IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 24641 of 2003(H) -------------------------- PETITIONER: --------------- V.M.SUJITHA, W/O G.VINOD, AGED 30 YEARS, THOTTATHUVILA, KOTTAPURAM, PARAVUR, KOLLAM – 691 301. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A)DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, COLLECTORATE BUILDING, KOLLAM- 691 013. 4. THE MANAGER, KOTTAPPURAM HIGH SCHOOL, PARAVUR-691 301, KOLLAM DISTRICT. 5. THE HEADMISTRESS, KOTTAPPURAM HIGH SCHOOL, PARAVUR-691 301, KOLLAM DISTRICT. 6. SMT.B.L.RESMI, BALAKRISHNA MANDIRAM, CHIRAKKARATHAZHAM, KALLUVATHUKKAL – 691 578. ADDL.R7 IMPLEADED: R7: BINDU B.S., AISWARYA, MAMPALLIKKUNNAM, CHATHANNOOR. (ADDL.R7 IMPLEADED AS PER ORDER DATED 24.7.07 IN I.A.No.9053/2007 IN W.P.(C)No.24641/03). ADDL.R8 IMPLEADED: R8: SREELEKHA I., UPSA, KOTTAPPURAM HIGH SCHOOL, PARAVUR, KOLLAM DISTRICT. (IMPLEADED AS ADDL.R8 VIDE ORDER DATED 10.8.2011 ON I.A.No.6786/10) GOVERNMENT PLEADER SMT.NISHA FOR R1 TO 3 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R4 SMT.N.SANTHA FOR R4 SRI.PETER JOSE CHRISTO FOR R4 SRI.S.A.ANAND FOR R4 DR.K.P.KYLASANATHA PILLAY, SENIOR ADVOCATE SMT.SREEDEVI KYLASANATHFOR ADDL.R7 SRI.M.V.THAMBAN FOR R6 ADV. SRI.V.VENUGOPALAN NAIR FOR R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.24641/03 PETITIONER'S EXTS: EXT.P1: COPY OF ORDER NO.D.DIS/53511/97/DPI/ETI OF THE 2ND RESPONDENT DT.1.2.99. EXT.P2: COPY OF ORDER NO.B1-16808/96 OF THE 3RD RESPONDENT DT.8.12.97. EXT.P3: COPY OF ORDER NO.ETI/61551/98/DPI OF THE 2ND RESPONDENT DT.3.12.99. EXT.P4: COPY OF ORDER NO.B1-6505/2000/L.DIS. OF THE 3RD RESPONDENT DT.7.5.01. EXT.P5: COPY OF GO(RT)NO.3407/2001/G.EDN. OF THE GOVERNMENT DT.12.9.01. EXT.P6: COPY OF THE REPRESENTATION OF THE PETITIONER DT.27.10.2001. EXT.P7: COPY OF THE ORDER NO.B1-11851/02 OF THE 2ND RESPONDENT DT.17.6.02. EXT.P8: COPY OF THE REPRESENTATION OF THE PETITIONER DT.24.7.02. EXT.P9: COPY OF ORDER NO.9717/A3/03/G.EDN. OF THE GOVERNMENT DT.18.3.03. EXT.P10: COPY OF ORDER NO.9717/A3/03/G.EDN. OF THE GOVERNMENT DT.18.3.03. EXT.P11: COPY OF HEARING NOTICE NO.ET1/026696/2003/DPI OF THE 2ND RESPONDENT DT.26.4.03. EXT.P12: COPY OF THE EXTRACT OF THE ATTENDANCE REGISTER OF DECEMBER, 1996. EXT.P13: COPY OF THE -DO- -DO- EXT.P14: COPY OF THE PETITION OF SMT.B.L.RESMI DT.27.10.01 RESPONDENTS' EXTS: EXT.R7(A): COPY OF THE 7TH RESPONDENT'S APPROVAL OF APPOINTMENT DT.5.5.2004 FOR THE PERIOD FROM 9.8.2000 TO 12.12.2000. EXT.R7(B): COPY OF APPOINTMENT ORDER DT.1.6.07 ISSUED BY THE 4TH RESPONDENT. EXT.R8(B): COPY OF LETTER NO.A4-4983/10 DT.24.6.10. EXT.R8(C): COPY OF LETTER NO.A4-12329/2010 DT.15.12.10. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.24641 Of 2003 -------------------------------------------------- DATED THIS THE 10th DAY OF AUGUST, 2011 J U D G M E N T This Writ Petition is filed by the petitioner challenging various orders culminating in Exhibit P9 by which the approval of appointment of the petitioner was refused on the plea that there was a Rule 51A claimant waiting for appointment. 2. This is a case where the 6th respondent is pitted against the petitioner as far as the claim under Rule 51A is concerned. It is the admitted case that the 6th respondent was working as HSA(Maths) from 9.10.1995 to 21.12.1995 and the appointment has been approved. One Smt.C.S.Anitha, HSA (Maths) was on maternity leave from 3.12.1996 to 2.3.1997 and the 6th respondent was appointed in that vacancy. 3. The case of the petitioner is that as the 6th respondent was not attending the school since she was in the advanced stage of pregnancy, the Manager appointed the petitioner from 18.12.1996 to 2.3.1997. But her approval of appointment was rejected by the Educational Officer. An appeal W.P.(C)No.24641/03 -2- filed against the same was also rejected. Finally, the Government by Exhibit P5 order accorded sanction for the approval of appointment of the petitioner in the maternity leave vacancy of Smt.C.S.Anitha provided there is no Rule 43/51A claimant eligible for appointment in the vacancy and that the petitioner was fully qualified to hold the post. 4. In the meanwhile the 6th respondent submitted a claim before the District Educational Officer as per Exhibit P6 and finally by Exhibit P7 holding that the 6th respondent is a rightful claimant, the District Educational Officer rejected the approval of appointment of the petitioner and finally the Government also found that since there is a Rule 51A claimant waiting for appointment, the request of the petitioner cannot be considered. 5. The learned counsel for the petitioner submitted that the 6th respondent was actually appointed from 3.12.1996 and after six days because of advanced stage of pregnancy she failed to attend duties and therefore it resulted in abandonment of service itself. It is therefore submitted that as the petitioner was appointed from 18.12.1996 in an established vacancy, the petitioner is entitled for approval. The contention thus raised is W.P.(C)No.24641/03 -3- that as the physical presence of the 6th respondent could not be ensured by any stretch of imagination because of her advanced stage of pregnancy, it should be deemed that she has abandoned her right itself. 6. The learned counsel for the 6th respondent and the learned counsel appearing for rival contesting respondents submitted that there cannot be a case of abandoning of the right by the 6th respondent on the facts of this case since the Rule 51A claimant has got a preferential right for appointment under the said Rule. The preferential right obtained by a claimant under Rule 51A can be forfeited only after the Manager complies with the procedure prescribed under Note (2) to Rule 51A and there is failure on the part of the claimant to accept the appointment after the appointment order is served pursuant to the issuance of mandatory notices therein. The legal position as regards the same is settled by the decision of this Court in Pathumma v. State (1986 KLT 166). 7. The contention raised by the petitioner that as the 6th respondent was not sanctioned any leave, she has lost her preferential right will not therefore hold good. It is well settled W.P.(C)No.24641/03 -4- that even a relinquishment letter relied upon by a Manager cannot result in loss of the preferential right unless Note (2) to Rule 51A is complied with by the Manager. 8. Therefore, as rightly held by the District Educational Officer, the 6th respondent's claim under Rule 51A is not lost and the petitioner cannot get approval of appointment in that vacancy. 9. With regard to the contesting respondents 7 and 8, they were appointed in the later vacancies and their approvals of appointment are still awaited in view of the interim order passed in this Writ Petition. It is also brought to my notice that the petitioner herself was appointed in a different school from 1.6.2009 as an Upper Primary School Assistant. 10. There is no merit in this Writ Petition and the same is dismissed. There is no legal embargo for passing orders on the proposal for approval of appointment of other contesting respondents herein. No costs. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn