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2000 DIGILAW 149 (KER)

Sreeja v. Asst Educational Officer

2000-03-07

C.S.RAJAN

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JUDGMENT C.S. Rajan, J. 1. The petitioner was appointed as a P. D. teacher by the second respondent- as per Ext. P3 order dated 16-11-1998. In Ext. P3 it has been stated that the appointment of the petitioner was in the vacancy of the 4th respondent who had availed himself leave without allowances from 1-11-1998 for three months. Later the 4th respondent cancelled the above leave and reported for rejoining on 14-12-1998. Accordingly the petitioner's appointment was terminated. This original petition has been filed for a direction to the first respondent to approve the appointment of the petitioner in the leave vacancy of the 4th respondent. There is a further prayer to permit the petitioner to continue as P. D. Teacher till the expiry of three months. Though this court originally had granted an interim stay in favour of the petitioner, subsequently it was vacated. 2. Sri. E. V. Nayanar, learned counsel for the petitioner submits that the third respondent should not have granted permission to the 4th respondent to rejoin duty before the expiry of the leave and to relieve the petitioner. For this purpose the petitioner relies on R.48 of Chap.14A of the K.E.R., which reads thus: "No teacher shall be relieved before the expiry of the term of appointmentwithout the previous approval of the Educational Officer." In this case the petitioner's appointment has not been approved by the first respondent. When the petitioner's appointment was not approved, there is no question of getting previous approval for the termination of the appointment of the petitioner. But the learned counsel relies on a decision of this court reported in Swayamprabha v. State of Kerala (1981 KLT SN 93). That was a case where approval of appointment of a teacher was granted for a longer period than for which he was appointed by the Manager. Therefore the question which was decided in that case was whether previous approval was necessary to relieve a teacher after the expiry of the term of appointment. The above ruling cannot be made applicable to the facts of this case. 3. The further question which has to be considered is as to whether the third respondent could have cancelled the unexpired portion of the leave. The learned Government Pleader invited my attention to Note 1 to R.72 of Part I KSR. The above ruling cannot be made applicable to the facts of this case. 3. The further question which has to be considered is as to whether the third respondent could have cancelled the unexpired portion of the leave. The learned Government Pleader invited my attention to Note 1 to R.72 of Part I KSR. The Note states that no formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave.Therefore in this case when the third respondent allowed the 4th respondent to rejoin duty, there is a cancellation of the unexpired portion of the leave. 4. It was further argued before me that such cancellation of leave cannot have any adverse effect on the petitioner who is a third party. I do not think that the theory of third party can be used in a case like this where the petitioner was appointed in a leave vacancy. The petitioner cannot compel the 4th respondent to continue on leave for the full term. It is for the 4th respondent to decide whether he can come back after cancellation of the unexpired portion of the leave, if the law allows the same. 5. Therefore I do not find any merit in the argument of the learned counsel for the petitioner that the third respondent should not have allowed the 4th respondent to rejoin duty before the expiry of the leave. 6. The last argument which the petitioner put forward is that appointment must be approved irrespective of the duration of appointment. But R.7 A(3) of Chap.14A stands in the way of the petitioner in getting her appointment approved. R.7A(3) stipulates that vacancies the duration of which is two months or less shall not be filled up by any appointment. Therefore this court cannot issue any direction to the first respondent to approve the appointment of the petitioner against the mandatory provisions in the above rule. Under these circumstances I do not find any justification to issue any direction in this original petition. 7. But the petitioner was worked in the school from 16-11-1998 to 13-12-1998. Nobody else was paid salary for the above period. The students also were benefitted by the teaching of the petitioner. Therefore there is no justification for denying the benefit of payment of salary to the petitioner during the above period. 7. But the petitioner was worked in the school from 16-11-1998 to 13-12-1998. Nobody else was paid salary for the above period. The students also were benefitted by the teaching of the petitioner. Therefore there is no justification for denying the benefit of payment of salary to the petitioner during the above period. The third respondent is directed to take steps to claim the salary of the petitioner for the above period and the first respondent is directed to sanction the same. The Original Petition is dismissed.