IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 WP(C).No. 16026 of 2006(G) -------------------------- PETITIONER: --------------- SMT.MARY VARGHESE, W/O.THOMAS VATHALLOOR, PANANCKACHAL, KOODARANHI, KOZHIKODE. FORMERLY L.D.CLERK, ST.THOMAS HIGH SCHOOL, KOORACHUNDU. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: --------------- 1. THE STATE OF KREALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCTATIONAL OFFICER, VADAKARA. 5. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY DIOCESE OF THAMARASSERY, CORPORATE OFFICE, ALPHONSA BHAVAN, P.O.THAMARASSERY, KOZHIKODE. 6. V.M.MANI, PEON, KOORACHUNDU HIGH SCHOOL, KOORACHUNDU, KOZHIKODE. ADV. SRI.SIBY MATHEW FOR R5 GOVERNMENT PLEADER SRI NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16026 of 2006(G) APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER WITH ENDORSEMENT OF APPROVAL DATED 27.01.1992. EXT.P2: TRUE COPY OF THE GOVERNMENT ORDER G.O(Rt) NO.1202/2003/G.Edn. DATED 28.03.03. EXT.P3: TRUE COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 1.10.04. EXT.P4: TRUE COPY OF THE GOVERNMENT ORDER NO.53616/N2/2004/G.Edn DATED 1.8.05. EXT.P5: TRUE COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 4TH RESPONDENT DT.8.9.05. EXT.P6: TRUE COPY OF THE LETTER DATED 25.01.92 SENT BY THE THEN MANAGER OF THE SCHOOL TO THE PETITIONER. EXT.P7: TRUE COPY OF THE AFFIDAVIT OF THE THEN MANAGER DT.20.02.05. EXT.P8: TRUE COPY OF THE LETTER DT.14.12.04 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF THE JUDGMENT IN W.P(C) NO.27721/05 OF THIS HON'BLE COURT DT.17.11.05. EXT.P9(A): TRUE COPY OF THE REPRESENTATION DT.27.09.05 OF THE 5TH RESPONDENT TO THE 1ST RESPONDENT. EXT.P10: TRUE COPY OF THE GOVERNMENT ORDER G.O.(Rt) NO.2154/06/G.Edn. DT.27.05.06. RESPONDENTS' EXHIBITS EXT.R5(a): TRUE COPY OF THE TEMPORARY RELINQUISHMENT BY SRI.V.M.MANI. EXT.R5(b): TRUE COPY OF JUDGMENT DT.23.06.2004 DISMISSING THE COMPLAINT FILED BY THE PETITIONER BEFORE THE LOKAYUKTHA. EXT.R5(c): TRUE COPY OF THE LETTER DT.27.09.2005 SENT BY THIS RESPONDENT TO THE 1ST RESPONDENT. EXT.R5(d): TRUE COPY OF THE LETTER DT.20.01.2005 SENT BY SRI.V.M.MANI TO THIS RESPONDENT. EXT.R5(e): TRUE COPY OF THE LIST OF CLAIMANTS TO THE POST OF L.D.CLERK AS ON 1.11.2004. WP(C).No. 16026 of 2006(G) - 2 - EXT.R5(F): TRUE COPY OF APPLICATION DT.09.05.2000 SUBMITTED BY THE PETITIONER FOR THE POST OF F.T.MENIAL. TRUE COPY P.A TO JUDGE S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.16026 of 2006 ---------------------------------------------- Dated this the 23rd day of December, 2011 JUDGMENT The petitioner was a claimant for preferential appointment as Lower Division Clerk in St. Thomas School, Koorachundu, an aided school under Rule 51A of Chapter XIVA of the Kerala Education Rules. That school was taken over by the 5th respondent educational agency, who had other schools as well. Subsequently, a vacancy of Lower Division Clerk arose in St. Thomas School, Koorachundu. The 6th respondent was appointed to that vacancy. The petitioner was appointed as a full time menial. The petitioner's contention in this writ petition is that the petitioner is entitled to be appointed as Lower Division Clerk in recognition of the petitioner's claim under Rule 51A in preference to the 6th respondent. The petitioner seeks the following reliefs; “a) issue a writ of certiorari, or any other appropriate writ order or direction, calling for the records leading to Ext P10 and to quash the original of the same. b) issue a writ of mandamus to the 5th Respondent to appoint the petitioner to the post of L D Clerk expeditiously, w.e.f. 1.11.04, with all consequential benefits. W.P.(C)No.16026/06 2 c) Declare that the Petitioner is entitled to get appointment as L D Clerk in the vacancy arose on 1.11.04, in preference to 6th respondent who has relinquished promotion in other schools under 5th respondent insisting for promotion in St. Thomas High School, Koorachundu.” 2. A counter affidavit has been filed by the 5th respondent, wherein the stand taken is that in the very same School, there was a Rule 43 claimant, who had a preferential claim for promotion under Rule 43, over the Rule 51A claimant as per the rules in force at the relevant time, who is the 6th respondent, who has been accommodated in the vacancy, which arose in the post of Lower Division Clerk and the petitioner was appointed as Full Time Menial in the post vacated by the 6th respondent. 3. The petitioner's answer to the same is that the 6th respondent had relinquished his claim for promotion permanently, as is evident from Ext.P6 and therefore, he cannot be considered in preference to the petitioner. The 5th respondent has produced Ext.R5(a), which is the relinquishment letter in which the 6th respondent had relinquished only the claim for promotion to the leave vacancy of Sri. P.J. Joseph which arose in 1992 and he had specifically stated therein that he retains the claim for the post of Lower W.P.(C)No.16026/06 3 Division Clerk in the next vacancy in St. Thomas School, Koorachundu, which may arise in future. 4. I have considered the rival contentions in detail. It is not disputed before me that Rule 43 claimant was entitled to preference over Rule 51A claimant at the relevant time. The contention of the petitioner is based on Ext.P6. In the counter affidavit of the 5th respondent, the 5th respondent has specifically stated that Ext.P6 has not been issued by the 6th respondent. Even assuming that it was issued by the 5th respondent, that only says that the 5th respondent had relinquished his claim for promotion and does not say, permanently. When the relinquishment letter Ext.R5(a) is before me, which specifically confines relinquishment of promotion to the leave vacancy of Sri. P.J. Joseph, Ext.P6 cannot override Ext.R5(a), to hold that the relinquishment is permanent. In view of the same, I do not think that the petitioner is entitled to succeed in this writ petition. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.16026/06 4 W.P.(C)No.16026/06 5