IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).No. 28164 of 2010(U) --------------------- PETITIONER : --------------------- SIDRATHUL MUNTHAHA AGED 28 YEARS, W/O.TARIK LOWER PRIMARY SCHOOL ASSISTANT (RELIEVED) A.L.P.SCHOOL, PAZHEDOM (RESIDING AT ALHILAL MANZIL P.O.PATHAPPIRIYAM, MANJERI-676 123, MALAPPURAM DISTRICT). BY ADVS. SRI.V.A.MUHAMMED SRI. K.E. HAMSA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVT. (P.O.) SECRETARIAT, TRIVANDRUM-695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, MALAPPURAM-676123. 3. THE ASSISTANT EDUCATIONAL OFFICER, MANJERI, MALAPPURAM-676123, (P.O) KARAKKUNNU. 4. SRI.T.P.ABDUL SALAM MANAGER, A.L.P. SCHOOL, PAZHEDAM, POST KARAKUNNU MANJERI, MALAPPURAM DISTRICT (RESIDING AT THADIAMPURATH HOUSE, MUTHIRIKUNNU, PO KARAKKUNNU, MANJERI, MALAPPURAM DISTRICT-676 123). 5. SMT. T.K. KHOULATH, FULL-TIME ARABIC TEACHER, A.L.P. SCHOOL, PAZHEDAM, KARAKKUNNU POST, MANJERI, MALAPPURAM DISTRICT – 676 123. R1 TO R3 BY GOVT. PLEADER SMT. NISHA BOSE R4 BY ADV. SRI.T.C.SURESH MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2011, ALONG WITH WP(C) NO. 28482/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.28164 & 28482 Of 2010 ----------------------------------------------------- DATED THIS THE 4th DAY OF FEBRUARY, 2011 J U D G M E N T The petitioner in W.P.(C)No.28164/10 is a claimant under Rule 51A of Chapter XIV-A of KER. The prayer is for a direction to implement the order passed by the Government as per Exhibit P1, whereby the Manager is directed to appoint the said petitioner as Arabic Teacher forthwith, if a sanctioned post of Arabic is available in the School. The said order is under challenge by the 4th respondent-Manager in the said Writ Petition, in W.P.(C)No.28482/10. 2. The learned counsel for the petitioner in W.P.(C) No.28482/10 contends that the 4th respondent is a retrenched teacher and the Manager appointed another person in the vacancy to which the 4th respondent claimed the benefit of Rule 51A of Chapter XIV-A of KER. The main ground raised in the Writ Petition is that even though the 1st respondent had sent a notice of hearing to him, the same was not received by him. According to the learned counsel for the petitioner, the order Exhibit P5 was passed without hearing the said petitioner. W.P.(C)Nos28164 & 28482/10. -2- 3. The learned Government Pleader and the learned counsel appearing for the petitioner in W.P.(C)No.28164/10 submitted that the petitioner in W.P.(C)No.28482/10 was actually served with a notice through registered post. The fact that the registered notice was served is admitted by the learned counsel for the petitioner therein also. It is pointed out that because of the illness of the daughter, he could not avail of the opportunity and appear at the time of hearing. 4. The short question is whether the petitioner in W.P.(C) No.28164/10 is a claimant under Rule 51A of Chapter XIV-A KER. Evidently, the said petitioner was appointed initially as an LPSA as per order dated 11.10.2004 in a resignation vacancy. The said appointment was approved with effect from 1.2.2006 by the Assistant Educational Officer, Manjeri by order dated 14.3.2007 and hence the claim under Rule 51A is well recognised. 5. The retrenchment occurred when the AEO revised the staff fixation order for the year 2006-07. 6. In the light of the above factual circumstances, it cannot be disputed that the said petitioner is a valid claimant under Rule 51A. If that be so, the person to whom the W.P.(C)Nos28164 & 28482/10. -3- petitioner-Manager in W.P.(C)No.28482/10 has given appointment cannot have a superior claim over him. She is the 5th respondent in W.P.(C)No.28164/10. The Government, therefore, after considering all the aspects found in Exhibit P1 order that the petitioner in W.P.(C)No.28164/10 is qualified to be appointed to the said post in Arabic and one vacancy was available in the school later. Accordingly, it is found that she is the eligible claimant. Therefore, unless and until the petitioner in W.P.(C)No.28482/10 succeeds in disputing the claim by any known process of law, it cannot be said that the view taken by the Government is irrational or unreasonable or is against the statute. But as found already the claimant under Rule 51A is liable to be appointed in the fresh vacancy filled up by the Manager. 7. In that view of the matter, even though the learned counsel for the petitioner in W.P.(C)No.28482/10 prayed for an opportunity to have a fresh hearing before the Government, I am not satisfied that the said request need be acceded to in the light of the fact that from the proven facts, no other conclusion is possible and a futile writ need not be issued. Exhibit P1 produced W.P.(C)Nos28164 & 28482/10. -4- in W.P.(C)No.28164/10 is a reasoned order. The claimant under Rule 51A of Chapter XIV-A is thus entitled to be appointed in the vacancy which arose in the school. 8. The learned counsel for the petitioner in W.P.(C) No.28482/10 and the learned counsel for the 5th respondent in W.P.(C)No.28164/10 submitted that a fresh vacancy will arise in April 2011 and the Rule 51A claimant can be accommodated in the said vacancy. Evidently, the claim under Rule 51A supersedes any other claim by a fresh hand. Therefore, unless and until the petitioner in W.P.(C)No.28164/10 agrees for such a course, this Court will not be justified in acceding to the said request also. Learned counsel for petitioner therein submitted that his client is entitled for the first vacancy itself. Hence this Court cannot accede to the said submission. But, evidently, if the Manager is prepared to fill up the said vacancy, then the 5th respondent in W.P.(C)No.28164/10 will be appointed. 9. In that view of the matter, W.P.(C)No.28164/10 is allowed and W.P.(C)No.28482/10 is dismissed. The Manager will appoint the petitioner in W.P.(C)No.28164/10 within a period of two weeks. Consequential order for approval of the appointment W.P.(C)Nos28164 & 28482/10. -5- shall also be passed by the educational authorities concerned, without delay. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn