IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No. 1024 of 2009(V) PETITIONER: --------------- JYOTI R, W/O.SIVAPRASAD B,AGED 38, KALIYIKKAL HOUSE, ERUVA EAST P.O, KAYAMKULAM. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENTS: --------------- 1. STATE OF KERALA REP.BY THE SECRETARY, EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 3. THE ASSISTANT DISTRICT EDUCATIONAL OFFICER MAVELIKKARA. 4. THE MANAGER,S.K.V HIGH SCHOOL,PATHIYOOR, ERUVA EAST P.O,KAYAMKULAM. GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 1024 OF 2009 V ------------------------------------------------------ Dated this the 12th January, 2009 JUDGMENT The petitioner is working as High School Assistant (Malayalam) in S.K.V.High School, Pathiyoor. The petitioner was appointed in a leave vacancy as per Ext.P1 appointment order dated 3.9.1996 and it was approved. Again, she was appointed in another leave vacancy from 1.6.1998 to 26.8.1998 as per Ext.P2 appointment order dated 1.6.1998. It is stated that a regular vacancy of H.S.A.(Malayalam) arose in the School on 5.6.2000 on the retirement of one Vilasiniamma. The petitioner, who is a Rule 51A claimant, preferred a representation dated 7.6.2000, claiming appointment as H.S.A.(Malayalam) in the vacancy which arose on the retirement of Vilasiniamma. When she did not get appointment, the petitioner filed O.P.No.24038 2000, which was disposed of as per Ext.P3 judgment dated 23.8.2000, directing the District Educational Officer to consider the representation submitted by the petitioner. 2. As per Ext.P4 order dated 18.11.2000, the petitioner was appointed in the retirement vacancy of Vilasiniamma with effect from 7.6.2000, the date on which the petitioner submitted the application for appointment to the post. It is also stated in Ext.P4 that the appointment W.P.(C) NO.1024 OF 2009 :: 2 :: would be subject to the final decision in W.A.No.897 of 2000. The petitioner contends that she is entitled to all service benefits on the premise that she was appointed with effect from 7.6.2000, in terms of Ext.P4. It is stated that the petitioner was eligible for the higher grade taking into account the date of her appointment as 7.6.2000. Ext.P5 request along with the form of option was submitted by the petitioner to the District Educational Officer on 7.4.2008. Ext.P5 was returned as per Ext.P6 with the following endorsement: “The teacher has approved service w.e.f. 20.11.00 vide order No.B4.5758/00/K.Dis. dated 23.12.00 of the DEO. As such the period reckoned w.e.f.7.6.2000 to 19.11.00 is not admissible for grade or other service benefits. As such her grade will due only on 20.6.2008.” Being aggrieved by Ext.P6, the petitioner submitted Ext.P7 representation dated 12.6.2008 to the District Educational Officer claiming that the petitioner is entitled to all the benefits taking her date of appointment as 7.6.2000. Since Ext.P7 was not disposed of expeditiously, the petitioner filed W.P.(C) No.20992 of 2008. That Writ Petition was disposed of as per Ext.P9 judgment dated 11.7.2008, directing the District Educational Officer to dispose of Ext.P7 representation expeditiously and, at any rate, within a period of two months from the date of receipt of a copy of the judgment. As directed in Ext.P9 judgment, the District Educational Officer passed Ext.P11 order dated 16.10.2008, which is under challenge in this Writ Petition. W.P.(C) NO.1024 OF 2009 :: 3 :: 3. Ext.P11 would disclose that the claim which was raised by the petitioner was considered and rejected earlier as per order No.B4- 2447/2006/DDis. dated 30.6.2006 and that order was passed based on the direction in O.P.No.3761 of 2001 dated 16.2.2006. The order passed by the District Educational Officer dated 30.6.2006 was not challenged. It is also stated in Ext.P11 that the petitioner commenced working as teacher only since 20.11.2000. In the declaration of probation, the period from 7.6.2000 to 19.11.2000 was not seen reckoned as the petitioner did not work during that period. It was held in Ext.P11 that the period from 7.6.2000 to 19.11.2000 is not admissible for any service benefits as the petitioner had approved service only with effect from 20.11.2000, the date on which she joined duty. 4. Learned counsel for the petitioner submitted that in view of Ext.P4, the District Educational Officer was not justified in rejecting the claim made by the petitioner. The order dated 30.6.2006 passed by the District Educational Officer, which is referred to in Ext.P11 order is produced along with this Writ Petition as Ext.P10. For the first time, in this Writ Petition, the petitioner discloses that she had filed O.P.No.3761 of 2001 and that as per the direction in that judgment Ext.P10 order was passed on 30.6.2006. The averment in paragraph 6 of the Writ Petition is that due to an oversight, the petitioner failed to produce Ext.P10 order in W.P.(C) NO.1024 OF 2009 :: 4 :: the Writ Petition filed by her as W.P.(C) No.20992 of 2008. It is to be noted that Ext.P10 order was not challenged by the petitioner at any point of time and it has become final. While the petitioner filed W.P.(C) No.20992 of 2008 which resulted in Ext.P9 judgment in favour of the petitioner, she did not disclose the existence of Ext.P10 order passed by the District Educational Officer on 30.6.2006. Had she mentioned about that order, Ext.P9 judgment would not have been passed. She got Ext.P9 judgment in her favour only after suppressing material and relevant facts. At the time when Ext.P9 judgment was passed, the claim of the petitioner was concluded by Ext.P10 order dated 30.6.2006. Therefore, there was no justification for a direction being issued by this Court, as it was done in Ext.P9 judgment, directing the District Educational Officer to consider the matter which had become final. The petitioner led this Court to pass such a wrong judgment and led this Court to issue a direction to the District Educational Officer to consider the matter again which had become final and conclusive in the year 2006. Having suppressed material facts, the petitioner is not entitled to any relief, much less any discretionary relief, as held by this Court in (G.Appukkuttan Pillai v. Government of India and others (AIR 1970 Kerala 110) and Ajith v. Executive Engineer, KSEB (1987 (1) KLT 272). 5. What is challenged in the present Writ Petition is Ext.P11 order W.P.(C) NO.1024 OF 2009 :: 5 :: passed by the District Educational Officer on the second occasion. Even now Ext.P10 order is not under challenge. The petitioner cannot evidently challenge Ext.P10 order now, since it was passed on 30.6.2006, about three years back. There is no explanation for the petitioner as to why she did not challenge Ext.P10 order earlier. Learned counsel for the petitioner submitted that the petitioner may be afforded an opportunity to amend the Writ Petition to include a prayer challenging Ext.P10. I do not think that such a prayer can be made now since there is a long delay after passing Ext,.P10 order. Secondly, the petitioner is not entitled to any such indulgence since she had misled this Court earlier and got Ext.P9 judgment in her favour. She also caused difficulties to the educational authorities by inviting a second finding as per Ext.P11 while her claim was concluded by an earlier order dated 30.6.2006. To my mind, the petitioner is not entitled to any relief in the Writ Petition, she having misled this Court and also misled the educational authorities. Petitioner, being a teacher, should not have indulged in such adventures. The Writ Petition is devoid of merit and it is dismissed with costs of Rs.1,500/-. (K.T.SANKARAN) Judge ahz/