IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 2555 of 2004(D) ------------------------- PETITIONER(S): --------------- A.P.NIMMY, D/O.A.K.PARAMU, AGED 27 YEARS, AYYAPPATHU HOUSE, NADATHARA 600 751, THRISSUR DISTRICT. BY ADV. SRI.V.A.MUHAMMED RESPONDENT(S): --------------- 1. THE STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. 3. THE MANAGER, A.K.M.HIGHER SECONDARY SCHOOL, POOCHATTY, P.O. ERAVIMANGALAM, THRISSUR DISTRICT. ADDL.R4: SHRI T.G. GOPAKUMAR, CLERK (NOT APPROVED), AKM HIGHER SECONDARY SCHOOL, POOCHATTY, P.O. ERAVIMANGALAM, THRISSUR DT. R5: A.N. SUDARSAN, FULL TIME MENIAL, DO. DO. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R3 GOVERNMENT PLEADER FOR R1, 2 SHRI K. RAMESH (ADDL. R4 & R5 IMPLEADED AS PER ORDER IN IA 4564/09 DT.2.4.09) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, ALONG WITH WPC NO. 3348 OF 2004 WPC NO. 26231 OF 2008 THE COURT ON 24.8.2009 DELIVERED THE FOLLOWING: APPENDIX IN WPC 2535/04 EXT.P1-TRUE COPY OF ORDER DATED 6.1.2003 EXT.P2-TRUE COPY F GO DATED 1.12.2003 EXT.P3- TRUE COPY OF GO DATED 28.1.2008 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 2555/04-D, 3348/04-W 26231/08-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2009. JUDGMENT These three writ petitions concern a common issue regarding the claim for appointment under Rule 51B of Chapter XIV-A K.E.R. of the petitioner in W.P.(C) No.2555/2004. W.P.(C) No.3348/2004 is filed by the Manager of the school and W.P.(C) No.26231/2008 is filed by a Peon promoted as a Clerk of the school who is seeking approval of his appointment. 2. In W.P.(C) No.3348/2004 the Manager is challenging the orders passed by the educational authorities as confirmed by the Government in Ext.P13, whereby he is directed to appoint the third respondent in the vacancy which arose on 1.6.2001 as Full Time Menial. In W.P.(C) No.2555/2004 the claimant is seeking implementation of the said order. She is also challenging a later order passed by the Government as per Ext.P3, whereby the appointment of Shri T.G. Gopakumar ( petitioner in W.P.(C) No.26231/2008) and Shri A.V. Sudarsanan who is the 4th respondent in W.P.(C) No.3348/2004, as Full Time Menial are directed to wpc 2555/04, 3348/04 & 26231/08 2 be approved with effect from 3.8.2002 and 5.6.2001 respectively. 3. For convenience, I will refer to the facts stated in W.P.(C) No.3348/2004. 4. The claim raised by the third respondent for appointment is on the ground that her mother Smt. Vasumathi died while in service on 7.2.1994. Ext.P1 is the application dated 17.4.1997 submitted by the third respondent seeking appointment either as Clerk or Attender in the school. It is a case of the Manager that there was no post of Clerk or Attender vacant at that time. Further, her right can only be a post to be filled up by direct recruitment only. A vacancy of Peon arose on 1.6.2001 due to retirement of the incumbent. Being a promotion post of Full Time Menials, the vacancy was filled up by promoting one Mr. Madhavan under Rule 43 of Chapter XIV-A K.E.R. While so, the third respondent submitted a fresh application dated 13.5.2002 along with a letter which are produced as Exts.P2 and P2(a), seeking appointment as NTS ( Non-teaching Staff). A subsequent vacancy arose on 1.7.2002 due to the retirement of a Peon and that vacancy was filled up by promoting a Full Time Menial. By Ext.P3, the Manager offered appointment to the third respondent as Full Time Menial. She sent a reply Ext.P4 stating that she wants the NTS post firstly vacant after her wpc 2555/04, 3348/04 & 26231/08 3 application dated 17.4.1997. The Manager thereafter issued Ext.P5 directing the third respondent to join duty as Full Time Menial within seven days along with all documents and on failure of it, it was informed that it will be deemed that she has relinquished her claim. Ext.P6 is the reply given by the third respondent stating that she is ready to accept the offer as NTS from 1.7.2002 subject to the condition that the last year arising vacancy of Peon may be given to her. Again the Manager directed her as per Ext.P7 that she may report for duty within three days of the receipt of notice as Full Time Menial, failing which it will be treated that the claim is forfeited. There was no response from her and accordingly the vacancy was filled up by appointing Shri T.G. Gopakumar as Full Time Menial on 5.8.2002. 5. Pursuant to Ext.P9 judgment rendered by this court in O.P.No.26024/2002, the Manager was issued a notice of hearing by the District Educational Officer. The Manager filed a detailed written statement as per Ext.P10. But by Ext.P11, the District Educational Officer directed the Manager to appoint the third respondent in the vacancy which arose on 1.6.2001 and the approval of appointment of the 4th respondent Shri A.V. Sudarsanan was rejected. This was challenged in a revision petition wpc 2555/04, 3348/04 & 26231/08 4 Ext.P12 and Ext.P13 is the order passed by the Government. 6. In W.P.(C) No.2555/2004, apart from seeking implementation of the order passed by the Government to appoint her as Full Time Menial in the first vacancy, the third respondent is challenging Ext.P3 order passed by the Government . It is challenged mainly on the ground that in the light of the earlier order passed by the Government, Ext.P3 cannot be sustained. She was not heard before passing the order and no notice was issued to her. Going by the said order, the Government directed approval of appointment of Shri T.G. Gopakumar and Shri A.V. Sudarsanan in the respective vacancies. According to the learned counsel for the petitioner, the same is contrary to the order passed by the Government in her favour, which recognised her right for appointment as Full Time Menial from 1.6.2001. 7. The petitioner in W.P.(C) No.26231/2008 was appointed as Full Time Menial on 5.8.2002 which was approved by the District Educational Officer as per Ext.P1 order produced therein. He was promoted as a Peon as per Ext.P2 and the approval was declined by the District Educational Officer as per Ex.P3. When a vacancy of Clerk arose, he was promoted as such as per Ext.P4 and the approval is declined as per Ext.P5. The rejection is on the ground that the other writ petitions are pending. The petitioner wpc 2555/04, 3348/04 & 26231/08 5 therein is also disputing the claim of the Rule 51B claimant for appointment, contending that she has forfeited her right to seek appointment as she refused to join duty in spite of the order passed by the Manager. 8. Shri K.R.B. Kaimal, learned Senior Counsel appearing for the Manager submitted that Rule 51B claim does not survive at all in the light of the fact that the third respondent did not join duty pursuant to the order of appointment issued as per Ext.P3 which is followed by Exts.P5 and P7. It is submitted that in the first application Ext.P1, she had shown her preference for appointment as Clerk or Attender and no vacancy of Clerk and Attender arose at that point of time. Only a vacancy of Peon arose on 1.6.2001 which had to be filled up by a Rule 43 claimant. Since the third respondent did not seek any appointment as Full Time Menial, the 4th respondent was appointed. When the third respondent submitted a proper application, she was offered the appointment. But having failed to join duty it would be deemed that she had forfeited her claim. It is pointed out that in spite of the fact that in Ext.P10 written statement these contentions were raised before the District Educational Officer, they have not been considered while passing Ext.P11. The Government also did not consider these aspects while passing Ext.P13. It is therefore submitted that both the wpc 2555/04, 3348/04 & 26231/08 6 orders are liable to be quashed. The appointment of Shri Gopakumar and Shri A.V. Sudarsanan have been held proper. Their promotions are also made properly and therefore approval is liable to be granted. 9. In answer to the contentions, learned counsel appearing for the third respondent submitted that the third respondent is having right to get appointment in the first arising vacancy. It is the submission of the learned counsel that merely because she had given a qualified acceptance in her reply to the Manager, that will not result in forfeiture of her right for appointment in the first vacancy as Full Time Menial. True that she had shown the post as Clerk and Attender in the first application, but it is for the Manager to indicate the nature of the vacancy to the claimant. 10. The above facts show that the relevant question is whether the right claimed by the third respondent stands forfeited on her refusal to join duty pursuant to Exts.P3 and P5 orders of appointment issued by the Manager. There is dispute between the parties whether the third respondent had at any point of time indicated any preference for appointment as Full Time Menial. The order Ext.P11 is passed by the District Educational Officer pursuant to the judgment in O.P.No.26024/2002. The pleadings wpc 2555/04, 3348/04 & 26231/08 7 contained in the said original petition show that the challenge was against Exts.P7 and P9 therein (Exts.P5 and P7 herein). The claim raised by the third respondent in the said writ petition is for appointment as Peon in the school in the vacancy which arose on 1.6.2001. One of the reliefs sought for in the writ petition was for a direction to the first respondent to appoint the petitioner as