IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 WP(C).No. 8623 of 2007(B) ------------------------- PETITIONER: -------------- SAJITHA P., W/O.ABDUL SALAM T.K., S.A.RAHMANIYA MANZIL, BEACH ROAD, AVIKKARA, P.O.KANHANGAD, KASARAGOD DISTRICT - 671 315. WORKING AS L.D.CLERK, IQBAL HIGHER SECONDARY SCHOOL KOLAVAYAL P.O KANHANGAD. BY ADV. SRI.M.SASINDRAN SRI.T.R.JAGADEESH RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD, KASARAGOD DISTRICT. 3. THE MANAGER, IQBAL HIGHER SECONDARY SCHOOL, KOLAVAYAL P.O. KANHANGAD, KASARAGOD DISTRICT. 4. SHRI.MAJEED C.H. L.D.C. IQBAL H.S.S. KOLAVAYAL P.O. KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER FOR R.3,R4 GOVERNMENT PLEADER SRI.T.T.MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.8623/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF THE APPOINTMENT ORDER IN RESPECT OF PETITINER DULY APPROVED BY THE D.E.O. EXT.P2: A TRUE COPY OF THE 2ND APPOINTMENT ORDER IN RESPECT OF PETITIONER DULY APPROVED BY THE D.E.O. EXT.P3: A TRUE COPY OF THE PROCEEDINGS OF the MANAGER VIDE ORDER NO.11/06 DATED 30.9.06 TERMINATING THE SERVICES OF THE PETITIONER. EXT.P4: A TRUE COPY OF THE REPRESENTATIONDT 3.10.2006 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER. EXT.P5: A TRUE COPY OF THE REPRESENTATION DT 5.10.2006 FILED BY THE PETITIONER BEFORE THE DEO. EXT.P6: A TRUE COPY OF THE JUDGMENT DT 8.12.2006 IN WPC NO.28462/06. EXT.P7: A TRUE COPY OF THE ORDER NO.B1/4836/06 DT 12.2.2007 PASSED BY THE DEO. EXT.P8: A TRUE COPY OF THE G.O(P) NO.187/2005/G.EDN. DT 17.6.2005. EXT.P9: A TRUE COPY OF THE ORDER NO.K DIS-18205/95/B1 DT 26.11.96 ISSUED BY THE 2ND RESPONDENT. EXT.P10: A TRUE COPY OF THE ORDER ISSUED BY DPI VIDE K DIS/EM3/8030/97 DPI DT 13.11.97. EXT.P11: A COPY OF THE RELINQUISHMENT CERTIFICATE IN RESPECT OF 4TH RESPONDENT. EXT.P12: A TRUE COPY OF THE LETTTER FROM 3RD RESPONDENT MANAGER TO THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 8623 OF 2007 B ==================== Dated this the 17th day of September, 2008 J U D G M E N T Ext.P7 order is under challenge. 2. When one Abdul Kareem availed of leave without allowance, petitioner was appointed by Ext.P1 as an LDC for the period from 24/8/01 to 23/3/2005 and that was approved also. Subsequently, Sri.Abdul Karim extended the leave and consequently by Ext.P2, petitioner was again appointed for the period 24/3/2005 to 23/3/2010. 3. Prior to the appointment of the petitioner, another employee of the school, one Sri.Rafeek availed of leave without allowance and that led to the appointment of the 4th respondent from 14/5/2001 to 4/10/2003. The leave was extended by Rafeek and the 4th respondent was also again appointed for the period from 5/10/03 to 4/10/2008. In the meanwhile, cancelling the unavailed portion of the leave, Rafeek rejoined duty on 3/10/06 necessitating the 4th respondent to vacate the post. 4. Thereupon, the 3rd respondent Manager issued Ext.P3 holding that the petitioner and the 4th respondent being 51 A claimants, the 4th respondent being senior to the petitioner has to be accommodated and the WPC 8623/07 :2 : petitioner has to vacate the post. That was objected to by the petitioner by Exts. P4 and P5 representations filed before respondents 3 and 2 and thereafter complaining of delay in considering his representations, he had filed a writ petition before this court as WP(C) No.28462/06 and that writ petition was disposed of by Ext.P6 judgment directing disposal of Ext.P5 representation by the 2nd respondent. Accordingly, Ext.P7 order was passed by the 2nd respondent upholding Ext.P3. 5. Learned counsel for the petitioner contends that even in the counter affidavit, it is admitted that both the petitioner and the 4th respondent are 51A claimants. According to her, once it is accepted that the 4th respondent is also a 51A claimant, his preferential claim can only be in respect of future vacancy and that he cannot have any claim to be accommodated against a pre-existing vacancy to which the petitioner has already been appointed. Though this contention of the learned counsel for the petitioner appears to be attractive at the first blush, on a closer scrutiny, I am not prepared to accept the same. 6. In my view, Rule 51 of Chapter XIV A KER stands in the way of the petitioner. Rule 51 of Chapter XIV A provides that when a vacancy in any category of post terminates necessitating the relief of an employee, WPC 8623/07 :3 : senior hands shall ordinarily be retained in preference to junior hands. In this case, admittedly, the petitioner is a junior hand as compared to the 4th respondent. 7. If that be so, when the 4th respondent's relief is necessitated, it is the petitioner who will have to vacate the post. If that be so, the view taken by the Manager in Ext.P3 and confirmed by the 2nd respondent in Ext.P7, cannot be impugned. 8. Learned counsel for the petitioner submits that prior to his appointment as a Clerk in the leave vacancy referred to above, the 4th respondent was working as a full time menial. It is contended that if at all he is to vacate the post on Rafeek's return to duty, the 4th respondent has to assume duty as full time menial in terms of Rule 43 to Chapter XIV A. However, I notice that this was not a contention raised before the statutory authorities and therefore, I am not prepared to entertain this plea raised for the first time. Writ petition merits only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp