IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 WP(C).No. 23618 of 2008(J) -------------------------- PETITIONER(S): --------------- K.SUMATHY AMMA,MANAGER, K.P.M.H.S.S, CHERIYAVELINALLOOR, KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. C.SHERLY, RAJANI NIVAS, THOTTAKKAD-PO, KALLAMBALAM, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.M.RAJAGOPALAN NAIR FOR R2 SRI.G.BIJU FOR R2 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.4.2011 ALONG WITH WPC NO. 11353 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 23618/2008 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ORDER DTD.26.2.2005 P2. COPY OF THE COMMUNICATION DTD.29.7.2008. RESPONDENT(S)'EXHIBITS R2(1). COPY OF THE INTERIM ORDER. R2(2) COPY OF THE FINAL ORDER. R1A. COPY OF THE REPORT OF THE DIRECTOR OF PUBLIC INSTRUCTIONS. R1B COPY OF THE REPORT OF THE DPI DTD.1.12.08. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).Nos.23618/2008 & 11353/2009 ================== Dated this the 1st day of April, 2011 J U D G M E N T The petitioner in W.P.(C). No.23618/2008 is the Manager of the K.P.M. H.S.S, Cheriyavelinalloor in Kollam District. She is challenging Ext.P2 order passed by the Government, directing the petitioner to appoint the 2nd respondent as an L.D.Clerk in the aided high school of the petitioner under Rule 51B of Chapter XIV-A of the KER on the ground that her husband died as a Lab Assistant in the supernumerary post in the higher secondary section of the school. The petitioner has filed the writ petition challenging Ext.P2 on the ground that a dependent of a Lab Assistant in the higher secondary section, that too, in a supernumerary post, cannot claim Rule 51B benefit in the high school insofar as, as per the decision of this Court, Rule 51B of Chapter XIV-A of the KER would not be applicable to the higher secondary section. The petitioner has got a further contention that Ext.P2 order was passed by the Government without hearing the petitioner, against whom, the order was passed. 2. W.P.(C). No.11353/2009 is filed by a person, who has been appointed as a Full Time Menial originally in the same school and later promoted as a Clerk in recognition of his right under Rule 43 of Chapter XIV-A of the KER. According to the petitioner, in that writ petition, the dispute between the manager, who is the 3rd respondent, w.p.c.23618/08 & cc 2 the 2nd respondent in the other writ petition, and the Rule 51B claimant cannot affect the right of the petitioner in that writ petition, insofar as it is settled law that a claim under Rule 43 of Chapter XIV-A of the KER would supersede a claim under Rule 51B, even assuming that the 4th respondent is entitled to such a claim. The petitioner's grievance in the writ petition is that in view of the dispute between the Manager and the 4th respondent, the petitioner's appointment by promotion as a Clerk is not being approved and the salary due to the petitioner is not paid to him. 3. I have heard the parties. 4. As far as W.P.(C).No.23618/2008 is concerned, it is not disputed before me that before passing Ext.P2 order, the petitioner, the Manager of the school, was not afforded an opportunity of being heard. Ext.P2 order is, therefore, violative of the principles of natural justice. On that ground, the same is liable to be quashed. I do so. However, it would be open to the Government to pass fresh orders after hearing all parties concerned, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. 5. The contentions of the parties regarding the right of the 2nd respondent in that writ petition to claim benefit under Rule 51B are left w.p.c.23618/08 & cc 3 open to be re-agitated before the Government in the proceedings pending. I make it clear that I have not considered that question on merits, since I have accepted the technical contention regarding violation of principles of natural justice. 6. As far as W.P.(C).No.11353/2009 is concerned, I am of opinion that it need not be clubbed with the claim of the 4th respondent in the other writ petition, insofar as even assuming that the 4th respondent has a right under rule 51B, it would not override the claim of the petitioner under Rule 43 of Chapter XIV-A of the KER. As such, I am of opinion that the dispute between the manager and the Rule 51B claimant should not stand in the way of the approval of the petitioner's appointment and disbursal of salary to the petitioner on the ground of the Rule 51B claim. Accordingly, W.P.(C).No.11353/2009 is disposed of with a direction to the 2nd respondent to consider the question of approval of the appointment of the petitioner as a Clerk of the 3rd respondent's school as per Ext.P1 and pass orders on the same, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment, without reference to the dispute between the Manager and the 4th respondent in respect of Rule 51B claim of the 4th respondent. If the 2nd respondent approves the appointment of the petitioner, arrears of salary due to the petitioner in w.p.c.23618/08 & cc 4 the post of Clerk shall be disbursed to the petitioner, within one month therefrom. The petitioners shall produce certified copies of this judgment before the Government and the 2nd respondent for compliance. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge