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 20TH AUGUST 2010 / 29TH SRAVANA 1932 WA.No. 2791 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.21384/2009 Dated 12/11/2009 .................... APPELLANT(S): PETITIONER:- ----------------------------------------- THE MANAGER, KARSHAKA SAMAJAM UPPER PRIMARY SCHOOLS(KSUPS), THOTTIPAL P.O., THOTTIPAL, THRISSUR DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S):RESPONDENTS:- ---------------------------------------------- 1. SMT.P.A.BINDU, PALLATH HOUSE, THOTTIPAL P.O., PARAPPUKARA VIA., IRINJALAKUDA, THRISSUR DISTRICT. 2. THE ASSISTANT EDUCATIONAL OFFICER, IRINJALAKUDA. 3. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA. 4. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (K) DEPARTMENT, THIRUVANANTHAPURAM. 5. M.K.SUNAJA, UPPER PRIMARY SCHOOL ASSISTANT (UPSA), KARSHAKA SAMAJAM UPPER PRIMARY SCHOOL, THOTTIPAL, IRINJALAKUDA. 6. V.R.SREEREKHA, UPPER PRIMARY SCHOOL ASSISTANT(UPSA), KARSHAKA SAMAJAM UPPER PRIMARY SCHOOL, THOTTIPAL, IRINJALAKUDA, THRISSUR DISTRICT. (.................2) -: 2 :- 7. REKHA M.C., LOWER PRIMARY SCHOOL ASSISTANT(UPSA), KARSHAKA SAMAJAM PRIMARY SCHOOL, THOTTIPAL, IRINJALAKUDA, THRISSUR DISTRICT. SRI.P.K.MADHUSOODANAN FOR R1 GOVT. PLEADER SMT.T.B.REMANI FOR R2 TO4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: "CR" C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = WA.No.2791 of 2009. = = = = = = = = = = = Dated this the 20th day of August, 2010. J U D G M E N T Gopinathan, J. Late T.K.Krishnaveni, the mother of the first respondent was working as a Lower Primary School Assistant in the school run by the appellant. On 4.9.1979 she died in harness. The first respondent who was born on 6.12.1973 was below six years on the date of death of her mother. On attaining majority she submitted a representation on 31.12.1991 along with application dated 12.12.1991 in the prescribed form seeking employment under Rule 51B of Chapter XIV-A of the Kerala Education Rules. But, there was no response. On 17.10.2003 she made another application. That also didn’t yield any result. WA.No.2791 of 2009. -: 2 :- Thereupon Ext.P1 representation was made on 9.9.2005. Thereafter a reminder was sent on 29.5.2006. The appellant rejected Ext.P1 by Ext.P2 letter dated 2.6.2006. The first respondent took up the matter with the 2nd respondent, the Assistant Educational Officer. The 2nd respondent by Ext.P3 dated 31.5.2007 rejected the representation. On appeal, the 3rd respondent District Educational Officer by Ext.P4 order dated 22.10.2007 allowed the claim made by the first respondent. But, there was no response from the side of the appellant. Being aggrieved, the first respondent moved this Court by filing WP(C)No.11172/2008 for enforcing Ext.P4 which was produced as Ext.P10 in that case. A learned single Judge by judgment dated 19.12.2008, copy of which was produced as Ext.P5 directed the appellant to appoint the first respondent in pursuance of Ext.P4 order as expeditiously as possible and at any rate within 8 weeks from the date of production of a copy of the judgment. As against Ext.P4, the appellant had preferred a revision before the 4th respondent. WA.No.2791 of 2009. -: 3 :- Thereupon, the appellant moved a petition for review of Ext.P5 judgment. While disposing the review petition, by Ext.R1(a) order dated 2.2.2009, the appellant was directed to offer appointment in pursuance of Ext.P4 order. In that order there is a rider that the appointment shall be subject to the out come of the revision petition that was pending against Ext.P4 order. By Ext.P7 order dated 27.6.2009 the revision petition filed by the appellant was dismissed. Assailing Ext.P7 order the appellant moved WP(C) No.21384/2009. By the impugned judgment dated 12.11.2009, the learned single Judge dismissed the writ petition. However, the appellant didn’t care to appoint the first respondent in pursuance to Ext.P5 judgment. Whereas certain others were appointed. The first respondent, therefore filed petition for contempt as Contempt Case (C) No.403/2009. In contempt proceedings the appellant submitted that the first respondent would be appointed within three days. Recording that submission, by Ext.R1(b) judgment dated 10.12.2009 produced by the first WA.No.2791 of 2009. -: 4 :- respondent along with IA.No.1295/2009 closed the contempt petition with liberty to the first respondent to reopen the same if necessary. After submitting before the learned single Judge in Ext.R1(b) proceedings that the first respondent would be given appointment within three days, this Writ Appeal was filed. 2. The learned counsel for the first respondent entered appearance and took notice. The learned Senior counsel for the appellant, counsel for the first respondent and the Government Pleader appearing for respondents 2 to 4 were heard. 3. Having heard either side, we find that in the light of Ext.P5, this Writ Appeal is an abuse of process. The 3rd respondent by Ext.P4 in exercise of appellate powers vested under Rule 8 directed the appellant to appoint the first respondent under Rule 51B. Ext.P4 order withstood the judicial scrutiny by this Court as evidenced by Ext.P5 judgment. Despite that, the appellant preferred the revision before the Government. By Ext.P7 order, in revision also, WA.No.2791 of 2009. -: 5 :- Ext.P4 was confirmed. Now, the contention is that revision is a statutory remedy available to the appellant under the Kerala Education Rules and that when the order in revision went against the appellant he is entitled to assail the same before this Court under Article 226 of the Constitution of India. 4. One of the arguments advanced against Exts.P4 and P7 is that there is inordinate delay on the side of the first respondent in preferring claim for appointment under Rule 51B. According to the learned counsel, such claim shall be filed within two years from the date of entitlement to seek employment under Rule 51B and in this case the entitlement for employment arose on 4.9.1979 when the mother of the first respondent died and that the application for appointment was first time launched only on 9.9.2005 and therefore there is inordinate delay. 