IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 16439 of 2007(F) ------------------------------------ PETITIONER(S): --------------------- M.SOUDA, D/O.POYIL MAHAMOOD, AGED 35 YEARS, RESIDING AT ASHIYANA, MEMUNNDA, VADAKARA - 4. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SMT.S.SUJA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, SECRETARY EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. ASSISTANT EDUCATIONAL OFFICER, THODANNUR, VATAKARA. ** 3. MANAGER, CHIRAVATTOM L.P.SCHOOL, POST SHORNUR. 4. M.HAMEED, MANIKKANCHERRY P.O. VALLIYADU. *5. DIRECTOR OF PUBLIC INSTRUCTIOS, DEPARTMENT OF EDUCATION, THIRUVANANTHAPURAM. *ADDL. R5 IS IMPLEADED AS PER ORDER DATED 22/06/2007 IN I.A NO. 8221/2007. ** MANAGER, CHIRAVATTOM L.P. SCHOOL, MEMUNNDA POST, VADAKARA TALUK, KOZHIKODE DIST. (ADDRESS OF R3 AMENDED AS PER ORDER DATED 19/07/2007 IN I.A NO. 9734/2007) ADV. SRI.PULIKKOOL ABUBACKER FOR R.4 GOVERNMENT PLEADER SRI.. V.TEK CHAND FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16439/2007 F APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE LETTER OF RELINQUISHMENT/RESIGNATION GIVEN R4. EXT.P2. COPY OF THE ORDER OF THE APPOINTMENT APPROVED BY R2 DT. 30/12/91. EXT.P3. COPY OF THE ORDER OF APPOINTMENT APPROVED BY THE R2 DT. 1/6/92. EXT.P4. COPY OF THE ORDER DT. 11/1/05 BY AEO, THODANNUR. EXT.P5. COPY OF THE ORDER OF APPOINTMENT APPROVED BY R2 DT. 1/10/96. EXT.P6. COPY OF THE APPOINTMENT APPROVED BY THE R2 DT. 1/10/01. EXT.P7. COPY OF THE ORDER DT. 12/2/07 BY R2 TO APROVE THE APPOINTMENT OF PETITIONER. EXT.P8. COPY OF THE LETTER DATED 11/4/07 BY THE R2. EXT.P9. COPY OF THE ORDER DT. 19/11/2007 BY THE AEO. EXT.P10. COPY OF THE APPOINTMENT ORDER DT. 20/3/2006. RESPONDENTS' EXHIBITS : EXT.R4A. COPY OF THE LETTER SEND BY R4 TO THE MANAGER, CHIRAVATTOM LP SCHOOL, AEO, THODANNUR, DEO, VADAKARA. EXT.R4B. COPY OF THE REVISION BEFORE THE DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. / TRUE COPY / tga P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No.16439 of 2007(F) ====================== Dated, this the 26th day of March, 2009 J U D G M E N T The main grievance of the petitioner is against the delay and inaction on the part of the second respondent in passing consequential orders pursuant to Exhibit P7 order passed by the District Education Officer. As per Exhibit P7, the second respondent was directed to approve the appointment of the petitioner to the permanent vacancy of Arabic Teacher (LPSA) in the third respondent school, resulted because of the resignation of the teacher by name K.Basheer Ahmed on 20-3-2006. The case of the petitioner is that there is absolutely no rhyme or reason on the part of the second respondent to refuse such approval, just because of the pendency of the revision petition stated as filed by the fourth respondent before the additional 5th respondent, particularly when no interim stay has been granted by such authority. W.P.(C) No. 16439/2007 -:2:- 2. The issue originated pursuant to the long leave granted to the former teacher by name K.Basheer Ahmed, with effect from 27-10-1986. The fourth respondent was appointed in the above leave vacancy who continued there till 30-9-1991, on which day the appointment given to the fourth respondent to come to an end. Strangely enough, the fourth respondent is stated as having submitted a resignation from the said post on 30-9-1991 i.e., the last day of such service, as borne by Exhibit P1, stating that he was not in a position to continue the employment from the “next day” onwards in view of his securing an employment in another school (Valliyadu L.P. School near to his place). The petitioner was given appointment in the third respondent school in the leave vacancy, which was still continuing, with effect from 30-12-1991. She was permitted to continue for different spells and such appointment was approved by the second respondent till 30.9.2006 as borne by Exhibits P2 to P6. W.P.(C) No. 16439/2007 -:3:- 3. In the meanwhile, Mr.Basheer Ahmed resigned from the service on 20-3-2006, thus giving rise to a permanent vacancy, which was sought to be filled up by the petitioner and accordingly, the third respondent Manager gave appointment to the petitioner against such permanent vacancy and it was sought to be approved by the second respondent, who however, refused approval referring to the better claim of the fourth respondent. This led to an appeal preferred by the third respondent/Manager before the District Education Officer who passed Exhibit P7 order holding that the fourth respondent, by virtue of Exhibit P1, had already relinquished his rights in respect of the service and hence could not be treated as a Rule '51A' claimant and accordingly, the second respondent was directed to grant approval to the appointment of the petitioner, if the petitioner was eligible in all other respects. 4. The second respondent, in spite of the specific direction given by the District Education Officer vide W.P.(C) No. 16439/2007 -:4:- Exhibit P7, did not approve the appointment of the petitioner and issued Exhibit P8 proceedings stating that he was not in a position to grant approval because of the Revision Petition stated as filed by the fourth respondent before the DPI. It was in the said circumstances, that the petitioner came to this Court challenging Exhibit P8, contending that the second respondent was bound to grant approval; particularly when no interim order was passed by the Director of Public Instruction in the Revision Petition. 5. In the course of the proceedings, an interim order was passed by this Court on 17-10-2007, observing that pendency of the Writ Petition or the Revision Petition filed by the fourth respondent shall not stand in the way of the second respondent considering the question of approval of the appointment of the petitioner, in accordance with law. This interim order was subjected to challenge by the fourth respondent by filing Writ Appeal No.2760 of 2007, where interference was declined, however, making it clear that W.P.(C) No. 16439/2007 -:5:- such approval will of course be subject to the result of the writ petition. It is seen that the second respondent, taking note of the orders passed by this Court, has granted approval to the appointment of the petitioner and she is continuing as above, drawing her salary. 6. The additional fifth respondent who has been impleaded in the course of the above proceedings has filed a counter affidavit, just mentioning the sequence of events and without touching the merits or demerits as to the rival claims between the petitioner and the fourth respondent. It is however, admitted that the fourth respondent has filed a Revision Petition before him challenging Exhibit P7 order passed by the District Educational Officer. Since, it is not stated as disposed of and in view of the submission made by the learned counsel for the fourth respondent that it is still pending, this Court has to hold it accordingly. 7. The learned counsel for the petitioner mainly challenges the impugned proceedings and the alleged claim of the fourth respondent mainly on three grounds:- W.P.(C) No. 16439/2007 -:6:- (1) that the fourth respondent was simply sleeping over the issue, since no claim was putforth by him after his leaving the service of the third respondent on 30-9-2001, till the year 2007; (2) that the fourth respondent cannot be considered as a Rule '51A' claimant; (3) that it is discernible from Exhibit P4 proceedings issued by the second respondent that the fourth respondent had expressed his unwillingness to join the service of the third respondent with effect from 30-10-1994 and hence it has to be held that the fourth respondent had abandoned the rights/claims, if any. In support of the above contentions, the learned counsel for the petitioner placed reliance on the decision rendered by the Division Bench of this Court in Lilly v. Manager, M.V.U.P.School [2002(3) KLT SN 60 Case No.81]. But the circumstances prevailed therein are having some distinction, besides the fact that the instance of 'resignation' W.P.(C) No. 16439/2007 -:7:- was also conspicuously absent. On the other hand, the learned counsel for the fourth respondent submits that the fourth respondent has seriously disputed the alleged execution of Exhibit P1 relinquishment later and that, even otherwise, Exhibit P1 cannot be considered as a valid relinquishment; particularly since it was about 15 years prior to arising of the permanent vacancy in the year 2006. The learned counsel, referring to decision rendered by the Division Bench of this Court in Mariam Koshy v. Jolly Varghese and others reported in 2007(3) KLJ 606 submits that relinquishment can only be of an existing right and as such, the fourth respondent has necessarily to be treated as a Rule '51A' claimant. 8. It is submitted by the learned counsel for the fourth respondent that he had submitted an application with respect to the permanent vacancy, immediately on coming to know about the occurrence of the vacancy with effect from 20-3-2006. The learned counsel further submits that there is absolutely no need for a Rule '51A' claimant to W.P.(C) No. 16439/2007 -:8:- submit any application; particularly since a duty is cast upon the third respondent Manager of the school to inform the Rule '51A' claimant as to the availability of the vacancy by sending a notice by registered post. A “second notice” is also contemplated, as given in the Note 2 to Rule 51A, so as to enable the concerned claimant to avail the opportunity and only on failure, will the Manager be justified in proceeding with the recruitment to be offered to anybody else. The learned counsel placed reliance on the decision rendered by the Division Bench of this Court as reported in 1992(2) KLT 341 [Lakshmikutty Amma v. Vijayalakshmikutty]. It is supported by the learned Government Pleader, referring to the subsequent decision rendered by another Division Bench as reported in 2001(2) KLT 278 [Sasikala v. Vrindha]. 9. This Court does not propose to examine the merits, particularly since the fourth respondent has not challenged Exhibit P7 order passed by the District Education Officer before this Court and he has rightly W.P.(C) No. 16439/2007 -:9:- pursued the statutory remedy available to him before the additional fifth respondent, where the Revision Petition stated as pending. No positive relief can be given in favour of the fourth respondent in a Writ Petition filed by the petitioner for enforcing her alleged rights. 10. In the above facts and circumstances, the Writ Petition is disposed of, making it clear that the contesting parties are at liberty to substantiate their relative merits and demerits before the additional fifth respondent, where the Revision Petition filed by the fourth respondent is stated as pending. The approval of the service of the petitioner already granted by the second respondent pursuant to Exhibit P7 order and the interim order passed by this Court on 17-10-2007 will be subject to such final orders to be passed by the additional fifth respondent in the Revision Petition. No costs. P.R.RAMACHANDRA MENON, JUDGE. skr