IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WA.No. 116 of 2006() -------------------- AGAINST THE JUDGEMENT IN WPC.15828/2005 Dated 05/11/2005 .................... APPELLANT/4TH RESPONDENT:- -------------------------------------------- V.K. ANIL KUMAR, PEON, K.R.G.P.M.V. HIGHER SECONDARY SCHOOL & HIGH SCHOOL, P.O. ODANAVATTOM, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S)/PETITIONER & RESPONDENTS 1 TO 3 & 4:- ------------------------------------------------------------------------------------ 1. S. RAJESH KUMAR, CLERK, K.R..G.P.M.V. HIGHER SECONDARY SCHOOL & HIGH SCHOOL, P.O. ODANAVATTOM, KOTTARAKKARA, KOLLAM DISTRICT. 2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM. 4. THE MANAGER, K.R.G.P.M.V. HIGHER SECONDARY SCHOOL & HIGH SCHOOL, P.O. ODANAVATTOM, KOTTARAKKARA, KOLLAM DISTRICT. 5. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. ADV. SRI.GEORGE POONTHOTTAM FOR R1. GOVERNMENT PLEADER SMT.T.B.REMANI FOR R2, R3 & R5. SMT.I.SHEELA DEVI FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON 23/07/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = Writ Appeal No.116 of 2006. = = = = = = = = = = = = = Dated this the 23rd day of July, 2010. J U D G M E N T Gopinathan, J. The 4th respondent in WP(C).No.15828/2005 assails the judgment of the learned single Judge dated 5-11-2005. The first respondent herein is the petitioner in WP(C). The father of the first respondent, late Sivasankara Pillai was working as an Upper Primary School Assistant in an aided school of which the 4th respondent is the Manager. While so, on 21-10- 1985 Sivasankara Pillai died in harness. The first respondent was then aged 11 years. He attained majority on 20-5- 1992. On 19-8-1992, the first respondent filed an application, copy of which is marked as Ext.R4(d) seeking employment on compassionate grounds. On 19-8-1997, the first respondent sent Ext.P2 reminder letter to the 4th respondent. On 18-9- WA.No.116/2006. -: 2 :- 2001 a leave vacancy of Peon arose in the school. In that vacancy, one Ravikumar was appointed. On 17-9-2001, the father of the appellant, who was working as a Full Time Menial in the very same school, died in harness. That vacancy was filled up by appointing one Sundaran Pillai. On 1-8-2002, when a vacancy of Peon arose, Sundaran Pillai was promoted and accommodated in that post. In the post of Full Time Menial which became vacant consequent to the promotion of Sundaran Pillai, the appellant was appointed on compassionate ground. Though, it was a regular vacancy, the appointment was approved only upto 30-4-2003. Yet another vacancy of Peon arose on 9-8-2002. In that post Ravikumar was appointed. 2. The first respondent knowing about the above appointments, by Ext.P3 representation dated 30-12-2002 complained to the 5th respondent, the District Educational Officer, Kottarakkara. The 5th respondent directed the first respondent to approach the 4th respondent, who stated that WA.No.116/2006. -: 3 :- due to an inadvertent omission appointments were given to other persons. Not only he stated so, he wrote to the 5th respondent by Ext.P4 letter dated 3-1-2003 stating that a mistake has been committed by inadvertently appointing the appellant as well as Ravikumar, overlooking the claim of the first respondent. He further requested the 5th respondent to take appropriate action. According to the first respondent, the 5th respondent being a relative of the appellant, didn't take any action. Not only that, the appointment of the appellant was approved denying the rightful claim of the first respondent. Though, the first respondent preferred an appeal before the Deputy Director of Education, Kollam, there was no response. Hence, the first respondent moved a writ petition before this Court and obtained a judgment directing the Deputy Director to dispose the appeal preferred by the first respondent. In the meanwhile, on 12-3-2003 the first respondent was appointed as a clerk in a leave vacancy of one K.Surendran Pillai. But, the 5th respondent didn't approve WA.No.116/2006. -: 4 :- the said appointment. Hence, the first respondent again moved a petition before this Court and obtained a direction to the 5th respondent to approve the appointment of the first respondent. The Deputy director of Education, Kollam in compliance of the direction issued by this Court to dispose the appeal preferred by the first respondent, disposed the appeal by Ext.P5 order holding that the first respondent had to approach the 3rd respondent, the Director of Public Instructions. Accordingly, the first respondent moved the 3rd respondent. By Ext.P6 dated 6-10-2003 the 3rd respondent arrived at a finding that the rightful claim of the first respondent was denied by the 4th respondent and that appointments given to the appellant and Ravikumar were out of order and that they should have been appointed only after appointing the 1st respondent. Therefore, the 3rd respondent, by Ext.P6, directed the 4th respondent to appoint the first respondent with notional seniority with effect from 18-9-2001. As against Ext.P6, the appellant moved the 2nd WA.No.116/2006. -: 5 :- respondent by a revision petition which was disposed by Ext.P7 order whereby the 4th respondent was directed to appoint the first respondent as Full Time Menial and then as Peon as against the respective vacancies and to appoint the appellant as a clerk in the vacancy that arose on 1-3-2004. Before issuing Ext.P7 order, in the vacancy of a clerk that arose on 1-3-2004, the first respondent was appointed by the 4th respondent. But, the appointment was not approved. In this background the first respondent filed the above writ petition assailing Ext.P7. 3. Though the appellant and other respondents didn't dispute the entitlement of the first respondent for an earlier appointment under Rule 51B, the appellant contended that he was appointed earlier as Full Time Menial and then as Peon and in the light of Rule 43 he is entitled to a preferential claim to get appointment as a Clerk in the vacancy to which the first respondent was appointed. 4. The learned single Judge after considering the WA.No.116/2006. -: 6 :- entire facts and circumstances arrived at a finding that there was nothing for the 2nd respondent State to interfere with Ext.P6 order. Consequently, Ext.P7 order was quashed and Ext.P6 order was restored. Assailing that judgment, this appeal was preferred. 5. We heard the learned counsel for the appellant as well as the learned counsel appearing for the first respondent and the Government Pleader Smt.T.B.Remani. 6. It is not disputed that the first respondent is the person rightfully entitled to get appointment before appointing the appellant. At a time when the father of the first respondent died, as we stated earlier, he was only 11 years. Immediately after attaining majority, he preferred Ext.R4(d) application for getting an appointment in a deserving post. Ext.P4 written by the 4th respondent to the 5th respondent would show that in fact, by an inadvertent omission the appointment could not be given to the first respondent and instead the appellant and one Ravikumar WA.No.116/2006. -: 7 :- were appointed to the vacancies that arose while the claim of the first respondent was subsisting. At a time when the father of the appellant who was working as a Full Time Menial died, the appellant was 38 years and he is reported to be married. According to the first respondent, the appellant was not depending upon his father and had other sources for his livelihood. On the other hand, at the time when the father of the first respondent died, he being a minor was fully depending upon his father. Whatever that be, the first respondent is entitled to preferential claim as against the appellant. 4th respondent, in Ext.P4 confessed that he committed a wrong in giving appointment to the appellant before appointing the first respondent. Neither the appellant nor other respondents did dispute that aspect. In case, the first respondent was appointed earlier in his due turn, instead of appointing the appellant, the first respondent would have been entitled to a promotion to the post of clerk by virtue of Rule 43 when it became vacant. The appellant now raises a WA.No.116/2006. -: 8 :- claim under Rule 43 only because of the wrong committed by the 4th respondent. It is taking into account of that aspect, the learned single Judge interfered with Ext.P7 order and restored Ext.P6. It is true that the claim for appointment under Rule 43 has got precedence as against the claim for appointment under Rule 51B. In the peculiar facts and circumstances of the case, the appellant could claim appointment under Rule 43 in preference to the first respondent only because of the wrong committed by the 4th respondent, as we mentioned earlier. In that circumstance, appointing the 1st respondent to the post of clerk instead of promoting the appellant is only undoing the wrong committed by the 4th respondent. The genesis of the claim of the appellant is the out of turn appointment that he got as a result of the wrong committed by the 4th respondent. In case the appellant is ordered to be posted as clerk, it would tantamount to perpetrating the earlier wrong for which we cannot agree. Since the 1st respondent was entitled to get WA.No.116/2006. -: 9 :- employment on compassionate ground in preference to the appellant, 3rd respondent was correct in issuing Ext.P6 order. It is noticing that aspect, the single Judge held that there is no circumstance warranting interference by the 2nd respondent in Ext.P6. The learned single Judge was perfectly justified in allowing the writ petition whereby Ext.P6 is restored. The appeal is devoid of merits. In the result, the appeal fails. Accordingly, it is dismissed. No costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-