P.V. Asha, J. - The petitioner is challenging Ext.P7 order of Government and seeks for a declaration that she is eligible for appointment as full time menial under the fifth respondents school.

2. Petitioner was appointed as Full Time Menial in an aided school of the fifth respondent, which is governed by Kerala Education Act and Rules, 1959. Her appointment for the period from 01-04-1993 to 01-06-1993 on temporary basis, was approved. From 06-07-1993 to 02-06-1997, she worked in a permanent vacancy, with approval. The case of the petitioner is that she was not allowed to continue in the employment, consequent to her marriage in the year 1997. According to her the manager had informed her that married girls will not be allowed to continue in class -IV posts. It is also alleged that the manager had obtained her signature in several blank papers. Subsequently when she came to know that another person was allowed to continue in the school as Full Time Menial even after her marriage, she submitted a representation before the District Educational Officer complaining the denial of employment to her. She thereafter submitted a complaint before the Petitions Committee of the Kerala Legislature and before the Chief Minister. Thereafter the District Educational Officer (DEO) conducted a hearing. The plea of the manager was that she left the employment on her own, after submitting her resignation with effect from 03-06-1997 and in the place of petitioner he had appointed one Smt.Anu George. The District Educational Officer found that there was a resignation letter pasted in the service book of the petitioner; but approval of the Educational Officer was not obtained in the resignation letter, as claimed by the manager. The DEO also found that the resignation letter was found written in another hand writing, different from that of the petitioner and in his report dated 19-02-2004, he stated that the action of the manager in terminating the services of the petitioner was illegal and unjust. At the same time the DEO also found that there was another claimant also for the post who had preferred a complaint. The DEO, thereupon, directed the manager to appoint the senior most claimant as Full Time Menial.

3. Thereafter petitioner submitted another complaint before the Chief Minister on 20-11-2004 as seen from reference No.6 of Ext.P6. On the basis of the complaint of the petitioner before the Chief Minister, the Director of Public Instructions conducted a hearing on 21-11-2006, in which the Educational Officer, the petitioner and Manager were present.

4. The Manager could not substantiate, his contention that the petitioner had left service after tendering the resignation. The resignation pasted in service book was not found approved by the Educational Officer. Seeing that there was no compliance with the provisions contained in Rule 48 of chapter XIVA KER as well as Rule 53 chapter 14(A) KER, which are applicable to non-teaching staff of the schools also, the Director of Public Instruction found that the story of resignation put forward by the Manager could not be accepted; even if there was such a resignation the same could not be acted upon, in the absence of approval. It was found that the petitioner was eligible to rejoin duty as the resignation was not accepted. Therefore, it was directed that the petitioner should be given appointment against the next arising vacancy of Full Time Menial in the School or in any other vacancy in the School, for which she was qualified. It was also directed that till the petitioner is given appointment, no approval shall be granted to any other appointment made in the School any further.

5. Aggrieved by the order of the Director of Public Instructions, the Manager approached the Government. Government found that the petitioner cannot be treated as a 51 (A) claimant since she was not thrown out from the service due to retrenchment or on account of withdrawal of recognition of the school. However it was found that the contention as to resignation cannot be accepted since it was not approved. The Government found that a teacher shall cease to be in service after a continuous absence of 5 years with or without leave and hence the petitioner who was absent for more than six years in the school, and hence petitioner who was absent for more than six years ceased to be in service. It was also stated that the petitioner was not eligible for reappointment in view of her long absence.

6. The manager, even though appeared, has not filed any counter affidavit. The second respondent has filed a counter affidavit supporting Ext.P7 order and relying on Rule 56(4) chapter 14 A of KER.

7. Heard. Sri. Gopalakrishnakurup, learned Senior Counsel, appearing for the petitioner, learned counsel for the Manager and the learned Government Pleader.

8. All the educational authorities have found that the petitioner was denied employment without following the procedure for accepting resignation. The Educational Officer, including Government rejected the contention of the manager that the petitioner had submitted resignation and there was no resignation in effect, in the light of Rule 48 & 53 chapter 14A of KER read with Rule 7 of chapter XXIVB of KER.

9. Action of the Government in reversing the direction for reappointment of the petitioner, relying on Rule 56(4) cannot be sustained. Govt had found that there was no resignation in the eye of law and petitioner was kept out of service even without any orders of suspension or dismissal, Petitioner was denied employment without any reason and without initiating any disciplinary action. The petitioner, who was regularly working in a post with approval, for more than four years in the School should not have been denied the benefit of re-appointment. Cessation of service on account of absence with or without leave for more than 5 years under Rule 56(4) is not a bar for reappointment. It does not disqualify the petitioner for reappointment. There is no provision of law which justifies the action of Manager by which petitioner was kept out of service without following any procedure known to law. Petitioner was not dismissed or removed from service after conducting any inquiry prescribed for imposing major penalty, as provided in Rule 75 of Chapter XIVA of KER, or at any rate by adopting any procedure consistent with the principles of natural justice. As long as petitioner has not incurred any disqualification for reappointment, the order Ext P6 of the DPI should not have been interfered with by the Govt, that too invoking Rule 56(4) of Chapter XIVA of KER.

10. In the above circumstances I set aside Ext.P7 and direct the respondents to see that the petitioner is appointed against the existing or next arising vacancy in the School as full time menial or in any other post for which she is qualified, as directed by the Director of Public Instructions, in Ext P6.

The writ petition is allowed accordingly.