IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 3313 of 2007(T) ------------------------- PETITIONER: ------------ P. JAMEELA, PANDARAPPETTY HOUSE, VARIAD, MUTTIL P.O., WAYANAD DISTRICT, TYPIST/CLERK , WAYANAD ORPHANAGE SCHOOL, MUTTIL. (TERMINATED) BY ADV. SRI.BINDU SREEKUMAR RESPONDENTS: ------------- 1. THE DISTRICT EDUCATIONAL OFFICER, KALPETTA NORTH P.O., WAYANAD DISTRICT. 2. THE PRINCIPAL, WAYANAD ORPHANAGE SCHOOL, MANAD P.O., MUTTIL, WAYANAD, KALPETTA. 3. THE CORPORATE MANAGER, WAYANAD ORPHANAGE SCHOOLS, MANAD P.O., MUTTIL, KALPETTA, WAYANAD DISTRICT. ADDL. 4. M.K.ABOOBACKER, CLERK, WAYANAD ORPHANAGE VOCATIONAL HIGHER SECONDARY SCHOOL, MUTTIL. ADDL. 5. N.K.NAFEEZA, PEON, WOHSS, PIRANGODE. ADDL. 6. A.ABDUL RAHIMAN, F.T.M. SCHOOL FOR DEAF AND BLIND MUTTIL. ADDL. 7. N.C.SAJID, S/O.LATE N.C. BACKER, N.C.HOUSE, MANAD P.O., KALPETTA, WAYANAD DISTRICT, PIN - 673122. ADDL. 8. DEPUTY DIRECTOR OF EDUCATION, KALPETTA, WAYANAD. (ADDL. R4 TO R8 ARE IMPLEADED AS ADDITIONAL RESPONDENTS AS PER ORDER DT. 31/7/07 IN IA 10560/07) BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) GOVERNMENT PLEADER, SMT.N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3313/2007 APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF REQUEST SENT BY THE ADMINISTRATOR OF WAYANAD ORPHANAGE SCHOOLS DATED 6.1.2005 TO THE 2ND RESPONDENT. EXT. P1(A): COPY OF DECLARATION SUBMITTED BY THE 3RD RESPONDENT DATED 6.1.2005. EXT. P2: COPY OF REQUEST LETTER TO THE 1ST RESPONDENT DATED 6.1.2005 ISSUED BY THE 3RD RESPONDENT. EXT. P3: COPY OF JUDGMENT DATED 3.8.2005 IN W.P.(C) NO.11139 OF 2005-A PASSED BY THIS HONOURABLE COURT. EXT. P4: COPY OF ORDER DATED 2.2.2006 ISSUED BY THE 3RD RESPONDENT. EXT. P5: COPY OF COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT SUPERINTENDENT OF POLICE WAYANAD DATED 10.3.2006. EXT. P6: COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE SECRETARY, KERALA STATE LEGAL SERVICE AUTHORITY DATED 20.7.2006. EXT. P6(A): COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE MEMBER SECREATRY, K.S.L.S.A., KOCHI DATED 6.11.2006. EXT. P7: COPY OF THE COMMUNICATION SENT BY THE LEARNED MEMBER SECRETARY TO THE 1ST RESPONDENT DATED 22.11.2006. EXT. P7(A): COPY OF THE COMMUNICATION SENT BY THE MEMBER SECRETARY TO THE 1ST RESPONDENT DATED 7.12.2006. EXT. P7(B): COPY A/D.CARD DATED 13.12.2006 SIGNED BY THE 1ST RESPONDENT. EXT. P8: COPY OF REMARKS IN CONNECTION WITH THE REJECTION OF THE APPOINTMENT OF THE PETITIONER DATED 12.12.06 NO.B4/8757/06.D. RESPONDENT'S EXHIBITS: EXT. R1(A): COPY OF REJECTION ORDER. EXT. R1(B): COPY OF REPROMOTION ORDER. EXT. R1(C): COPY OF ORDER NO.B4.1547/06/K.DIS. DATED 5.7.2006. EXT. R3(A): COPY OF ORDER NO.B4/221/05 DATED 29.7.2007. EXT. R3(B): COPY OF APPEAL 13.8.2005 OF THE 3RD RESPONDENT BEFORE THE DEPUTY DIRECTOR OF EDUCATION, WYNAD. W.P.(C) NO.3313/2007 EXT. R3(C): COPYP OF ORDER DATED 2.1.2006 OF THE DEPUTY DIRECTOR OF EDUCATION, WYNAD. EXT. R3(D): COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2004-2005 OF THE SCHOOL OF THE 3RD RESPONDENT. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No.3313 of 2007(T) ======================= Dated this the 22nd day of February, 2008 JUDGMENT A typist of an orphanage managed by the 3rd respondent who is also a manager of an aided school managed by the same organisation, is aggrieved by Exts. P4 and P8 orders by which her appointment as clerk in the school has been cancelled on refusal on the part of the 1st respondent to approve the said appointment. One Sri.Moidu, who was working as clerk in the school retired as a result of which a vacancy of clerk arose in the school with effect from 6.1.2005. The 3rd respondent appointed the petitioner to that vacancy. In support of Ext.P1 order, the manager submitted Ext.P1 A declaration to the effect that there is no 51B claimants under the management, for absorption against the retirement vacancy to which the petitioner was appointed. A 51B claimant, namely one Sri.N.C.Sajid challenged the appointment of the petitioner and another in W.P.(C) No.11139/05. This court by Ext.P3 judgment, directed that the W.P.