5. We find that in raising such contention, there is total lack of bonafides on the side of the appellant. Going by Ext.P5, as mentioned earlier, that writ petition was WA.No.2791 of 2009. -: 6 :- moved by the first respondent for enforcing Ext.P4 order which was produced as Ext.P10 in that case. The appellant, who was the 3rd respondent in Ext.P5, didn’t file any counter-affidavit. The party respondents, who got appointment ignoring the claim of the first respondent, also didn’t file any counter-affidavit. Whereas the official respondents in their counter-affidavit, copy of which was produced as Ext.R1(c) submitted that the first respondent had submitted her claim in time as evidenced by Exts.P2 and P4 produced in that case. Ext.P5 would show that on attaining majority, the first respondent submitted Ext.P2 application marked in Ext.P5 dated 31.12.1991 to the appellant requesting to give her appointment under Rule 51B. That application was made soon after the first respondent attained majority. Subsequently, the first respondent passed Teachers Training Course. Thereupon she filed Ext.P4 representation marked in Ext.P5 dated 17.10.2003, again requesting to accommodate her in the following arising vacancy. But there was no response. WA.No.2791 of 2009. -: 7 :- Therefore, the first respondent preferred Ext.P1 representation dated 9.9.2005 and then a reminder on 29.5.2006. It is thereafter the appellant rejected the claim of the first respondent stating that the claim is belated. Since the first application dated 31.12.1991 was made soon after the first respondent attaining majority, we have to hold that the application is in time. It is taking into account of all these facts and circumstances, the learned single Judge by Ext.P5 judgment directed the appellant to give appointment to the first respondent in pursuance to Ext.P4 order. So, the contention of the appellant that the application made by the first respondent is belated and filed out of time is devoid of merit. The learned Sr.Counsel Sri.N.N.Sugunapalan submitted that there was no application dated 31.12.1991. In the light of Ext.P5, we don't propose to examine the correctness of that argument, because Ext.P5 would show that in that proceedings the first respondent had produced the copy of application as Ext.P2 which was not objected by the appellant. The WA.No.2791 of 2009. -: 8 :- second application Ext.P3 marked in Ext.P5 is dated 17.10.2003. That is also within two years of the first respondent attaining majority. That aspect was also taken into account in Ext.P5 judgment. Since Ext.P5 judgment had become final, we find it totally unwarranted to examine the argument that the application of the first respondent is belated. If the plea now urged is genuine and bonafide, it should and ought to have been raised in Ext.P5 proceedings. Since such plea was not urged in Ext.P5, the appellant is now barred by the principle of constructive resjudicata in raising such contention in the second writ petition. So, the appellant is not entitled to urge the contention in a second writ proceedings. However, the learned single Judge had considered all the arguments advanced by the appellant, though not relevant in the light of Ext.P5 and dismissed the writ petition. We find no merits in the writ appeal. 6. Once Ext.P4 order issued by the 3rd respondent in exercise of the appellate powers withstood the judicial WA.No.2791 of 2009. -: 9 :- scrutiny of this Court by Ext.P5 judgment, the attempt of the appellant to pursue a revision against Ext.P4, though statute provides, is no doubt, an abuse of process. The State Government cannot sit over in revision against an order that with stood judicial scrutiny of this Court in proceedings under Article 226 of the Constitution of India. Whatever it may be, by Ext.P7, in revision also Ext.P4 order was confirmed. Thereupon, the appellant would not get another right to move this Court to assail Ext.P4 order or Ext.P7 order. The learned Senior Counsel appearing for the appellant submitted that this Court by Ext.R1(a) order permitted the appellant to pursue the revision proceedings. According to the learned counsel, Ext.P7 being an order passed under Rule 92, the appellant is entitled to assail the same by canvassing the writ jurisdiction of this Court. In the peculiar facts and circumstances of the case, such a permission given to the appellant to pursue the revision would not enure to the benefit of the appellant to entitle him to move another writ petition assailing the order in WA.No.2791 of 2009. -: 10 :- revision because it is basing upon Ext.P4, the first respondent sought the relief in ExtP5. If the appellants had any good ground to assail Ext.P4, that should have been raised in Ext.P5 writ proceedings. Not only any objection was not raised, but also the appellant didn’t care to challenge Ext.P5 judgment, though appeal is permissible. It is very pertinent to note that Ext.R1(b) judgment dated 10.12.2009 in Contempt Case (C) No.403/2009 produced by the first respondent along with IA.No.1295/2009 would show that on behalf of the appellant, the Sr.Counsel submitted that in implementing Ext.P5 judgment, the first respondent would be appointed within three days. It is recording that submission the contempt proceedings for non-implementation of Ext.P5 was closed. Without caring to comply with the undertaking given on behalf of the appellant before this Court, he had been indirectly assailing Ext.P5 in the writ petition on hand. So long as Ext.P5 is in force, any attack against Ext.P4 or Ext.P7 between the parties in another writ proceeding is not only devoid of WA.No.2791 of 2009. -: 11 :- merits but also abuse of process of law. In the above circumstance, we find that the appeal is devoid of merits. Accordingly it is dismissed. Though this is a fit case to award heavy costs, taking into account of the relationship between the appellant and the first respondent, we refrain. The appellant shall implement Ext.P4 order as ordered by this Court in Ext.P5 judgment with notional seniority. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-