IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 OP.No. 14984 of 2003(H) ------------------------------------- PETITIONER(S): ------------------------- C.P.SUMA DEVI, U.P.S.A. (HINDI), B.S.U.P.SCHOOL, KALADY. BY ADVS. SRI.M.V.BOSE, SRI.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, ANGAMALY. 3. THE MANAGER, BRAHMANANDODAYAM SANSKRIT UPPER PRIMARY SCHOOL, KALADY. 4. SMT.T.S. SREEKALA, THOLALIL, EAST OKKAL, (VIA)PERUMBAVOOR - 683 550. R1 & R2 BY GOVERNMENT PLEADER SRI. P.NANDAKUMAR R3 BY ADVS.SRI.K.K.CHANDRAN PILLAI, SRI.SUDHEESH.A. R4 BY ADVS.SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/10/2010 ALONG WITH WPC NO. 16867 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss O.P.NO.14984/2003 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DTD. 23/08/2000 WITH APPROVAL. P2: COPY OF JUDGMENT DTD. 27/05/2002 IN O.P.NO.21697/2001. P3: COPY OF THE G.O.RT.NO.1867/01/G.EDN. DTD. 7/05/01. P4: COPY OF NOTES OF ARGUMENTS DTD. 2/12/02 SUBMITTED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION BY THE C.P.SUMA DEVI. P5: COPY OF ORDER DTD. 21/04/2003 G.O.(RT) 1531/2003/G.EDN. DTD. 21/04/2003. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 14984 & W.P.(C) No.16867 of 2003 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2010 J U D G M E N T These two writ petitions relate to the same subject matter and therefore are being heard and disposed of by this common judgment. The rank of parties and exhibits referred to in this judgment are as obtaining in O.P. No.14984/2003 unless specifically stated otherwise. The petitioner in O.P. No.14984/2003 was appointed as a Junior Hindi Teacher in the Brahmanandodayam Sanskrit Upper Primary School, Kalady, by the 3rd respondent manager, in a regular vacancy which arose in the school. The 4th respondent challenged that appointment on the ground that, she has a better claim for appointment to that post under Rule 51B of Chapter XIV-A of the Kerala Education Rules. That claim was on the ground that, the 4th respondent's father was an employee of the school who died in 1980. The 4th respondent became a major in 1983 O.P. No. 14984 & W.P.(C) No.16867 of 2003 -2- and she stakes a claim for appointment under the Compassionate Employment Scheme as provided under Rule 51B. Originally the Government considered the matter and decided in favour of the petitioner by Ext.P3 order. The 4th respondent challenged the same before this court by filing O.P. No.21697/2001. In that original petition, this court considered the question whether the 4th respondent had filed an application within the period of limitation prescribed under the relevant Government order in existence at the relevant time relating to compassionate employment. The 4th respondent claimed that, she filed two applications, one in 1996 and the other in 2000. In Ext.P2 judgment this court entered a specific finding that, if the 4th respondent had submitted her application only in 2000, then the same will be hit by the time limit prescribed under the Government order dated 24.05.1999 and that if the 4th respondent had infact filed an application in 1996, then as per the Government order which was in force at that time there was no time limit prescribed and therefore her O.P. No. 14984 & W.P.(C) No.16867 of 2003 -3- application if filed in 1996 was liable to be considered for compassionate employment notwithstanding the delay. There was a dispute as to whether the 4th respondent had in fact filed an application in 1996. Therefore in Ext.P2 judgment, this court directed the Government to conduct an enquiry and decide whether an application was received from the 4th respondent on 01.06.1996. Pursuant thereto, the Government passed Ext.P5 order wherein there is no finding that the 4th respondent had in fact filed an application dated 01.06.1996, in the absence of any evidence produced by the parties. Despite that finding, the Government went on to consider whether in view of the application dated 22.06.2000 filed by the 4th respondent, the appointment of the petitioner on 23.8.2000 was in order and came to the conclusion that, in view of the fact that, while appointing the petitioner, the proper procedure had not been complied with, the appointment of the petitioner is bad and therefore the 4th respondent is entitled to appointment to the vacancy to which the petitioner was O.P. No. 14984 & W.P.(C) No.16867 of 2003 -4- appointed on 23.08.2000. It was further directed that, the petitioner be accommodated in the next suitable vacancy in the school. The petitioner is challenging Ext.P5 order. The 4th respondent has filed W.P.(C) No.16867/2003 for implementing Ext.P5 order in O.P. No.14984/2003. 2. I have considered the rival contentions of all parties. 3. After hearing both sides, I am of opinion that, in view of Ext.P2 judgment, the parties cannot go beyond the specific findings and directions in Ext.P2 judgment. Ext.P2 judgment reads as follows: “Claiming appointment under the dying-in-harness Scheme in the third respondent's school as Hindi Teacher, the petitioner has filed this Original Petition. The brief facts necessary for the disposal of the case are the following: 2. The petitioner's father, late B. Sreenivasan Kartha was a primary teacher in the third respondent's school. He died in harness in 1980. The petitioner who was a major (sic) at that time attained majority in the year 1983. The petitioner submits that she submitted an application for appointment under the dying-in-harness scheme on 18.8.1993. In 1996 she passed Rashtra Basha Praveen Examination and therefore became qualified to be appointed as a Hindi Teacher. Thereupon, she submitted another application dated 1.6.1996 claiming appointment under the dying-in-harness scheme. During the academic year 2000-2001 when a vacancy arose in the post of Junior Hindi Teacher, she submitted Exts.P1 and P2 applications before the Manager. But, instead of appointing her, the fourth respondent was appointed in that vacancy on O.P. No. 14984 & W.P.(C) No.16867 of 2003 -5- 23.8.2000. The petitioner moved the Educational Officers pointing out her grievance. Taking into account the objections raised by her, the approval of appointment of the fourth respondent was declined by the Assistant Educational Officer. Therefore, the fourth respondent filed a revision before the Government. This Court as per Ext.P4 Judgment directed the Government to dispose of the revision filed by the 4th respondent. After hearing both sides, the Government issued Ext.P5 order rejecting the petitioner's claim and ordering to approve the appointment of the fourth respondent. Petitioner challenges Ext.P5 on various grounds. 3. Respondents 3 and 4 have filed counter affidavits supporting the impugned orders. The main point raised by both of them is that the petitioner's application is highly belated. It is submitted that the petitioner has for the first time staked her claim only in 2000. At the relevant time, the appointment under the dying-in-harness scheme is governed by G.O. (P) No.12/99/P & ARD dated 24.5.1999. As per Rule 51B, the relevant orders then in force will apply mutatis mutandis for considering the claim for appointment under the dying-in-harness scheme in aided schools. If the petitioner has submitted her application only in 2000, then the same will be hit by the time limit prescribed under the said Government Order. The Government proceeded on the footing that she had applied for the first time only in the year 2000 and therefore her claim was rejected. 4. But the petitioner in the Original Petition has pleaded that she has submitted an application for appointment on 1.6.1996. If the said submission is correct, the G.O. governing appointment under the dying-in-harness scheme in the Government service at the relevant time was G.O. (P) No.7/95/P & ARD dated 30.3.1995. As per the said order, there was no time limit prescribed for submitting the application. Therefore, if an application was submitted on 1.6.1996, the same will be valid. Even if there are any defects, the same can be cured and as per paragraph 3 of G.O. (P) No.12/99/P & ARD dated 24.5.1999, applications received after the date of issue of that order shall be disposed of in accordance with the said order and pending applications on the date of issue of that order shall be dealt with as per earlier orders. Therefore, if such an application was submitted on 1.6.1996, the petitioner's application is liable to be considered ignoring the stipulation regarding time limit. At the time of hearing, the petitioner took time and filed Ext.P6 along with CMP No.16013/2002. It is a representation submitted by her before the Government on 6.4.2001 in which it is pleaded, inter alia, that she had O.P. No. 14984 & W.P.(C) No.16867 of 2003 -6- submitted an application on 1.6.1996. The contesting respondents have filed affidavits disputing the claim of the petitioner in this regard. Therefore, I called for the Government file leading to the issuance of Ext.P5. I found a copy of Ext.P6 in the Government file. Whether the petitioner has applied before the issuance of the G.O. dated 24.5.1999 is a dispute regarding a material fact which may change the course of the case. The Government failed to consider this case of the petitioner while issuing Ext.P5. Therefore, I remit the matter for fresh consideration to the first respondent Government. The government shall cause an enquiry to be made through the concerned educational officer and find out the veracity of the claim made by the petitioner in this regard and take a fresh decision in accordance with law on the claim of the petitioner for appointment under the dying in harness scheme. This being the case of a claimant under the dying-in-harness scheme, I feel that such a course is required in the interest of justice. I am not quashing the approval of appointment of the fourth respondent. But, it is ordered that the said approval will be subject to the result of the order that may be passed by the Government as directed above. The parties will be afforded reasonable opportunity to present their case by the Government. In case the petitioner's claim is upheld and the fourth respondent faces retrenchment, she will be accommodated in the next suitable vacancy that may arise in the school in future.” (underlining supplied) From that judgment, it is very evident that, this court has categorically held that, if the 4th respondent had submitted an application only in 2000, then in view of the limitation prescribed in Government order dated 24.05.1999 she is not entitled to appointment under Rule 51 B of Chapter XIV of K.E.R. It was further held that, if the 4th respondent had infact filed an application on 01.06.1996, she is entitled to be appointed in preference to the petitioner in the vacancy O.P. No. 14984 & W.P.(C) No.16867 of 2003 -7- as on 23.08.2000. Therefore, in view of Ext.P2 judgment, the only question the Government could have considered in law is as to whether the 4th respondent had in fact filed an application for appointment under Rule 51 B on 01.06.1996. If the finding was against the 4th respondent, going by the judgment she is not entitled to any relief whatsoever. The Government is also circumscribed by that judgment and therefore the only question that the Government could have considered is also as to whether the 4th respondent had in fact filed an application on 01.06.1996. Ext.P5 order reads thus: “As per the G.O. read as Ist paper above, Government ordered to approve the appointment of Smt. P.B. Sobhanadevi as Junior Hindi Teacher with effect from 4.7.2000 and that of Smt. C.P. Sumadevi as Hindi Teacher with effect from 23.8.2000 in B.S.U.P. Kalady, Ernakulam if it is otherwise in order. As per the Judgment read as 2nd paper above the Hon'ble High Court remitted the matter to Government for fresh consideration and directed to cause an enquiry to be made through the concerned Educational Officer and find out the veracity of the claim made by the petitioner, Smt. T.S. Sreekala in the O.P. and to take a fresh decision in accordance with law on the claim of the petitioner for appointment under the dying in harness scheme. Accordingly Govt. conducted an enquiry through the Director of Public Instruction and a hearing was also allowed to all the affected parties. O.P. No. 14984 & W.P.(C) No.16867 of 2003 -8- The Enquiry report of the Director of Public Instruction reveals that records relating appointments in L.P.S./U.P.S. are not maintained by them. Whereas records relating appointments in H.S. and H.S.S. are available there. Records with effect from 1.7.2002 in respect of U.S.S. are available there. Hence the enquiry officer at first expressed her inability to arrive at a conclusion whether such an application dated 1.6.96 was received in the U.P.S. On questioning the counter petitioner Smt. Sumadevi she has stated that she was appointed in the school after filing an application (no date mentioned) and by attending an interview by the Manager during 1999. On questioning the Manager about the date of submission of application dt.1.6.96 he has stated that an application dt.22.6.2000 of Smt. Sreekala was received and the same was time barred and incomplete and hence rejected. Hence Smt. Sumadevi was appointed as L.G. Hindi Teacher after an interview during 2000. Regarding the above statements of the Manager and Sumadevi, the enquiry officer is of opinion that the Manager has appointed Sumadevi as L.G. Hindi Teacher according to his own personal interest without observing the rules and regulations regarding the appointment of 51-B claimant. For that purpose, the Manager has purposely rejected the application of Smt. Sreekala. In Order to substantiate the above opinion the Enquiry Officer has pointed out that no records such an application submitted by Smt. Suma devi details of minutes of interview etc. are not available in that office. It is also pointed out that before giving a reply to Sreekala regarding the defects in the application dt.22.6.2000 Sumadevi was appointed. The court direction is to find out the veracity of the claim of the petitioner (Sreekala) that she filed an application dt.1.6.96 for appointment under the Compassionate Employment Scheme before the school authorities. The Enquiry Officer has stated that in U.P.S. records are available only with effect from 22.7.2002. Hence the enquiry officer was not in a position to prove whether the application dt. 1.6.96 was received there. O.P. No. 14984 & W.P.