(C) No.3313/2007/T -2- said Sajid be appointed as peon in the vacancy which will arise on 31.10.2005 when one Sri.K.Ramachandran, a peon of the school, retires. This Court specifically held that the petitioner and another who have already been appointed by the manager, are not being disturbed. However, by Ext.P4 order, the 3rd respondent manager ousted the petitioner from service on the ground that the DEO by order dated 29.7.05 refused to approve the appointment of the petitioner. Petitioner filed a complaint against the same before the DEO through the Kerala State Legal Services Authority, to whom the DEO issued Ext.P8 letter dated 12.12.2006 explaining that the petitioner's claim of appointment could not be approved because of superior Rule 43 claims of other persons working in the school and that the petitioner refused to accept the post of cook offered by the management. Petitioner is challening Exts.P4 and P8 in this writ petition. 2. Petitioner's contention is that in the place of the petitioner, the 4th respondent, one Sri.Aboobacker, was appointed. According to the petitioner, the said Sri.Aboobacker, who was earlier working as a clerk in the school had been found guilty of misappropriation as a result of which the manager W.P.(C) No.3313/2007/T -3- reverted him as a full time menial, to which post only Sri.Moidu was appointed as clerk. On the retirement of Sri.Moidu, the petitioner was appointed in that vacancy. Therefore, the said Sri.Aboobacker cannot be recognised as a superior claimant since even going by the manager's contention Sri.Aboobacker is unfit to hold the post of clerk. 4. The manager as well as the DEO has filed counter affidavit. Apparently the manager supports the petitioner. The manager has filed appeal against the order rejecting approval to the petitioner's appointment by R3(a) order. The petitioner's appointment was rejected on the ground that Sri.M.N.Aboobacker, Peon Smt.N.K.Nabeesa, Full Time Menial Sri. Abdul Azeez, Full Time Menial and Smt. Khadeeja Full Time Menial are Rule 43 claimants whose relinquishment has not been submitted. Although the manager filed Ext.R3(b) appeal against that order, he did not succeed. The manager would submit that although the relinquishment letter from Sri.M.K.Aboobacker is not required, the other three persons refused to give relinquishment letters. The DEO would submit that the petitioner's appointment cannot be approved because the above said four persons have a W.P.(C) No.3313/2007/T -4- better claim under Rule 43 of Chapter XIV A of KER for promotion to the post of clerk. While the counsel for the petitioner would submit that in so far as the said four persons have been impleaded as additional respondents in this writ petition, and have not cared to appear and contest the case, they are not entitled to be preferred to the petitioner for the post of clerk. 5. I have considered the rival contentions in detail. Perhaps it could have been said that Sri.Aboobacker having been earlier reverted as a Full Time Menial from the post of Clerk for misconduct of misappropriation, in which vacancy only Sri.Moidu, who retired leaving the present vacancy, was appointed, is not entitled to be promoted as Clerk, especially in view of the fact that the manager also supports that case. But that will not save the petitioner in so far as still she has to overcome the claims of the three other Rule 43 claimants working in the school. As such I do not think that the petitioner would be benefited by cancelling the promotion given to Sri.Aboobacker. Therefore, I do not think that the petitioner's appointment to the post of clerk can be validly approved. Hence, I do not find any merit against Exts. P4 and P8. W.P.(C) No.3313/2007/T -5- 6. The counsel for the manager submits that the manager is still prepared to appoint the petitioner as cook in his school and she can be promoted to the next arising vacancy in a higher post, if she is interested. In view of the said offer, this writ petition is disposed of with a direction to the 3rd respondent to appoint the petitioner as cook if she is willing to accept the same and to promote her a higher post to which she can be accommodated as and when vacancy arises. Even if she is not willing to accept the post of cook, the manager shall appoint her to the next arising vacancy to which the petitioner can be validly accommodated. Sd/- S.SIRI JAGAN, JUDGE jp /TRUE COPY/ P.A. TO JUDGE