointed in the second school against a regular vacancy in a newly created post. It is stated that the appointment was not approved by the AEO for want of sufficient accommodation and thereafter the petitioner relinquished his claim with effect from 24.10.2001. According to the 2nd respondent, subsequently on appeal WP(c).No.14687/06 4 appointment was approved and the benefits were also released on 21.3.2003.On this basis, it is contended that as on 2.7.2001, when the 6th respondent was appointed to a regular post, petitioner was working in the second school against a regular vacancy and thus forfeited his claim under rule 51-A Chapter XIV-A KER. The other contention raised is that, prior to the appointment of the 6th respondent on 2.7.2001, the Manager of SKVUPS, Mynagappally had issued a memo to the petitioner on 11.6.2001 informing the availability of a new vacancy. 5. In the counter affidavit filed by the respondents it is stated that, at the time of appointment of the 6th respondent in the SKVUPS, Mynagappally in a regular post on 2.7.2001, the petitioner was working against a regular post in the second school and that later on finding that the appointment could not be approved for want of sufficient accommodation petitioner decided to change his option by relinquishing his claim in the second school. WP(c).No.14687/06 5 6. From the facts it can be seen that on 5.6.2001, the petitioner was regularly appointed in the second school. Though his appointment was not approved, facts remains that he relinquished his claim against that post and get himself relieved only on 24.10.2001. It is prior to that on 2.7.2001, the 6th respondent was appointed in a permanent vacancy. Therefore, at the time when the 6th respondent was permanently appointed, petitioner was working in the second school. If that be so, in my view, petitioner had no claim against the vacancy to which the 2nd respondent was appointed. True, under Note 2 to Rule 51A chapter XIV-A KER, it is obligatory on the Manager to issue order of appointment to the teacher in the manner as provided therein. In both Exts.P9 and in the counter affidavit filed, it is stated that on 11.6.2001, the Manager had issued memo intimating the petitioner about the new vacancy. Even in the writ petition there is no plea disputing the correctness of this finding in Ext.P9. In the counter affidavit filed by the 2nd respondent also this point is raised and is not WP(c).No.14687/06 6 contradicted by a reply affidavit. Therefore, this factual position is not in dispute. True, the counsel for the petitioner contends that the intimation of a vacancy does not satisfy the requirement of Note.2. But then, having regard to the fact that the Manager had intimated the petitioner about the availability of the vacancy, there is substantial compliance of Note-2. Therefore, for the reasons that on the date of appointment of 6th respondent on 2.7.2001, the petitioner was working against a permanent post in the second school and that he did not avail of the opportunity extended by the Manager on 11.6.2001, the petitioner is not entitled to the reliefs sought for. Writ Petition fails and is dismissed. ANTONY DOMINIC vi JUDGE WP(c).No.14687/06 7