IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No. 34962 of 2007(K) --------------------------------------- PETITIONERS: --------------------- 1. N.K.RENUKA, MOOPPANAR VEEDU, VADAKKEVILA P.O., KOLLAM. (NOW RESIDING AT KIZHAKKE VEEDU, PALATHARA NAGAR NO.25, THATTAMALA P.O.,KOLLAM, PIN-691 020). 2. G.PRASANNAKUMARI, RAJANI BHAVAN, KARAMKODE P.O., KOLLAM, PIN-691 035. BY ADV. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM). RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-33. 2. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM-1. 3. THE MANAGER, (ADICHANALLOR GRAMA PANCHAYAT SCHOOL, (SECRETARY, ADICHANALLOOR GRAMA PANCHAYAT), ADICHANALLOOR P.O., KOLLAM DISTRICT, PIN-691 573. R1 & R2 BY GOVT. PLEADER SMT. T.B. REMANI, R3 BY ADV. SRI.M.V.THAMBAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34962/2007-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 28/06/2005 IN W.A. NO. 1447/2004. EXT.P.2: COPY OF THE APPOINTMENT ORDER ISSUED BY THE R.3. IN RESPECT OF THE P.1. EXT.P.3: -DO- IN RESPECT OF THE P.2. EXT.P.4: COPY OF THE REPRESENTATION FILED BY THE P.1. BEFORE THE R.3. DTD. 30/10/2006. EXT.P.5: -DO- FILED BY THE P.2. DTD. 28/10/2005. RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE LETTER NO. B2-10272/06 DT. 23/04/2007. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.34962/2007 ----------------------------------------------------------- Dated this the 27th day of November, 2008 JUDGMENT The prayer in this writ petition is with reference to the claim of the petitioners for appointment to the two vacancies of Peon, which are presently available in the School of which the 3rd respondent is the Manager. 2. First petitioner was appointed as Full Time Menial in the aforesaid school, on being sponsored by the Employment Exchange, during the period from 11.6.1999 to 6.12.1999. Ext.P2 is the order of appointment. In so far as the second petitioner is concerned, he too was sponsored by the Employment Exchange and was appointed as Full Time Menial as per Ext.P3 order for the period from 17.7.2000 to 11.11.2001. Both these appointments were approved. WP(c).No.34962/2007 2 3. Petitioners submit that prior to their appointment, one Smt. Rajamoni had worked as Full time Menial for 179 days during the period from 22.10.1997 to 31.3.1998. After the tenure of the petitioners, one Raveendran was also appointed in the school as Full Time Menial for the period from 20.6.2001 to 15.12.2001. 4. Subsequently, Sri. Raveendran sought regularization as Full Time Menial and a writ petition filed by him in this behalf was dismissed by this court. Against that judgment, Sri. Raveendran filed W.A.No.1447/2004, resulting in Ext.P1 judgment. In that judgment, a Division Bench of this Court held that Sri. Raveendran or the other claimant namely Smt. Rajamoni may approach the 3rd respondent, in the event of which the 3rd respondent shall pass appropriate orders in accordance with rules. It is stated that in pursuance there of parties staked their claim for appointment as Full time Menical in the school and Smt. Rajamoni was appointed and is continuing as Full Time WP(c).No.34962/2007 3 Menial. 5. While so two vacancies of Peon arose and petitioners have filed Exts.P4 and P5 representations claiming appointments to those posts, relying on Rule 51-A of Chapter XIV-A KER. The 3rd respondent did not respond to the representations. Therefore, this writ petition has been filed praying for a direction to the 3rd respondent to appoint them to the two posts of Peon now available in the school. 6. The 3rd respondent has filed a counter affidavit. It is admitted that there are two posts of Peons lying vacant in the school. It is stated that the DEO, Kollam by Ext.R3(a) clarified that the vacancies are to be reported to the PSC for direct recruitment. It is also stated that, in pursuance to Ext.R3(a), vacancies have already been notified to the PSC. It is also contended that, Rule 51-A is inapplicable to the Panchayat schools and therefore the petitioners are not entitled to claim appointment. Counsel also contended, WP(c).No.34962/2007 4 relying on the proviso to Rule 51-A that, the tenure of the appointment being less than one academic year, petitioners are not entitled to the benefit of Rule 51-A of Chapter XIV- A KER. 7. I have considered the submission made by the counsel on either side. In so far as the applicability of Rule 51-A of Chapter XIV-A KER to the Panchayat schools is concerned, this very contention has been repelled by this court in the judgment in Vrinda V. State of Kerala (2000 (1) KLT 163) where it has been held that; "If the argument of the 3rd respondent is accepted, no teachers who were appointed for a short duration in permanent vacancies will not get the benefit of Rule 51-A. I do not think that such an interpretation is possible in this case. As already noticed, such narrow interpretation will defenitely defeat the very purpose of Rule 51-A which gives the right of re-appointment to WP(c).No.34962/2007 5 teachers who were appointed temporarily for a short duration. Therefore, I am of the definite view that a combined reading of the Kerala Panchayat(Spread of Education) Rules, R.1(3) of Chapter XIV-A KER and R.51-A, it cannot be said that the teachers appointed in the Panchayat Schools are not entitled to the benefits of rule 51- A of Chapter XIV-A KER." 8. It would appear that subsequent to this Note 3 to Rule 1 of Chapter XIV-A KER has been introduced, which provides that, subject to Rule 51-A, candidates advised from the Public Service Commission shall be appointed as teachers in schools managed by the Local Self Government Institutions. In view of the provisions contained in Rule 7 of Chapter XXIV-B KER, provisions chapter XIV-A applies to non teaching staff also and resultantly Rule 51-A of Chapter XIV-A KER applies to non teaching staff in the Panchayat WP(c).No.34962/2007 6 schools. If that be so, the contention raised by the learned counsel for the 3rd respondent that the petitioners are not eligible for the benefit Rule 51-A is only to be rejected. 9. Next it was contended that in terms of first proviso to Rule 51-A, providing that the teachers who were relieved under Rule 49 or Rule 52 shall not be entitled to preference for appointment under Rule 51-A, unless such teacher has minimum continued service of one academic year as on the date of relief. It is contended that the petitioners' tenure was for 179 days and therefore they cannot claim the benefit of Rule 51A. 10 . I am not in a position to accept this contention also. This is for the reason that the proviso can apply to the teachers relieved under Rule 49 or Rule 52. In so far as the case of the petitioners are concerned, it is not contended that the petitioners were relieved from service under Rule 49 or Rule 52 in order to apply this proviso. If that be so, the petitioners are entitled to the benefit of Rule WP(c).No.34962/2007 7 51-A of Chapter XIV-A KER. Further, this entitlement of the petitioners cannot be nullified for the reason that, acting on Ext.R3(a) 3rd respondent has notified the vacancies to the PSC. Therefore the claim of the petitioners deserves acceptance and the 3rd respondent shall necessarily do the needful in this matter. Orders as above shall be passed within 6 weeks from the date of production of a copy of the judgment. ANTONY DOMINIC JUDGE vi. WP(c).No.34962/2007 8