IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WP(C).No. 24579 of 2009(N) --------------------------------------- PETITIONER: ------------------- PRASAD KUMAR.P.K., V.K.N.M.H.S., VAYYATTUPUZH, PATHANAMTHITTA DISTRICT, (PERUMPATTETHU HOUSE, MALAYALAPUZHA, THAZHAM P.O., PATHANAMTHITTA DISTRICT). BY ADV. MR.P.HARIDAS. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA, PATHANAMTHITTA DISTRICT. 4. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 5. THE MANAGER, V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT. 6. HEAD MASTER, V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT. 7. ANEESH.K.R., S/O.RADHAKRISHNA PILLAI, KARACKATTU KUNNEL, ANGAMOOZHY P.O., SEETHATHODU, PATHANAMTHITTA. R1 TO R4 BY GOVT. PLEADER MR. SANDESH RAJA, R5 BY ADV. MR.S.D.ASOKAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24579/2009-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF APPOINTMENT ISSUED BY THE R.5 DTD. 18/11/1996. EXT.P.2: COPY OF THE ORDER OF APPOINTMENT ISSUED BY THE R.5. DTD. 01/04/2000. EXT.P.3: COPY OF THE TRANSFER AGREEMENT DTD. 10TH OCTOBER,1999. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.4. DTD. 09/07/2000. EXT.P.5: COPY OF THE ORDER NO.B3/8523/2000 DTD. 21/11/2000 DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. EXT.P.6: COPY OF THE ORDER PASSED BY THE R.3. DTD. 07/08/2001. EXT.P.7: COPY OF THE G.O.(RT).NO.1398/2002/G. EDN. DTD. 31/05/2002. EXT.P.8: COPY OF THE GOVERNMENT ORDER G.O.RT.408/99/G.EDN. DTD. 28/01/1999. EXT.P.9: COPY OF THE JUDGMENT IN W.A. NO. 1148/2008 DTD. 20/02/2008. EXT.P.10: COPY OF THE GOVERNMENT ORDER DT. 30/12/08. EXT.P.11: COPY OF THE APPOINTMENT ORDER DTD. JANUARY, 2010 ISSUED BY R.5. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 24579 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February, 2010 J U D G M E N T The petitioner was an approved full-time menial in the school of the 5th respondent for the period from 18.11.1996 to 17.11.1999 and from 01.04.2000 to 15.07.2001. Subsequently a vacancy of Clerk arose. The petitioner laid a claim for the said post under Rule 43 of Chapter XIV A of KER. Ultimately he had approached this court by filing W.P.(C) Nos.25482/2002 and 28854/2006 which were dismissed. In the meantime Rule 51 A of Chapter XIV A KER was amended incorporating a provision that claim under the Rule would be available in respect future vacancies in higher or lower categories. In the writ appeals filed against the judgment in the writ petitions, the petitioner sought amendment of the prayers in the writ petition accordingly. Subsequently an L.D. Clerk in the service of the school left service and there arose a vacancy W.P.(C)No. 24579 of 2009 -2- in 2006. According to the petitioner he is entitled to that post in view of the amended Rule 51A of Chapter XIV A KER. By Ext.P9 judgment, this court directed the Director of Public Instructions to consider the claim of the petitioner on a representation to be made by the petitioner. The Director of Public Instructions rejected the claim holding that amendment to Rule 51 of Chapter XIV a KER is applicable only to teachers and not to non-teaching staff which finding, according to the petitioner is overlooking Rule 7 of Chapter XXIV B of the Kerala Education Rules. It is under the above circumstances the petitioner filed this writ petition seeking the following reliefs: (i) Call for records leading to Exhibit P-10 and may quash the same by issuing a writ of certiorari. (ii) issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the respondents 1 to 6 to appoint the petitioner as L.D. Clerk in the vacancy arising out by resignation of Sri. Santhosh Kumar after retrenching/replacing the 7th respondent. (iii) Issue such other reliefs, as this Honourable Court deems fit and just in the circumstances of the case. 2. Now the petitioner and the 5th respondent manager have come to a compromise, which has reduced W.P.(C)No. 24579 of 2009 -3- to writing in I.A. No.2184/2010, which reads as follows: “1. 5th respondent has already issued order of appointment to the petitioner as a full time menial in a leave vacancy. True copy of the Order of appointment is produced herewith and marked as Exhibit P-11. 5th respondent shall absorb him in a regular vacancy arising on retirement of Shri. C.P. Soman Nair Peon. If any vacancy of full time menial/peon arise on an earlier point of time 5th respondent shall appoint petitioner in such vacancy. 5th respondent shall take all earnest effort to see that petitioner's appointment will be regularized and salary will be paid to him at the earliest. Petitioner agrees that the 7th respondent may continuing service and challenge against the appointment of the 7th respondent is hereby withdrawn.” 3. In the above circumstances, this writ petition is disposed of in terms of the said agreement which shall be binding on the petitioner and the 5th respondent manager. S. SIRI JAGAN JUDGE shg/