IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 WA.No. 549 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.18016/2000 Dated 30/10/2007 .................... APPELLANT/6TH RESPONDENT: -------------------------- SAJU, DRAWING TEACHER, ST.JOSEPH'S HIGH SCHOOL, MATHILAKAM, KODUNGALLOOR, THRISSUR DISTRICT. BY ADV. SRI.N.RAGHURAJ RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5 IN THE OP: --------------------------------------------------------- 1. T.N. VINOJ, S/O. NARAYANAN, THANDASSERY HOUSE, MATHILAKAM, KODUNGALLOOR, THRISSUR DISTRICT. 2. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 6. THE MANAGER, ST. JOSEPH'S HIGH SCHOOL, MATHILAKAM, KODUNGALLOOR, THRISSUR DISTRICT. R1 BY ADV. SRI.A.JAYASANKAR R1 BY ADV. SRI.MANU GOVIND BY ADV. SRI.N.N.SUGANAPALAN (SR) BY ADV. SRI.K.C.ELDHO BY ADV. SRI.BALAKRISHNAN GOPINATH BY ADV. SRI.S.SUJIN BY ADV. SRI.KRB.KAIMAL (SR) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2008 ALONGWITH WA.NO.550 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & K.Hema, JJ. -------------------------------------- W.A. Nos. 549 & 550 of 2008 --------------------------------------- Dated this the 31st day of March, 2008 Judgment Koshy,J. Writ Petitioner (first respondent in both these appeals) was appointed as a drawing teacher in the fifth respondent's school for a period from 2.1.1995 to 16.3.1995 as against the leave vacancy of one Sri.K.I. Joseph. His appointment was approved as per the order of the third respondent as can be seen from Ext.P1. When subsequent vacancy arose, petitioner stated that he is entitled to the claim under rule 51-A of the Kerala Education Rules. Since that was not accepted, petitioner approached this court and by Ext.P3 judgment in O.P.No.17339 of 1996, this Court held that appointment of appellant in W.A.No.549 of 2008 shall not be approved in defiance to the claim of the petitioner under rule 51-A also. Appointment of the writ petitioner was finally approved by Ext.P4 order. Thereafter, petitioner filed O.P.No.14184 of 1998-L. Contention of the management was that he has relinquished his right under rule 51-A and rule 14-A of the Kerala Education Rules. But, that was not accepted. By Ext.P8 judgment, this court directed W.A.Nos.549 and 550/2008 2 the authorities to consider the matter and, finally, it was held that petitioner's claim for rule 51-A, K.E.R., was valid and there was no legal relinquishment. It is now settled law that for relinquishing the claim under rule 51-A, statutory requirements had to be complied with. Petitioner was not informed of the vacancy. In Poornima v. Director of Public Instructions (2005 (3) KLT 502) and Nalini v. State of Kerala (2001 (2) KLT 273), it was held that statutory rules under rule 51-A of Chapter XIV-A Kerala Education Rules are not to be lightly taken as such relinquishment has to be considered strictly. Earlier filing of the representations and filing of writ petition also would show that he has not relinquished the office. In any event, provisions regarding relinquishment of rule 51-A claim were not complied with. Therefore, learned single Judge directed that petitioner is entitled to be appointed. After going through the findings, we are of the opinion that the learned single Judge is right in quashing Ext.P9 and holding that petitioner is entitled to appointment in the vacancy that arose on 3.6.1996 due to the retirement of Sri.K.I.Joseph. 2. Now, the question is what is the equitable orders to be passed in this case. We are of the view that since sixth respondent was working in the school, salary paid to him shall not be taken back till the date of the judgment of the learned single W.A.Nos.549 and 550/2008 3 Judge (30.10.2007). Even though petitioner is entitled to appointment from 3.6.1996, he need be given salary only from 1.11.2007. He will be deemed to be in service from 3.6.1996 for the purpose of seniority. Salary shall be paid to the appellant in W.A. No.549 of 2008 upto 30.10.2007, the date of the judgment of the learned single Judge and the writ petitioner shall be paid salary with effect from 1.11.2007. He should be appointed immediately with effect from 3.6.1996 notionally. Pay etc. shall be fixed accordingly. Actual salary need not be paid for the period after 1.11.2007. In view of the peculiar facts of this case, the proposed action against the manager and DEO shall be dropped. This will not prevent the appellant from taking any proceedings for damages against the manager as it is contended that he is not responsible for his appointment as but for this appointment, he lost an opportunity to get himself appointed in any other school within the age bar. Both appeals are disposed of accordingly. J.B.Koshy Judge K. Hema Judge vaa W.A.Nos.549 and 550/2008 4 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- W.A.Nos.549 & 550 of 2008 ------------------------------------- Judgment Dated:31st March, 2008