IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 WP(C).No. 37185 of 2008(B) -------------------------------- PETITIONERS: ---------------- 1. T.N.LALITHA, D/O.K.NARAYANANKUTTY NAIR, AGED 56 YEARS, MANAGER, A.D.V.U.P. SCHOOL, PERINGANDOOR (RESIDING AT 'SWAPNA', AMBALAPURAM, PERINGANDUR, THRISSUR - 680 581). 2. M.P.MANJULA, UPPER PRIMARY SCHOOL ASSISTANT A.D.V.U.P. SCHOOL, PERINGANDOOR - 680 581. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT. 3. THE ASSISTANT EDUCATIONAL OFFICER, WADAKKANCHERRY, THRISSUR DISTRICT. BY SMT. RANI DIOTHIMA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, ALONG WITH WP(C) No. 21648 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.37185/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.C.3176/06 OF Assistant Educational Officer DTD. 26.6.06. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 1.6.05. EXT. P2(a) : COPY OF G.O.(Ms) No.275/99/G.EDN OF GOVT. DTD. 9.11.99. EXT. P3 : COPY OF ORDER No.C/3668/06/L.DIS OF Assistant Educational Officer DTD. 18.11.06. EXT. P4 : COPY OF APPEAL FILED BEFORE District Educational Officer DTD. 11.12.06. EXT. P5 : COPY OF ORDER No.B1/10272/06/K.DIS OF District Educational Officer DTD. 5.5.07. EXT. P6 : COPY OF REVISION PETITION FILED BEFORE GOVT. DTD. 14.7.07. EXT. P7 : COPY OF JUDGMENT OF THIS COURT IN WP(C) 31822/07-L DTD. 14.11.07. EXT. P8 : COPY OF G.O.(Rt) No.3997/08/G.EDN. OF GOVT. DTD. 2.9.08. EXT. P9 : COPY OF LETTER OF SMT. SWAPNA VARGHESE.K. DTD. 7.6.04. EXT. P10 : COPY OF ORDER No.C-4023/07/L.DIS OF Assistant Educational Officer DTD. 15.10.07. EXT. P11 : COPY OF REVISION PETITION FILED BEFORE THE GOVT. DTD. 27.10.07. EXT. P12 : COPY OF ORDER No.18833/B2/08/GE OF GOVT. DTD. 3.7.08. EXT. P13 : COPY OF RESIGNATION LETTER OF 2ND PETITIONER DTD. 31.7.08. WP(C).No.37185/2008 EXT. P14 : COPY OF ORDER No.C.5024/08 OF Assistant Educational Officer DTD. 22.8.08. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) Nos.37185 OF 2008 & 21648 OF 2010 --------------------------------------- Dated this the 20th day of August, 2011. J U D G M E N T Both these writ petitions concern rejection of approval of appointment of 2nd petitioner in W.P.(C) No.37185/2008 and the petitioner in W.P.(C) No.21648/2010. The 1st petitioner in W.P.(C) No.37185/2008 is the Manager of the school and the 2nd petitioner was appointed in the school as Upper Primary School Assistant initially from 01.06.2005 against the leave vacancy of one Smt.K.Usha Devi. The said appointment was approved as per Ext.P2 order therein. The 1st petitioner was also a teacher in the school who retired from the post of U.P.S.A on 31.05.2006. To the said regular vacancy, the 2nd petitioner was shifted which is permissible under Ext.P2(a) Government Order dated 09.11.1999. The approval was declined by Ext.P3 stating that there are other senior claimants. 2. Ext.P5 is the order passed in appeal. The matter was taken up in revision by the Manager as per Ext.P6 and finally the W.P.(C) Nos.37185/08 & 21648/10 2 claim was rejected by the Government as per Ext.P8. The 2nd petitioner was continuing in the school but she opted to resign from service with effect from 31.07.2008 and thereafter the petitioner in W.P.(C) No.21648/2010 was appointed on 05.08.2008. With regard to the approval of the petitioner therein also, the very same objection has been taken and the respective orders are under challenge in the said writ petition also. 3. The sole reason for non approval namely, the claim of senior claimant viz of one Smt.Swapna Varghese who had approved service in a leave vacancy for an earlier spell in the same school. It is pointed out in Ext.P5 produced in W.P.(C) No.37185/2008 that in the light of her claim, the vacancy cannot be considered as established. The Manager in Ext.P6 revision petition had pointed out that Smt.Swapna Varghese had resigned on 07.06.2004. The resignation letter has been produced as Ext.P9 wherein it is stated that she got selection for appointment in Government Service by the Public Service Commission. 4. The view taken by the Government in Ext.P8 produced in W.P.(C) No.37185/2008 is that the resignation letter which was W.P.(C) Nos.37185/08 & 21648/10 3 submitted was returned to the Manager for the reason that the period of appointment of the teacher ended on 07.06.2004 and the date of resignation is 07.06.2004 which is not acceptable. Surprisingly, neither the Educational Officers nor the Government had verified the fact whether Smt.Swapna Varghese was interested since she had already got appointment in a Government School. Of course, if she failed to get any appointment in any other school or even Government school, her claim would have been surviving, if the resignation and forfeiture of claim was not accepted. 5. As far as the claim under Rule 51A of Chapter XIV-A Kerala Education Rules, it will survive provided the claimant has not obtained an appointment in a permanent vacancy under any other educational agency. If at all the Educational Officers and the Government wanted to ascertain her claim or her willingness for appointment, notice ought to have been issued to her as it is not in dispute that she was appointed in a Government school. The said course was not adopted. 6. It is evident from Ext.P10 communication issued by the W.P.(C) Nos.37185/08 & 21648/10 4 Assistant Educational Officer to the Manager that the resignation letter was forwarded to the Manager. The view taken therein is that the period of approval was from 16.07.2002 to 07.06.2004 and therefore, the question of resignation as on 07.06.2004 does not arise. The Assistant Educational Officer has clearly failed to assess the reason for resignation being that she obtained a job in Government service. The petitioner in W.P.(C) No.21648/2010 has produced various other documents to show that she is actually working in Government school. 7. Ext.P14 produced along with I.A.No.9653/2011 in W.P.(C) No.21648/2010 shows that Smt.Swapna Varghese had joined Government service on 19.07.2004 and she is continuing there. Even though Smt.Swapana Varghese has been arrayed as additional 6th respondent in W.P.(C) No.21648/2010 and even though notice was served on her, she had not chosen to appear and contest the claim raised by the petitioner therein. Evidently, she has no quarrel with the claim raised by the petitioner. 8. The fact that Smt.Swapna Varghese has obtained a job in Government service has not been disputed by any of the W.P.(C) Nos.37185/08 & 21648/10 5 official respondents in the counter affidavit. Therefore, the objection taken for not approving the appointment of 2nd petitioner in W.P.(C) No.37185/2008 and the petitioner in W.P. (C) No.21648/2010 cannot be supported. Hence, these writ petitions are allowed. Exts.P3, P5, P8, P10, P12 and P14 in W.P.(C) No.37185/2008 are hereby quashed. The impugned orders namely, Exts.P7 and P10 in W.P.(C) No.21648/2010 are also quashed. There will be a direction to the Assistant Educational Officer, Wadakkancherry, 3rd respondent in W.P.(C) No.37185/2008 to pass appropriate orders with regard to the approval of appointment of 2nd petitioner in W.P.(C) No.37185/2008 and the petitioner in W.P.(C) No.21648/2010 in the light of the findings rendered above within a period of two months from the date of receipt of a copy of this judgment. Consequential benefits also will be disbursed accordingly. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp