IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 19614 of 2003(I) -------------------------------------- PETITIONER(S): ----------------------- SHIJULAL B.R., PEON, MUTHARAMMAN COIL HIGH SCHOOL, KOTTUKALKONAM, KATTACHALKUZHI P.O., THIRUVANANTHAPURAM, RESIDING AT SHIBU BHAVAN, KOTTUKALKONAM, KATTACHALKUZHI P.O., BALARAMAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.MURALI PURUSHOTHAMAN, SRI.P.M.BENZIR. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA. 4. THE MANAGER, MUTHARAMMAN COIL HIGH SCHOOL, KOTTUKALKONAM, KATTACHAL KUZHI P.O., BALARAMAPURAM, THIRUVANANTHAPURAM. *ADDL. R5 IMPLEADED ADDL.R5: MANOHARAN, S/O.BALAKRISHNAN NADAR, VATTAVILA PUTHEN VEEDU, KOTTUKALKONAM, KATTACHALKUZHI P.O. * IS IMPLEADED AS ADDL. 5TH RESPONDENT AS PER ORDER DATED 27/05/2010 IN I.A.13644/2008. R1 TO R3 BY GOVT. PLEADER MR.P.M. MANOJ. R4 BY ADV. SRI.G.S.REGHUNATH. ADDL. R5 BY ADV. SRI.R.T.PRADEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19614 of 2003(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF APPOINTMENT NO.40/97 DATED 30/06/1997 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE DECLARATION DATED 01/10/1997 SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P3: COPY OF THE ORDER OF APPOINTMENT NO.50/97 DATED 30/09/1997 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE ORDER NO.B4-4614/98/L.DIS. DATED 27/11/1998 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P5: COPY OF THE ORDER NO.B5/43499/98/K.DIS. DATED 09/07/1999 OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT. EXT.P6: COPY OF THE ORDER NO.ET5/65901/99/DPI/K.DIS. DATED 12/08/2000 OF THE DPI ISSUED TO 4TH RESPONDENT. EXT.P7: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT NO.51434/N2/2000/G.EDN. DATED 12/10/2000 ISSUED TO DPI. EXT.P8: COPY OF THE ORDER NO.ET5/78937/2000/DPI/D. DIS DATED 27/10/2000 OF THE DPI. EXT.P9: COPY OF THE LETTER DATED 01/11/2000 SUBMITTED BY THE ONE K.J. SULATHA TO THE DPI. EXT.P10: COPY OF THE ORDER NO.ET5/29667/2000/DPI/D. DIS DATED 14/03/2001 OF THE DPI. EXT.P11: COPY OF THE LETTER NO.B4-8486/2000 DATED 01/06/2001 OF THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P12: COPY OF THE JUDGMENT DATED 22/07/2003 IN O.P. NO. 21132/2001 PASSED BY THIS HONOURABLE COURT. EXT.P13: COPY OF THE ORDER G.O.(RT)NO.914/2003 G.EDN. DATED 06/03/2003 OF THE 1ST RESPONDENT. EXT.P14: COPY OF THE G.O.(RT)NO.1400/2003/G.EDN. DATED 05/04/2003 OF THE 1ST RESPONDENT. EXT.P15: COPY OF THE PETITION DATED 16/06/2003 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P16: COPY OF THE STATUTORY RELINQUISHMENT LETTER DATED 25/06/1997 SUBMITTED BY SMT.P. SAROJINI. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE ORDER NO.ACD.B5/2047/HSE/2004 DATED 11/10/2006. ........2/- WP(C).No. 19614 of 2003(I) EXT.R4(b): COPY OF THE JUDGMENT IN O.S. NO.3/1989 DATED 13/06/2000 OF THE IIND ADDL. DISTRICT COURT, TRIVANDRUM. EXT.R4(c): COPY OF THE JUDGMENT IN W.A. NO. 1390/1993 DATED 04/03/1994 OF THIS HONOURABLE COURT. EXT.R4(d): COPY OF THE APPEAL MEMO FILED BY K.J. SULATHA BEFORE THE GOVT. DATED 30/03/2001. EXT.R4(e): COPY OF THE MEMORANDUM OF ORIGINAL PETITION NO.21332/2001 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN, J. ----------------------------------------- W.P.(C) No.19614 of 2003 ----------------------------------------- Dated this the 27th day of May, 2010 JUDGMENT The petitioner was appointed as Peon by the fourth respondent Manager in the Mutharamman Coil High School (hereinafter referred to as the school for short) in a short term leave vacancy that arose when the incumbent Sri.G.Kuttappan proceeded on leave with effect from 30.6.1997. The fourth respondent forwarded the proposal for approval of appointment of the petitioner to the District Educational Officer, Neyyattinkara. The District Educational Officer returned the proposal on the short ground that the Manager had not submitted a declaration regarding rule 43 and rule 51-A claimants. Later, the Manager resubmitted the proposal along with Ext.P2 declaration that there is no claimant either under rule 43 or under rule 51-A for appointment to the category of Peon. While matters stood thus, a regular vacancy of Peon arose in the School on 30-9-1997 when Sri.G.Kuttappan, who was away on leave, voluntarily retired from service. In that vacancy the Manager appointed the petitioner as Peon on a regular basis. 2. It appears there was a suit, O.S.No.3 of 1989 on the file of the Court of the II Additional District Judge, Thiruvananthapuram wherein the issue regarding the management of the school was in W.P.(C) No.19614 of 2003 -:2:- dispute. In that suit an interim order had been passed restraining the Manager then in office, from effecting appointments of teaching and non-teaching staff. Later the interim order was clarified and teachers were permitted to be appointed. The court below did not however, permit appointment of non-teaching staff. On that ground, the District Educational Officer declined to approve the appointment of the petitioner as Peon with effect from 30-6-1997 and issued Ext.P4 communication dated 27-11-1998 rejecting the approval. 3. Aggrieved by Ext.P4 rejecting the approval of the petitioner's appointment with effect from 30.6.1997, the Manager filed an appeal before the Deputy Director of Education, Thiruvananthapuram. By Ext.P5 order passed on 9-7-1999 the said appeal was rejected. The Manager thereupon moved the Director of Public Instruction in revision. The revision petition was also rejected on the ground that the interim order passed by the civil court did not permit the Manager to appoint non-teaching staff. The petitioner thereupon moved the Government in revision. While the revision petition was pending, O.S.No.3 of 1989 was dismissed by judgment delivered on 13-6-2000. The petitioner thereupon produced a certified copy of the judgment before the Government. Taking note of the change in circumstances, the Government sent Ext.P7 letter dated 12-10-2000 to the Director of Public Instruction directing him to reopen Ext.P6 and pass revised W.P.(C) No.19614 of 2003 -:3:- orders in the matter. As directed by the Government in Ext.P7 letter, the Director of Public Instruction considered the revision petition filed by the petitioner from Exts.P4 and P5 orders and passed Ext.P8 order dated 27.10.2000 whereby the District Educational Officer was directed to approve the petitioner's appointment as Peon with effect from 30-6-1997, if it is otherwise in order. 4. In the meanwhile another vacancy of Peon had arisen in the school on 1-6-1998. In that vacancy, the Manager appointed the additional 5th respondent as Peon. The said appointment was not approved by the District Educational Officer for the reason that there is a rule 43 claimant waiting promotion as Peon. The said order was unsuccessfully challenged in appeal before the Deputy Director of Education. The additional 5th respondent thereupon filed a revision petition before the Director of Public Instruction. While that revision petition was pending, Smt.K.J.Sulatha, who is none other than the daughter of the Manager of the school, filed a representation stating that she is a rule 51-A claimant eligible for appointment as Peon. The Director of Public Instruction considered the said representation along with the revision petition filed by the 5th respondent and passed Ext.P10 order wherein, besides rejecting the claim put forward by Smt.K.J.Sulatha, daughter of the Manager of the School, the Director of Public Instruction also held that there was a discrepancy in the W.P.(C) No.19614 of 2003 -:4:- appointment of the petitioner for the reason that the claim of Smt.T.Sarojini, who was working as Full Time Menial in the School, for promotion under rule 43 of Chapter XIV-A of the Kerala Education Rules as Peon, was withheld from the knowledge of the authorities when the proposals to approve the appointment of the petitioner and the 5th respondent were forwarded to the District Educational Officer. In view of Ext.P10, the District Educational Officer declined to approve the petitioner's appointment and communicated the said decision to the Manager by Ext.P11 letter dated 1-6-2001. Aggrieved by Exts.P10 and P11 the petitioner filed O.P.No.21132 of 2001 in this Court. 5. It appears that aggrieved by Ext.P10 order passed by the Director of Public Instruction Smt.K.J.Sulatha, who raised the rule 51-A claim, had moved the Government in revision. Taking note of the said fact this Court disposed of O.P.No.21132 of 2001 with the observation that the petitioner should move the Government instead of straight away challenging Exts.P10 and P11 in this Court. The petitioner accordingly filed a revision petition before the Government challenging Ext.P10 to the extent it operated against him. The Government considered the revision petition filed by the petitioner and the revision petition filed by Smt.K.J.Sulatha and passed Ext.P13 order dated 6.3.2003. Though the Government rejected the claim of Smt.K.J.Sulatha, the petitioner's claim was also rejected on the ground W.P.(C) No.19614 of 2003 -:5:- that the relinquishment stated to have been submitted by Smt.T.Sarojini, Full Time Menial, has not been proved. However, taking note of the fact that Smt.T.Sarojini had retired from service on 29-2-2000 the Government directed that the petitioner's appointment shall be approved with effect from the next date, namely 1-3-2000. 6. In this writ petition the petitioner challenges Ext.P13 and seeks a direction to respondents 1 to 3 to approve the petitioner's appointment with effect from 30-6-1997. It appears that before this writ petition was filed, the 5th respondent, who was also aggrieved by Ext.P10, had filed a separate revision petition before the Government. By Ext.P14 order passed on 5-4-2003, that revision petition was disposed of in the light of Ext.P13 Government order with a direction to the District Educational Officer to approve his appointment also with effect from a date subsequent to 1.3.2000, the date with effect from which the petitioner's appointment was directed to be approved. However, in Ext.P14 contrary to the stand taken in Ext.P13, the Government found that Smt.T.Sarojini, who had retired from service on 29-2-2000, had in fact submitted a letter of relinquishment and that it was suppressed by the District Educational Officer. The petitioner contends that in view of the letter of relinquishment, a copy of which is produced as Ext.P16, the Director of Public Instruction and the Government erred in directing that his appointment need be W.P.(C) No.19614 of 2003 -:6:- approved only with effect from 1.3.2000. 7. I heard Sri.Deepu Lal Mohan, learned counsel who appeared for the petitioner, Sri.P.N.Manoj, learned Government Pleader appearing for respondents 1 to 3, Sri.G.S.Reghunath, learned counsel appearing for the 4th respondent and Sri.R.T.Pradeep, learned counsel appeared for the 5th respondent. I have also considered the pleadings and the materials on record. The main dispute in this writ petition is whether as claimed by the petitioner and the 5th respondent and also by the 4th respondent Manager, Smt.T.Sarojini, who is not a party to this writ petition, had in fact submitted a letter of relinquishment way back on 25-6-1997. Smt.T.Sarojini was working as Full Time Menial in the school. She retired from service on 29-2-2000. Though while disposing of the revision petition filed by the petitioner by Ext.P13 order, the Government held that the letter of relinquishment said to have been submitted by Smt.T.Sarojini has not been proved and therefore, there was no such relinquishment, when the Government decided the 5th respondent's revision petition, the Government have held in Ext.P14 in categorical terms that such a relinquishment letter was available with the District Educational Officer and it was suppressed. It was also observed that there was some foul play in the District Educational Officer's office and that the letter of relinquishment was kept in cold storage with a view to help the Manager. A reading of W.P.(C) No.19614 of 2003 -:7:- Ext.P13 indicates that the Government did not direct approval of the petitioner's appointment with effect from 30-6-1997 only for the reason that the relinquishment stated to have been submitted by Smt.T.Sarojini has not been proved. Ext.P13 is dated 6-3-2003. However, in Ext.P14 dated 5-4-2003 passed exactly one month thereafter, the Government have come to a different finding and held that there was in fact a letter of relinquishment. These facts are not in dispute. In the light of the finding arrived at by the Government in Ext.P14 that Smt.T.Sarojini had in fact submitted a letter of relinquishment and as she had not objected to the appointment of either the petitioner or the 5th respondent, I am of the opinion that the direction issued by the Government in Ext.P13 requires to be suitably modified. I accordingly allow the original petition, quash Ext.P13 to the extent it directs the District Educational Officer to approve the petitioner's appointment as Peon only with effect from 1-3-2000 and direct the District Educational Officer to approve the petitioner's appointment with effect from 30-6-1997, if it is otherwise in order. Necessary orders in that regard shall be issued within two months from the date on which the petitioner produces a certified copy of this judgment before the District Educational Officer. Needless to say, in the event of the petitioner's appointment being approved with effect W.P.(C) No.19614 of 2003 -:8:- from 30-6-1997 the respondents shall also take expeditious steps to draw and disburse salary and allowances to the petitioner at applicable rates. It will be open to the 5th respondent to move the Government seeking modification of Ext.P14 order on the strength of this judgment, subject however, to the condition that he shall take his rank and seniority below the petitioner. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P.(C) No.19614 of 2003 ---------------------------- JUDGMENT 27th May, 2010