(C) No.16867 of 2003 -9- But regarding the application dt. 22.6.2000 submitted by Sreekala and rejected by the Manager pointing out certain defects in its, the enquiry Officer was able to prove that there was favouritism on the part of the Manager, ie. when the application dt. 22.6.2000 of Smt. Sreekala 51-B claimant was received there, the Manager has appointed Sumadevi without any application. In the circumstances the Manager, B.S. U.P.S., Kalady is directed to appoint Smt. T.S. Sreekala, D/o. B. Sreenivasan Kartha “Tholali”, East Okkal, Perumbavoor, Ernakulam as Hindi Teacher in the school with effect from 23.8.2000 and Smt. C.P. Sumadevi, 4th respondent in the O.P. No.21697/01-G of High Court should be accommodated in the next suitable vacancy arise in the school. The Assistant Educational Officer, Ankamaly is directed to take follow-up action in this regard. The direction contained in the Judgment read as 2nd paper above is thus compled (sic) with.” As is evident from that order, the finding is that, there is no evidence to show that, the 4th respondent had filed an application on 01.06.1996. Despite the same, the Government considered whether the Manager should have appointed her considering her application dated 22.06.2000. In view of Ext.P2 judgment, the Government had no competency to do so. It is strange to find that, after finding that the petitioner's appointment was without following the procedure, the Government had directed the Manager to appoint the 4th respondent on the basis of her application dated 22.06.2000 which could only have been O.P. No. 14984 & W.P.(C) No.16867 of 2003 -10- considered as an application otherwise than under Rule 51 B, in which case the Government should have held that, that could also have been done only after complying with the procedure prescribed. However, the Government has straight away directed the Manager to appoint the 4th respondent which is in any event patently illegal. According to me, insofar as by Ext.P2 judgment, this court had confined the parties to the only question as to whether the 4th respondent had filed an application on 01.06.1996, in the absence of any evidence to show that such an application was filed, the 4th respondent could not have been given any relief whatsoever especially on the basis of the application filed in 2000. This is so especially since there was no challenge against the appointment of the petitioner on the ground that proper procedure had not been followed in that appointment. On the other hand all along the only question canvassed was as to whether the 4th respondent was entitled to preferential appointment under Rule 51B of Chapter XIVA of the K.E.R. Therefore, O.P. No. 14984 & W.P.(C) No.16867 of 2003 -11- Ext.P5 is clearly vitiated. Accordingly the same is quashed. Insofar as there is no evidence to show that the 4th respondent had filed any application prior to 2000, the appointment of the petitioner on 23.8.2000 could not have been interfered with, in view of Ext.P2 judgment. In the above circumstances, Ext.P3 order dated 07.05.2001 passed by the Government upholding the approval of the appointment of the petitioner on 23.8.2000 would hold the field and the petitioner would be entitled to all benefits arising therefrom. Since I have set aside Ext.P5 order in W.P.(C) No.16867/2003 for implementing Ext.P5 order, the petitioner therein, who is the 4th respondent in the other writ petition is not entitled to any reliefs. The learned counsel for the petitioner in W.P.(C) No.16867/2003 makes a fervent plea that, the petitioner's right to seek appointment in a subsequent vacancy may be reserved. I am not expressing any opinion on the same and if the 4th respondent has any such right, it would be open to her to agitate the same before the appropriate authority. In the O.P. No. 14984 & W.P.(C) No.16867 of 2003 -12- result, O.P. No. No.14984/2003 is allowed and W.P.(C) No. 16867/2003 is disposed of with the above observation. S. SIRI JAGAN JUDGE shg/