IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 13590 of 2008(P) -------------------------- PETITIONER: ------------------- K.V.SUDHEESH KUMAR, FULL TIME MENIAL, SREE SANKARA ORIENTAL HIGH SCHOOL, LAKKIDI, PALAKKAD DISTRICT. BY ADV. SRI.K.JAJU BABU ADV. SRI.BRIJESH MOHAN ADV. SRI.T.S.SHYAM PRASANTH RESPONDENTS: ------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM. 2. THE MANAGER, SREE SANKARA ORIENTAL HIGH SCHOOL, LAKKIDI, PALAKKAD DISTRICT. 3. THE HEADMISTRESS, SREE SANKARA ORIENTAL HIGH SCHOOL, LAKKIDI, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER ADV. SHRI A.J. VARGHESE. R2 AND R3 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY BY ADV. SMT.N.SANTHA BY ADV. SRI.S.A.ANAND BY ADV. SRI.PETER JOSE CHRISTO THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................................ W.P.(C)No. 13590 OF 2008 ............................................................................ Dated this the 11th August , 2008 J U D G M E N T The petitioner was working as Full Time Menial in Sree Sankara Oriental High school , Lakkidi. The petitioner was appointed as Full Time Menial on 03.01.2005 and he became a regular Full Time Menial after declaration of his probation. On 03.10.2006, it is stated that, the petitioner applied for Leave Without Allowance for five years from 15.12.2006 to 14.12.2011 for taking up employment abroad. As per Ext. P1 order, the leave was sanctioned by the Government for five years from 15.12.2006 to 14.12.2011 . Stating that he could not avail the leave as sanctioned by Ext. P1 order, the petitioner submitted an application for leave for the period from 01.02.2007 to 31.01.2012. Leave, as prayed for, by the petitioner was sanctioned by Ext.P7 order dated 19.11.2007. The petitioner availed the leave from 01.02.2007. It is stated that the petitioner could not go abroad as anticipated due to various reasons. He submitted an application for cancellation of the un-availed portion of the leave. There is controversy as to the reason why the leave was sought to be cancelled. Representations were submitted which contain averments contrary to each other. It is not necessary to resolve that controversy in this Writ Petition, on the basis of the submission made by the learned counsel appearing for the petitioner and the second respondent, Manager. The fact remains that the petitioner had applied for cancellation of the un-availed portion of the leave . After availing of the leave by the petitioner from W.P.(C)No. 13590 OF 2008 2 01.02.2007, the Manager had appointed one Rajesh as Full Time Menial from 22.02.2007 in the leave vacancy of the petitioner, as per R2(a) appointment order. It is stated that approval of the appointment of Rajesh was not granted by the Educational Officer. On appeal by the Manager before the Director of Public Instruction, Ext.R2(b) order was passed remitting the matter to the District Educational Officer for re- consideration of the question of approving the appointment of Rajesh. It was found by the Director of Public Instruction in Ext. R2(b) order that a vacancy was established enabling the Manager to appoint Rajesh. Consequent to Ext.R2(b), no orders are passed by the District Educational Officer approving the appointment of Rajesh. 2. Now the question is whether the petitioner should be permitted to re-join duty after cancelling the un-availed portion of leave. Learned counsel for the Manager submitted that the petitioner can rejoin duty on 20.08.2008. It is agreed by the petitioner that he would rejoin duty on 20.08.2008. On the basis of the submissions made by the learned counsel for the parties, it is not necessary to decide the question involved in the Writ Petition on the merits. In view of the clear and categoric finding of the Director of Public Instruction in Ext.R2 (b) that there was a clear and established vacancy to appoint Rajesh with effect from 22.02.20007 till the petitioner re-joins duty, the Writ Petition is disposed of in the following terms: i) The petitioner shall be permitted by respondent Nos. 2 and 3 to re-join duty on 20.08.2008. ii) The application for cancellation of the un-availed portion of leave, submitted W.P.(C)No. 13590 OF 2008 3 by the petitioner shall be forwarded to the Government. iii) The District Educational Officer shall approve the appointment of Rajesh as Full Time Menial in terms of Ext.R2(b) order passed by the Director of Public Instruction for the period from 22.02.2007 to 19.08.2008 K.T. SANKARAN, JUDGE. lk