IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 RP.No. 302 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.28108/2009 Dated 05/03/2010 .................... REVIEW PETITIONERS/RESPONDENTS 6 & 7 IN W.P.(C): ---------------------- --------------------------------------------------------- 1. K.P.INDIRA, W/O.LATE ACHUTHA PRAKASHAN, ACHUDEVI KRIPA, POKKUNNI P.O., VADAVANNOOR, PALAKKAD. 2. K.P.PRASANTH, S/O.LATE ACHUTHA PRAKASHAN ACHUDEVI KRIPA, POKKUNNI P.O., VADAVANNOOR, PALAKKAD. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5 IN W.P.(C): --------------------------------------------------------------------------------------------------- 1. T.M.NARAYANAN, FULL TIME MENIAL, POLACHIRAKKAL HIGH SCHOOL, P.O.PADAGIRI, NELLIAMPATHY, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 5. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 6. THE MANAGER, POLACHIRAKKAL HIGH SCHOOL, P.O.PADAGIRI, NELLIAMPATHY, PALAKKAD. R1 BY ADV. SRI.P.M.BENZIR R2 TO R5 BY GOVT. PLEADER SRI. T.T. MUHAMMED R6 BY ADV. SRI. MURALI PURUSHOTHAMAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: shg/ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - R.P. No.302 of 2010 in W.P.(C)No.28108 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2010 O R D E R This review petition is filed by respondents 6 & 7 seeking to review my judgment dated 05.03.2010 in W.P.(C)No.28108/2009. My judgment reads as follows: The petitioner was appointed as a full time menial in an aided school against a regular vacancy, which arose on 1-7-2003. That appointment was approved by the 4th respondent and salary and allowances were disbursed to the petitioner. However, later, the salary and allowances due to the petitioner were withheld without any notice. On enquiry by the petitioner, he was informed that Sri. Achutha Prakash died in harness while working as a full time menial in the school on 25-6-2002, and therefore the claim of the dependent of the deceased employee should have been considered before the petitioner's appointment could have been approved. The petitioner approached the educational authorities in the matter, However, by Exts.P2, P13, P18 and P21, the petitioner's contentions have been rejected. It is under the above circumstances, the petitioner has filed this writ petition challenging the impugned orders. 2. The petitioner's specific contention is that the vacancy in which the petitioner was appointed arose on 1-7-2003 and the petitioner was appointed with effect from 4-7-2003. As on that date, the 7th respondent, who claims preferential appointment under Rule 51B of Chapter XIVA of the KER as the dependent of an employee who died in harness, was still a minor and he became major only on 28-2-2004. Therefore, according to the petitioner, by no stretch of imagination, the 7th respondent could have laid claim to the vacancy which arose on 1-7-2003. Hence, neither on the date of occurrence of the vacancy nor on the date of appointment of the petitioner, the 7th respondent was a major and therefore the R.P. No.302 of 2010 in W.P.(C)No.28108 of 2009 -2- orders upholding the claim of the 7th respondent to that vacancy is clearly illegal is the contention of the petitioner. 3. I have heard the parties, including the counsel for respondents 6 and 7. 4. In view of the specific contention raised by the petitioner regarding the question as to whether the 7th respondent was a minor at the time of appointment of the petitioner. I specifically asked the counsel for the 7th respondent as to whether the same is correct and the counsel for the 7th respondent candidly admitted that the 7th respondent was a minor on that date. If that be so, the petitioner's appointment could not have been interfered with on the ground that the 7th respondent had a claim for the said vacancy. Accordingly, the impugned orders are quashed. It is declared that the appointment and approval of the petitioner as full time menial with effect from 4-7-2003 are perfectly legal and valid and that he is entitled to salary and allowances attached to the post held by him. Withheld salary of the petitioner shall be released to him as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. However, I make it clear that this will not stand in the way of the 7th respondent preferring claims for subsequent vacancies, which have arisen after the 7th respondent has become major. The writ petition is allowed as above. 2. The review petition is now filed taking the contention that although the 7th respondent in the writ petition was not a major at the time as on the date when the petitioner in the writ petition was appointed, the 6th respondent-mother of the 7th respondent had a right to R.P. No.302 of 2010 in W.P.(C)No.28108 of 2009 -3- be appointed and therefore that right should have been considered. I am of the opinion that it is too late in the day for the 6th respondent to take such a contention which was never taken either in the writ petition or before the educational authorities. In fact the orders impugned in the writ petition only directed appointment of the 7th respondent in the writ petition the validity of which alone was considered by him against which the 6th respondent had no objection whatsoever. In fact as evidenced by Ext.P12, before the educational authorities the claim of the 6th respondent was for direction to appoint the 7th respondent. In such circumstances, I am of opinion that the review petition itself is an abuse of process of court, and is liable to be dismissed with exemplary costs. Therefore this review petition is dismissed with costs of Rs.10,000/-. S. SIRI JAGAN JUDGE shg/