IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29164 of 2008(V)
1. FR.K.J.MATHEW
... Petitioner
Vs
1. STATE OF KERALA & OTHERS
... Respondent
For Petitioner :SRI.V.M.KURIAN
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/10/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 29164 OF 2008 (V)
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Dated this the 3rd day of October 2008
J U D G M E N T
Petitioner was an H.S.A.(Social Studies). According to the
petitioner, initially he was appointed in St. Joseph’s Boys Higher
Secondary School, Kozhikode in a leave vacancy and thereafter he was
appointed on a regular basis. It is stated that in 1991 he was transferred
to St. Michael’s AIHS, Kannur on inter-management transfer. While
continuing there, he availed of leave without allowance due to sickness
and finally resigned from service on 1.1.1997. According to the
petitioner, he recovered from the illness and thereafter was re-appointed
as H.S.A., in Dy. Joseph’s Boys Higher Secondary School, Kozhikode in a
regular vacancy, on 24.8.1998. However, that was not approved by the
4th respondent on the ground that he had crossed the age limit.
2. Against this order of the 4th respondent, appeals and revisions
were filed before respondents 1 to 3 and all these were rejected. The
records show that the revisional order of the Government was issued on
14.1.2004. Despite this, claiming that age bar is not applicable in cases
of re-appointment ,relying on Ext. P5 circular issued by the 2nd respondent,
W.P.(C) No. 29164 OF 2008
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petitioner again approached the Government. That was rejected by Ext.
P4. It is challenging Ext. P4, this writ petition is filed.
3. A reading of Ext. P4 shows that the Government have given
good reasons in support of its order of rejection. The following portion
of Ext. P4 needs to be reproduced and I do so:
“Rule 54(1) of Chapter XIV A KER says that pre-
resignation serviceThis not be taken into account for any
will
service benefits. rule does not give any right to any
educational authority to approve the appointment of a teacher
who exceeds age limit. So the approval of re-appointment of
Fr. K.J. Mathew cannot be considered as hethat
upper age limit.
effective cannot beBesides
undoneaorresignation Formal orders at
hashas
crossed the
become
ignored.
appropriate levelresignation obtainedhas
should be before a request for
withdrawal
effective/accepted. Even thewhich
of
resignation would amount to re-employing thewithdrawal in
request foralready become
of
incumbent
service after condoning the period of break. Hence without
withdrawing the resignation already accepted, the question of
regularization of the period of break does not arise. In the
instant case the teacher resigned from the post of H.S.A. in
one school, but got fresh appointment in another school under
a different educational agency. So also withdrawal of
resignation and re-appointment in the same school is not
possible and reckoning of pre resignation for service benefits
is also not possible. There are 3 specific relaxations involved
here. The first is that a person who had resigned from service
13 years ago be considered to have proceeded on LWA only, in
order that his previous service is counted for purposes of
pension. The second is that the period of absence from
service after resignation, amounting to around 3 year, may be
treated as LWA. The 3rd is that for a fresh appointment in
another school, the upper age limit may be relaxed.
It is true that a combination of these 3 relaxations in one
case will be the rarest of rare cases. But if agreed to, we will
W.P.(C) No. 29164 OF 2008
– 3 –
be setting a precedent for each of the cases. Thus for eg.g.
large number of persons who have resigned in the past could
come forward and claim that their resignation may be
cancelled and the period of absence from duty may be treated
as L.W.A. If upper age limit is relaxed in one case, there could
be large number of other cases where similar requests will
come up.”
Counsel for the petitioner submits that Chapter XIV A, Rule 51 does not
disentitle for approval of his service as the rule does not state that for
reappointment age bar will apply. It is also stated that in similar
circumstances, by Exts. P6, P7 and P8 orders relief has been granted by
the Government itself.
4. I have considered the submissions. First of all, from the facts
noted above, it can be seen that the revision was filed by the petitioner
against the order declining approval for the re-appointment of the
petitioner, was passed by the Government by order dated 14.1.2004 and
has become final. That order has not been challenged. It is thereafter
that the issue is sought to be reopened by filing a representation which
led to Ext. P4 order. In my view, once the dispute has attained finality by
the order dated 14.1.2004 it was not permissible for the petitioner to
have sought to reopen the issue and on that ground itself, his claim
ought to have been rejected.
5. Even otherwise, Rule 54(1) of Chapter XIV A, KER, provides
that on reappointment an employee will start as a fresh hand. This
W.P.(C) No. 29164 OF 2008
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necessarily means that everything following his first appointment stands
forfeited. If that be so, on that ground also the petitioner is not entitled
to the reliefs sought for.
6. In addition to all this, a reading of Ext. P4 shows that the
Government have given good reasons for rejecting the petitioner’s claim.
Ext. P4 also shows that the Government is not disowning Exts. P6, P7 and
P8. Even if it is so, in my view so long as the petitioner cannot claim any
entitlement based on any rule as such, petitioner cannot derive any
advantage out of Exts. P6, P7 and P8.
7. For all these reasons, I am satisfied that Ext. P4 does not call
for any interference.
Writ petition fails and is dismissed.
ANTONY DOMINIC
JUDGE
jan/-