SHOUKATHALI Vs. SALEENA PUTHUVEETTILKANDY HOUSE

JUDGEMENT

(1.) These two appeals arise out of judgment dated 22/1/2018 in WP(C) No. 26291/2010. WA No. 921/2018 has been filed by the 4th respondent, who is the Manager of MISM UP School. WA No. 675/2018 has been filed by Sri.Shoukathali, who is affected by the impugned direction, with leave of Court.

(2.) By the impugned judgment, the learned Single Judge had allowed the writ petition observing that the petitioner is entitled to be given notional appointment in the vacancy which arose on 5/11/2007 as a Rule 51A claimant and the protected hand working in the school can be accommodated in the next arising vacancy. The educational authorities were directed to issue appropriate orders within three months. Sri.Shoukathali has been appointed as a Full Time Arabic teacher on 1/6/1988 and became a protected teacher on 31/8/2006. He was deployed to the present school on 5/2/2008 and thereafter he was working in MISM UP School without any interruption. His contention is that when there is a clear finding by the Government in Ext.P14 order that he entered service on 5/2/2008 and is continuing in the school, and when the writ petitioner had abandoned the employment and had gone on leave without permission, she ceases to be a Rule 51A claimant. According to him, he being a necessary party to the lis, the writ petition filed without impleading him ought to have been rejected on that ground.

(3.) The short facts in the case would disclose that the petitioner was appointed in the school managed by the 4 th respondent in a leave vacancy from 28/7/2003 to 4/11/2007 as Full Time Arabic Teacher which was approved by the Assistant Educational Officer as per Ext.P5 order dated 25/2/2011. By virtue of the said order, she was entitled to be treated as a claimant under Rule 51A of Chapter XIVA KER. The said order came to be passed pursuant to a direction issued by this Court in WP(C) No. 29151/2009. Petitioner's contention is that while she was a Rule 51A claimant, the Manager appointed a protected teacher one Sri.Shoukathali in a vacancy that had arisen on 5/11/2007. Though she staked a claim for an appointment effective from 5/11/2007, the same came to be rejected as per Ext.P14 Government Order dated 26/9/2013. It is challenging Ext.P14, the the writ petition came to be filed. The respondents while supporting the impugned order Ext.P14 inter alia contended that petitioner cannot be treated as a Rule 51 A claimant. Though she was working as a Full Time Arabic Teacher in the aforesaid school, she went on maternity leave on 13/9/2007 without permission from the Educational Officer. The term of appointment of the petitioner was only up to 4/11/2007 and since she was on maternity leave, there was no prospect for her to return to duty after the expiry of leave and therefore the leave was not sanctioned in terms of Note 4 to Rule 100 of Part I KSR. Therefore, her absence will be treated as termination from service in which event she is not entitled for any right as a Rule 51A claimant. It is further submitted that on the expiry of the term of appointment of the petitioner, the Manager of the school requested the educational authority to send a protected teacher on the basis of his application dated 24/10/2007. The 2 nd respondent issued the name and details of the protected teacher as per communication dated 12/12/2007 and accordingly Sri.Shoukathali (appellant in WA No. 675/2018) was appointed. It is the further contention of the appellant that Ext.P7 is a forged document. A counter affidavit had been filed by the Assistant Educational Officer in WA No.921/2018 inter alia stating that genuineness of Ext.P7 was verified and it was found that it is a concocted document. It is submitted that the leave application of the petitioner was returned with a similar endorsement by the then Superintendent of AEO Office Sri.M.C.Mohanan. The endorsement was dated 25/5/2011. The rejection of application has been recorded in the service book of the petitioner on 25/5/2011 by Sri.M.C.Mohanan. The endorsement dated 25/5/2011 in the service book and the endorsement in the reverse side of the leave application are in identical handwriting. But Ext.P7 is in another handwriting and the signature also varies. Ext.R4(a) is the leave application of the petitioner retained in the office of the Assistant Educational Officer and Ext.R4(b) the entry at page 15 of the service book. Two other leave applications submitted by the petitioner were also produced as Exts.R4(c) and R4(d) which were sanctioned by Sri.M.C.Mohanan. It is asserted that though the signature seen in Ext.P7 is similar to that of the full signature of Sri.M.C.Mohanan, it is not his. On this basis, learned counsel for the appellant Adv.Thulasi K.Raj would argue that the petitioner is not entitled for any relief from this Court in view of the fraud committed and she placed reliance on the judgments of the Apex Court in Sharma K.D. v. Steel Authority of India Ltd and Others [(2008) 12 SCC 481], Sarvepalli Radhakrishnan University and Others v. Union of India and Others (). The learned counsel for the appellant in WA No. 675/2018 Dr.George Abraham would submit that the learned Single Judge while issuing the impugned order did not take note of the fact that the appellant/Shoukathali was an affected party, if the directions issued by the learned Single Judge is implemented.