Peon in his school in the vacancy which arose on 1.6.2001 with retrospective effect from 1.6.2001. This court, at the stage of admission disposed of the writ petition, directing the educational authorities to consider and pass orders on the representation Ext.P9 produced along with C.M.P.No.46789/2002. The said representation was considered by the District Educational Officer. In the body of the representation also it is stated by the third respondent that she was entitled for appointment in the vacancy of Peon which arose on 1.6.2001. Therefore, apparently she had been seeking for appointment as a Peon in the vacancy which arose on 1.6.2001. The fourth respondent was promoted in that vacancy since he is a claimant under Rule 43 of Chapter XIV-A K.E.R. These aspects were not considered by the District Educational Officer while passing Ext.P11 order, obviously. In Ext.P13 order passed by the Government also, these aspects have not been considered. As noted already, the question is whether the wpc 2555/04, 3348/04 & 26231/08 8 argument of the Manager that she has forfeited her claim for appointment in the school in the light of the refusal to join duty as Full Time Menial pursuant to Exts.P5 and P7 has been addressed by the Government or not. It was never considered. In that view of the matter, the issue will have to be reconsidered by the Government and therefore Ext.P13 in W.P.(C) No.3348/2004 is quashed. 11. With regard to W.P.(C) Nos.2555/2004 and 26231/2008, it is evident from Ext.P7 order produced in W.P.(C) No.26231/2008 that the Government directed to approve the appointments of the petitioner and Shri A.V. Sudarsanan as Full Time Menials with effect from 5.8.2002 and 5.6.2001 respectively. The proceedings show that the petitioner in W.P.(C) No.2555/2004 was not heard. A reading of the order shows that the Government has noted the stand of the Manager that he was willing to appoint the Rule 51B claimant, but she declined the offer. Learned counsel for the petitioner in W.P.(C) No.2555/2004 submitted that this order will run contrary to the earlier order passed by the Government which is in her favour. It is seen from the pleadings in W.P.(C) No.26231/2008 that the appointment of the petitioner as Full Time Menial with effect from 5.8.2002 has been approved as per Ext.P1 order, pursuant to the Government Order. wpc 2555/04, 3348/04 & 26231/08 9 But his promotion as Peon and as Clerk is pending approval. The objection regarding the grant of approval is two fold which is evident from Ext.P3. First one is that the writ petitions before this court are pending. As item 3 in Ext.P3 it is mentioned that the Manager stated that “a vacancy of Peon is kept open in the school for making appointment to the 51B claimant. So, the second post of Peon can be filled up soon after the outcome of the Original Petitions pending before the High Court.” Thus, only after the matter is finalised, further orders could be issued by the departmental authorities, evidently. The main prayer in the writ petition is for a direction to approve the appointments as per Exts.P2 and P4. 12. It is evident that when the Government passed the order Ext.P7 produced in W.P.(C) No.26231/2008 (Ext.P3 in W.P.(C) No.2555/2004), the petitioner in W.P.(C) No.2555/2004 was not heard. Going by the said order, the appointment of Shri A.V. Sudarsanan is directed to be approved as Full time Menial with effect from 5.6.2001, but going by the order Ext.P2, the claim of the petitioner under Rule 51B is also directed to be considered in that vacancy. Therefore, evidently, the matter requires a re- consideration by the Government. 13. Since the departmental authorities have issued consequential wpc 2555/04, 3348/04 & 26231/08 10 orders approving the appointment of Shri Gopakumar and Shri Sudarsanan pursuant to Ext.P7 order produced in W.P.(C) No.26231/2008, the said position will continue. The Government Order Ext.P7 will be treated as provisional till fresh orders are passed. Therefore, the writ petitions are disposed of in the following manner: W.P.(C) No.3348/2004 is allowed. Ext.P13 is quashed. the Government is directed to pass a fresh order on the merits of the claim under Rule 51B after hearing petitioners in these three writ petitions and Shri A.V. Sudarsanan, the 4th respondent in W.P.(C) No.3348/2004. Appropriate orders shall be passed within a period of four months from the date of receipt of a copy of this judgment. Depending on the said order, the request for approval made by Shri T.G. Gopakumar will also be considered and final orders will be passed. W.P.(C) Nos.2555/2004 and 26231/2008 will also stand disposed of in the above terms. (T.R. Ramachandran Nair, Judge.) kav/