IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1203 of 2008()
1. R.SARASWATHY, UPPER PRIMARY SCHOOL
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE MANAGER, KALYAN KRISHNAN MEMORIAL
5. T.P.MINI, UPPER PRIMARY SCHOOL
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :25/06/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
--------------------------------------
W.A. No. 1203 OF 2008
--------------------------------------
Dated this the 25th day of June, 2008
J U D G M E N T
RAVIDRAN, J.
The petitioner in O.P.No.30721 of 1999 is the appellant. By
judgment delivered on 17.01.2008, the learned Single Judge
dismissed the Original Petition. The brief facts of the case are as
follows:-
2. The appellant was appointed as U.P.S.A. in a leave
vacancy for the period from 08.07.1991 to 17.09.1991 by the 4th
respondent. The appointment was not approved in time due to
various reasons. While the appellant was working as U.P.S.A. in
the aforesaid leave vacancy another vacancy of U.P.S.A. arose on
03.09.1991. In that vacancy the 5th respondent was appointed.
Yet another vacancy of U.P.S.A. arose on 03.06.1992 and one
Sri.Shaji was appointed in that vacancy. Later by Ext.P4
appointment order dated 01.07.1992 the appellant was
appointed as U.P.S.A. The said appointment was approved by the
District Educational Officer, Palakkad by order passed on
W.A.1203/2008
2
18.03.1995 only for the period from 20.01.1993 to 30.03.1993.
The appellant was relieved from service on the closing day of the
academic year 1992-93, in terms of Rule 49 of Chapter XIV A of
the Kerala Educational Rules (hereinafter referred to as the
“KER”, for short). The appellant was not paid vacation salary
during April and May, 1993 as she did not have eight months
continuous service at the end of the academic year 1992-93. The
appellant was reappointed as U.P.S.A. on 07.06.1993, by Ext.P5
appointment order and the said appointment was approved with
effect from 07.06.1993.
3. More than three years thereafter, the appellant
submitted Ext.P8 representation before the Director of Public
Instruction seeking approval of her service from 08.07.1991 to
19.01.1993 and payment of salary for the said period contending
that though she was appointed initially in a leave vacancy for the
period from 08.07.1991 to 17.09.1991 she continued to work in
the school as U.P.S.A. and due to the wrongful act of the
Manager in not shifting her to the vacancy of U.P.S.A. which
arose on 03.09.1991 against which the 5th respondent was
W.A.1203/2008
3
appointed, she has been denied approval and salary for the said
period. By Ext.P11 order passed on 07.12.1998, the Director of
Public Instruction directed the District Educational Officer,
Palakkad to approve the appointment of the appellant as U.P.S.A.
from 08.07.1991 if she is otherwise eligible. Thereafter, the
appointment of the appellant as U.P.S.A. for the period from
08.07.1991 to 17.09.1991 was approved as can be seen from the
endorsements on Ext.P14. The appellant thereafter filed
O.P.No.30721 of 1999 seeking the following reliefs :
” a. direct the 1st, 2nd and 3rd respondents to
implement Ext.P11 order.
b. To direct the 4th respondent to submit the
appointment order in respect of petitioner from
08.07.1991 as directed in Ext.P11 with
connected papers to the 3rd respondent.
c. To direct the respondents 1 to 3 to take action
against the Manager under Chapter III Rule 7.
d. To direct the 3rd respondent to approve the
petitioner as UPSA from 08.07.1991 as directed
in Ext.P11.
e. To direct the respondents 1 to 3 to recover the
amount equal to the salary due to the petitioner
W.A.1203/2008
4
on the basis of approval ordered in Ext.P11 from
the 4th respondent Manager by Revenue
Recovery Proceedings and disburse the same to
the petitioner and to assign seniority to
petitioner on the basis of approval from
08.07.1991.
f. direct the respondents 1 to 3 to disqualify the 4th
respondent Manager from the post of Manager
for having failed to obey the order Ext.P11.”
4. The learned Single Judge who heard the writ petition
held that there was latches on the part of the appellant in not
challenging the order passed by the District Educational Officer
approving her appointment as U.P.S.A. made as per Ext.P4 with
effect from 01.07.1992, by restricting the approval only for the
period from 20.01.1993 to 30.03.1993. The learned Single Judge
also noticed that even in Ext.P8 representation which was filed
belatedly, the appellant had not sought any reliefs in that regard.
The learned Single Judge also noticed that it was only in Ext.P15
representation dated 17.08.2000 that the appellant requested the
Director of Public Instruction, to grant her seniority above the 5th
respondent and to approve her appointment with from
W.A.1203/2008
5
18.09.1991. It was nearly two years after Ext.P11 that she
moved the Director of Public Instruction seeking that relief. The
reliefs prayed for in the writ petition were declined after recording
the fact that her appointment as U.P.S.A. from 08.07.1991 to
17.09.1991 has been approved as directed in Ext.P11.
5. We have heard Sri.Sajan Vargheese, the learned
Counsel appearing for the appellant. The learned counsel
submitted that in the light of Ext.P11, the appellant is entitled to
have her appointment as U.P.S.A. approved from 08.07.1991
without break and that she is entitled to arrears of salary for the
period from 08.07.1991 to 19.01.1993 treating her as in
continuous service from 08.07.1991 pursuant to her initial
appointment as U.P.S.A. No material has been produced to
substantiate the said claim. The appellant was initially appointed
as U.P.S.A. in a leave vacancy for the period from 08.07.1991 to
17.09.1991. Thereafter she was appointed as U.P.S.A. only on
01.07.1992 by Ext.P4 order and the said appointment was
approved only for the period from 20.01.1993 to 30.03.1993.
She was again appointed as U.P.S.A. on 07.06.1993 by Ext.P5,
W.A.1203/2008
6
appointment order. That being the situation, the appellant is not
entitled to contend that she was in continuous service during the
period from 18.09.1991 to 06.06.1993. The appellant did not
choose to challenge the limited approval granted to her
appointment under Ext.P4 for a long period. The appellant was
relieved from service on 31.03.1993 at the end of the academic
year 1992-93 and was reappointed as U.P.S.A. only on
07.06.1993 and that appointment was approved. It was only on
09.09.1998 when she submitted Ext.P8 representation before
Director of Public Instruction that the appellant sought approval
of her service from 08.07.1991 to 17.09.1991. Even in that
representation she did not choose to challenge the restricted
approval granted to her appointment under Ext.P4. The learned
Single Judge held that the appellant is guilty of latches in not
challenging the limited approval granted to her appointment in
Ext.P4. The appellant suffered the consequences of the limited
approval granted to her under Ext.P4. The appellant has also not
chosen to challenge the appointment given to the 5th respondent
on 03.09.1991 in time. At this distance of time, the appellant
W.A.1203/2008
7
cannot therefore contend that she is entitled to seniority over the
5th respondent. We are of the opinion that no grounds have been
made out for our interference with the judgment of the learned
Single Judge.
The Writ Appeal accordingly fails and it is dismissed in
limine.
J.B.KOSHY, JUDGE
P.N.RAVINDRAN, JUDGE
pac