IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 WA.No. 688 of 2008 --------------------------- (JUDGEMENT IN W.P.(C).NO.23190/2007 DATED 06/08/2007) .................... APPELLANT/ PETITIONER: -------------------------------------- RADHIKA, U.P.S.A, KANDAMANGALAM HIGHER SECONDARY SCHOOL, KANDAMANGALAM, RESIDING AT NIVARTHIL HOUSE, CHERTHALA, KADAKKARAPPALLY P.O. BY ADV. SRI.P.SREEKUMAR, SRI.K.S.MANU (PUNUKKONNOOR). RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA. 4. THE MANAGER, KANDAMANGALAM HIGHER SECONDARY SCHOOL, KADAKKARAPPALLY, CHERTHALA. 5. PRASANTH.N.S., U.P.S.A, KANDAMANGALAM HIGHER SECONDARY SCHOOL, KANDAMANGALAM, RESIDING AT NIVARTHIL HOUSE, VATTAKKAL P.O., CHERTHALA. BY GOVT. PLEADER SRI. K. SANDESH RAJA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2008, ALONG WITH W.A NO.706/2008 & CONNECTED CASES, THE COURT ON 10/06/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------------------------------------- W.A.Nos.688 of 2008, 706 of 2008, 736 of 2008 & 761 of 2008 ------------------------------------------------------- Dated, this the 10th day of June , 2008 JUDGMENT P.N.Ravindran,J. Since common questions arise in these writ appeals, they were heard together and are being disposed of by this common judgment. 2. W.A.No.706 of 2008 and W.A.No.736 of 2008 arise from the judgment of the learned Single Judge in W.P.(C) No.10864 of 2006 and are filed by the sixth respondent and the petitioner therein respectively. W.A.No.688 of 2008 arises from the judgment of the learned Single Judge in W.P.(C) No.23190 of 2007 and is filed by the petitioner therein. W.A.No.761 of 2008 arises from the judgment of the learned Single Judge in W.P.(C) No.11140 of 2005 and is filed by the fifth respondent therein. The parties are referred to as they are arrayed in W.P.(C) No.10864 of 2006 and except otherwise indicated, the documents referred to are those produced therein. 3. The brief facts of the case are as follows: Late WA No.688/08, etc. -: 2 :- C.R.Sivappan was working as High School Assistant in Kandamangalam Higher Secondary School, Cherthala situated within the territorial limits of the jurisdiction of the District Educational Officer Cherthala. He passed away while in service on 13-12-2000 following a road accident, leaving behind his wife and two children as his legal heirs. His wife Smt.Prasobha submitted a request to the Manager of the Kandamangalam Higher Secondary School (hereinafter referred to as the “school” for short) on 17-11-2001 seeking employment for her son Sri.N.S.Prasanth, the fifth respondent, under Rule 51B of Chapter XIV-(A) of the Kerala Education Rules, 1959 (hereinafter referred to as the “KER” for short). On 8-7-2003 she submitted yet another application seeking employment for her son. The fifth respondent passed the B.Sc Degree Examination in Chemistry in April, 2001 and the B.Ed Degree Examination in Physical Science in April, 2003 and was qualified and eligible to be appointed as High School Assistant (Physical Science). The Manager of the school however appointed Smt.V.S.Radhika, the sixth respondent (appellant in W.A.No.688 of 2008 and W.A.No.706 of 2008) as UPSA in a short term leave vacancy for the period from WA No.688/08, etc. -: 3 :- 12-8-2003 to 11-11-2003. The fifth respondent thereupon submitted a representation dated 20-8-2003 to the District Educational Officer, Cherthala requesting that officer to take a decision on his claim under Rule 51B of Chapter XIV-(A) of the KER. He also filed W.P.(C) No. 27638 of 2003 in this Court. By Ext.P7 judgment delivered on 28-8-2003 this Court directed the District Educational Officer, Cherthala to consider the said representation and to pass orders thereon. Pursuant to the said direction, the District Educational Officer conducted a hearing on 23-10-2003 and later on 7-11-2003. Respondents 5 and 6 and the Manager of the school were heard. By Ext.P8 order passed on 22-11-2003, the District Educational Officer held that the sixth respondent who was appointed from the open market had no superior right over the claim made by the fifth respondent. The District Educational Officer also held that the fifth respondent had a right on 8-7-2003 to be appointed in the existing/next arising vacancies in the school and that the Manager was bound to appoint him in the existing/next arising vacancy in any of the categories of posts, viz., HSA/UPSA/Clerk/Attender/Last Grade Servant etc. WA No.688/08, etc. -: 4 :- 4. The Manager of the school challenged the order passed by the District Educational Officer in appeal before the Deputy Director of Education, Alappuzha. By Ext.P9 order passed on 17-11-2004, the Deputy Director of Education rejected the appeal filed by the Manager and upheld the claim of the fifth respondent. The Deputy Director of Education held that the approval of appointment of the sixth respondent cannot be considered as it was one made overlooking the fifth respondent's claim. 5. Shortly thereafter, the fifth respondent filed W.P. (C) No.11140 of 2005 in this Court seeking implementation of the orders passed by the District Educational Officer and the Deputy Director of Education. The Manager filed a revision petition dated 7-5-2005 before the State Government, challenging Exts.P8 and P9 orders. After moving the State Government, the Manager sent a letter dated 27-6-2005 (Ext.P6 in W.P.(C) No.11140 of 2005) to the fifth respondent offering him appointment as Full Time Menial and called upon him to apply in the prescribed form within 15 days from the date of receipt of the said letter. As directed in the said letter, the fifth respondent WA No.688/08, etc. -: 5 :- submitted Ext.P11 application dated 12-7-2005. The Manager, thereafter appointed him as Full Time Menial on 28-11-2005. On the very same day, the fifth respondent submitted Ext.P12 letter addressed to the Manager of the school referring to his appointment as Full Time Menial, stating that on the date on which the District Educational Officer approves his appointment as Full Time Menial, he will withdraw all the cases filed in Court before 28-11-2005. 6. The Manager of the school had in the meanwhile filed a revision petition before the Director of Public Instruction challenging the orders passed by the District Educational Officer and Deputy Director of Education, declining to approve the appointment of the sixth respondent. By Ext.P10 order passed on 27-10-2005, the Director of Public Instruction allowed the said revision petition and directed the District Educational Officer to approve the sixth respondent's appointment as UPSA for the period from 12-8-2003 to 11-11-2003. The Manager had, as stated earlier, filed a revision petition before the State Government challenging Ext.P9 order passed by the Deputy Director of Education. That revision petition was disposed of by WA No.688/08, etc. -: 6 :- the State Government by Ext.P13 order passed on 6-3-2006. By the said order, the State Government held that the fifth respondent had a claim in the year 2003 for appointment as UPSA. The State Government directed the Manager of the school to consider the appointment of the fifth respondent as H.S.A./U.P.S.A in any of the existing or next arising vacancies in the school. The Government also directed that the approval of appointment of the sixth respondent can be considered only after the claim of the fifth respondent which existed at the time of her appointment is satisfied. The Manager thereupon filed W.P.(C) No.10864 of 2006 challenging Ext.P13 order and seeking other reliefs including a direction to the District Educational Officer to approve the appointment of the sixth respondent as UPSA for the period from 12-8-2003 to 11-11-2003. The sixth respondent also filed W.P.(C) No.23190 of 2007 challenging Ext.P13 and seeking a direction to the District Educational Officer, Cherthala to approve her appointment as UPSA. All the three writ petitions were heard together. By a common judgment delivered on 6- 8-2007 the learned single Judge dismissed W.P.(C) Nos.10864 of 2006 and 23190 of 2007 and allowed W.P.(C)No.11140 of WA No.688/08, etc. -: 7 :- 2005 filed by the fifth respondent. The Manager was directed to comply with the directions issued by the State Government in Ext.P13. The Manager and the sixth respondent have filed these writ appeals challenging the correctness of the decision of the learned Single Judge. 7. We heard Sri. V.A.Muhammed, the learned counsel appearing for the Manager, who is the appellant in W.A.Nos.736 of 2008 and 761 of 2008 and Sri.P.Sreekumar, the learned counsel appearing for Smt.V.S.Radhika who is the appellant in W.A.Nos.688 of 2008 and 706 of 2008. The main contention raised by the learned counsel for the appellants is that the applications submitted on 17-11-2001 and 8-7-2003 were not in the prescribed form, that they were submitted by Smt.N.S.Prasobha, mother of the fifth respondent and that prior to the submission of Ext.P11 application on 12-7-2005, the fifth respondent had not submitted any application claiming appointment under Rule 51B of Chapter XIV-(A) of the KER. It was also contended that as the fifth respondent was appointed as a Full Time Menial on 28-11-2005 in recognition of his claim for appointment under Rule 51B of Chapter XIV-(A) of the KER, WA No.688/08, etc. -: 8 :- he cannot claim appointment as UPSA with effect from 8-7- 2003 and therefore, Ext.P13 is liable to be set aside. 8. We have considered the submissions made at the Bar by the learned counsel appearing for the appellants. Unlike other schemes for compassionate appointment, Rule 51B of Chapter XIV-(A) of the KER is statutory in nature. We have held in S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026) that Managers of aided schools have a duty to alert the dependents of a deceased employee regarding the occurrence of vacancies so that one among them who is qualified can apply for the post. It was held that the general principles governing appointment under the dying-in-harness scheme in Government service do not apply to aided schools and that if there is any defect in the application, the Manager has to give the applicant time to rectify the defect and should thereafter appoint him. As noticed by the learned Single Judge, the fifth respondent who had passed the B.Sc. Degree Examination in Chemistry in April, 2001 and the B.Ed Degree Examination in Physical Science in 2003 was qualified and eligible to be appointed as UPSA on 12-8- 2003 when the Manager appointed the sixth respondent from the WA No.688/08, etc. -: 9 :- open market as UPSA in a short term leave vacancy. It is not in dispute that on behalf of the fifth respondent his mother Smt.N.S.Prasobha had submitted two applications to the Manager, one dated 17-11-2001 and the other dated 8-7-2003 claiming appointment under Rule 51B of Chapter XIV-(A) of the KER for her son. The Manager has no case before any of the authorities or in W.P.(C) No.10864 of 2006 that he had not received the said applications. On the other hand, the case set out by the Manager is that an application in the prescribed form was received by him only on 12-7-2005 and that prior to that date no valid application was received from the fifth respondent claiming appointment under Rule 51B of Chapter XIV-(A) of the KER. As held by us earlier in S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026) the Manager had a statutory duty to inform Smt.V.S.Prasobha before the appointment of the sixth respondent on 12-8-2003 that a vacancy of UPSA has arisen or is likely to arise in his school and that she or one among her children has to apply in the prescribed form claiming appointment to that post. The Manager, instead of adopting the said course kept quiet without replying to the representations submitted by WA No.688/08, etc. -: 10 :- Smt.N.S.Prasobha on 17-11-2001 and 8-7-2003 and appointed the sixth respondent as UPSA on 12-8-2003. The State Government has, in our opinion, considered all aspects of the matter when it passed Ext.P13 order upholding the claim of the fifth respondent. The State Government has in Ext.P13 noticed that the family members of late C.R.Sivappan had put forth a claim for appointment on compassionate ground on 17-11-2001 and 8-7-2003 and that the Manager did not reject the applications or even send a reply. The State Government has also noticed that when the sixth respondent was appointed on 12-8-2003, the fifth respondent was qualified to be appointed as UPSA and had a claim under Rule 51B of Chapter XIV-(A) of the KER and that it was ignoring the said claim that the sixth respondent was appointed. We therefore agree with the learned Single Judge that there is no merit in the challenge to Ext.P13. 9. Lastly it was contended that as respondents 5 and 6 have since been appointed as UPSA with effect from 5-6-2006 and as both of them are presently working in the school, the fifth respondent cannot have any subsisting grievance and therefore on that ground also Ext.P13 is to be set aside. It was WA No.688/08, etc. -: 11 :- submitted before the learned Single Judge that one of the two vacancies against which respondents 5 and 6 were appointed on 5-6-2006 is yet to be sanctioned by the department. If the posts are not sanctioned, it will cause serious prejudice to the fifth respondent whose right under Rule 51B of Chapter XIV-(A) of the KER was overlooked when the sixth respondent was appointed as UPSA on 12-8-2003. The claim of the fifth respondent having been established and found in his favour by all the authorities and as we have upheld that decision, we find no reason to set aside Ext.P13 on that ground also. Though the learned counsel for the appellant also referred to and relied on Ext.P10 order passed by the Director of Public Instruction approving the appointment of the sixth respondent as UPSA for the period from 12-8-2003 to 11-11-2003, we notice that the said order was passed without notice to the fifth respondent and that too on a revision petition filed by the Manager against the order declining to approve the appointment of the sixth respondent. The claim of the fifth respondent under Rule 51B was not adjudicated upon by the Director of Public Instruction, after affording him an opportunity of being heard. The finding in WA No.688/08, etc. -: 12 :- Ext.P10 cannot therefore bind the fifth respondent. Further, at that point of time the revision petition filed by the Manager against Ext.P9 was pending before the State Government and Ext.P13 was passed on the said revision petition. In view of Ext.P13 order, passed by the Government, the direction contained in Ext.P10 order, issued by an Officer, subordinate to the Government cannot have any effect. The learned Single Judge has on consideration of the facts and circumstances of the case held that the decision taken by the State Government in Ext.P13 is perfectly valid and legal. We are of the opinion that the view taken by the learned Single Judge is the correct view and cannot be said to be wrong warranting interference in appeal. In the result, the writ appeals fail and they are dismissed in limine. (K.BALAKRISHNAN NAIR) JUDGE. (P.N.RAVINDRAN) JUDGE. MS