IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(C).No. 32844 of 2010(E) ---------------------------------------- PETITIONER(S): ----------------------- K.A.RUGMINI AMMA, THE MANAGER, V.H.S.S.CHATHIYARA, THAMARAKKULAM. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-PIN- 695 001. 3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA-PIN- 680 101. 4. REMYA R.CHANDRAN, MUTHUKATTUKARA, NOORANAD P.O., ALAPPUZHA DISTRICT, PIN-690 504. 5. RESHMI R.CHANDRAN, NALAYALATHU HOUSE, MUTHUKATTUKARA, NOORNAD P.O., PIN-690 504. R1 TO R3 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA R5 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND SRI.PETER JOSE CHRISTO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- WP(C)NO.32844/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT DATED 18/01/2005 IN O.P.NO.38807/2002. P2 COPY OF THE APPOINTMENT ORDER DATED 01/08/2006. P3 COPY OF THE REQEUST DATED 01/08/2006 P4 COPY OF THE ORDER DATED 21/02/2007 . P5 COPY OF THE REVISION PETITION DATED 12/04/2007. P6 COPY OF THE APPOINTMENT ORDER DATED 01/10/2007. P7 COPY OF THE REQUEST DATED 01/10/2007. P8 COPY OF THE ORDER DATED 23/01/2009. P8(A) COPY OF THE ORDER DATED 23/01/2009. P9 COPY OF THE APPLICATION DATED P10 COPY OF THE JUDGMENT IN WP(C)NO.11073/10 P11 COPY OF THE HEARING NOTE WAS SUBMITTED BEFORE THE GOVERNMENT 31/08/2010. P12 COPY OF THE ORDER DATED 23/09/2010 PASSED BY GOVERNMENT REJECTING THE REVISION FILED BY THE PETITIONER. RESPONDENT'S EXHIBITS: R5(A) COPY OF THE REPRESENTATION DATED 30/06/2009 OF THE 4TH RESPONDENT SUBMITTED TO THE PETITIONER. R5(B) COPY OF THE AFFIDAVIT DATED 12/06/2009 OF THE 4TH RESPONDENT. /TRUE COPY/ P.A.TO.JUDGE sts T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.32844/2010-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 6th day of June, 2011 J U D G M E N T The challenge raised by the petitioner is against Ext.P12 order passed by the Government whereby the fifth respondent is directed to be appointed as Full Time Menial in the existing vacancy, if she is otherwise eligible. The matter arises in the light of the claim raised by the fifth respondent for appointment by recognising her right under Rule 51B of Chapter XIVA Kerala Education Rules. The fourth respondent is her sister. The mother of respondents 4 and 5 was a teacher in the school and she died while in service on 29/01/1989. She was working as a High School Assistant. 2. The Manager made two appointments, one in the vacancy which arose on 01/08/2006 and another on 01/10/2007. Both these vacancies were filled up by appointing fresh hands as Full Time Menials. The requests for approval of appointments were rejected holding the view that the fourth respondent is the W.P.(C). No.32844/2010 -:2:- original claimant to be appointed in their place. Later, the fourth respondent relinquished her claim and the fifth respondent submitted an application as per Ext.P9. The Government finally rejected the revision petition filed by the Manager by Ext.P12 order. 3. The learned counsel for the petitioner submitted that as on the date of occurrence of two vacancies mentioned above, the fifth respondent was not eligible as she had not attained the age of 18 years as on the first day of January of 2006 or in 2007. Her date of birth is 18/08/1984. Reference is made to Rule 5 of Chapter XXIVB K.E.R. as well as Rule 2(2) of Chapter XXIVA K.E.R. and Ext.P1 Judgment of this Court. 4. In Ext.P1 Judgment, the very same question was considered in respect of the claim raised by the fourth respondent in an earlier vacancy. It was held by this Court in paragraph (9) as follows “it is difficult to concede to the position that rule 5 of Chapter XXIV B requiring that the person shall be 18 years of age as on the first day of January in which the appointment is W.P.(C). No.32844/2010 -:3:- to be made, is liable to be ignored”. Following the above said reasoning it was held that the appointment of the third respondent therein, in the year 2002, has to be approved. 5. Evidently, the said dictum will apply as far as the fifth respondent also is concerned. In the light of the above, if the various factual aspects are analysed, it can be seen that the two vacancies herein arose in the respective years 2006 and 2007 viz., on 01/08/2006 and 01/10/2007, and the fifth respondent has not attained the age of 18 years, if reckoned in terms of the rules as on 1st January of the year. Therefore, the fifth respondent cannot raise a valid claim as far as the appointments in respect of the vacancies of 2006 or 2007 are concerned. 6. The learned counsel appearing for the fifth respondent submitted that what is directed by the Government is to give an appointment in the light of the statutory right under Rule 51B of Chapter XIVA K.E.R and the said direction need not be interfered with in these proceedings. The right of the fifth W.P.(C). No.32844/2010 -:4:- respondent under Rule 51B being a statutory right, the same cannot be denied by the Manager. Therefore, it cannot be said that the Government is wrong in recognising her right for appointment under Rule 51B of Chapter XIVA Kerala Education Rules while passing Ext.P12. It is only a direction by the Government to the Manager to appoint the fifth respondent in the existing vacancy immediately. 7. Evidently, her right as such cannot be said to be without any merit. But her right to claim appointment in the vacancies which arose on 01/08/2006 and 01/10/2007 may not survive. Therefore, Ext.P12 order requires only a modification to that extent. Therefore, the writ petition is disposed of as follows:- There will be a direction to approve the appointments made by the Manager as per Exts.P2 and P6 orders. The claim of the fifth respondent will be considered in any of the vacancies in the light of Ext.P12 which may have arisen after 01/10/2007 and in future if so far no vacancies have arisen as she is entitled to be W.P.(C). No.32844/2010 -:5:- considered for an appointment under Rule 51B of Chapter XIVA K.E.R. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms The date “18/08/1984” occurring in the 6th line of paragraph 3 of the judgment dated 06/06/2011 in WP(C) 32844/2010 is corrected and substituted as “29/01/1989” as per order dated 20/06/2011 in I.A 9431/2011 in WP(C) 32844/2010. Sd/- Registrar (Judicial)