IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 9950 of 2010(P) PETITIONERS : 1. THE MANAGER, ITHITHANAM HIGHER SECONDARY SCHOOL, MALAKUNNAM PO,CHANGANASSERY. 2. P.N.MANOJ, PEON,ITHITHANAM HIGHER SECONDARY SCHOOL, MALAKUNNAM PO,CHANGANASSERY. 3. G.JAYAMOHAN, FULL TIME MENIAL, ITHITHANAM HIGHER SECONDARY SCHOOL, MALAKUNNAM PO,CHANGANASSERY. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH RESPONDENTS: 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM. 4. SMT.PRETHIBHA G.NAIR,D/O.GOVINDAN NAIR, MULLASSERIL HOUSE, ITHITHANAM PO, CHANGANASSERY, KOTTAYAM DISTRICT. R4 BY ADV. SMT.DHANYA CHANDRAN GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE JUDGMENT DATED 3.7.2007 IN W.P.(C)NO.17451 OF 2007. EXT.P2 TRUE COPY OF THE PROCEEDINGS DATED 15.2.2008 OF THE THIRD RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER DATED 17.1.2009 OF THE SECOND RESPONDENT. EXT.P4 TRUE COPY OF THE APPEAL DATED 2.3.2009 FILED BY THE FIRST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE INTIMATION DATED 6.5.2009 GIVEN BY THE FOURTH RESPONDENT TO THE FIRST RESPONDENT. EXT.P6 TRUE COPY OF THE HEARING NOTICE DATED 17.11.2009 ISSUED BY THE FIRST RESPONDENT. EXT.P7 TRUE COPY OF THE PROCEEDINGS DATED 22.12.2009 OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 9950 OF 2010 P ------------------------------------------------------ Dated this the 24th day of September, 2010 JUDGMENT The first petitioner is the Manager of Ithithanam Higher Secondary School, Malakunnam, Changanassery. Petitioners 2 and 3 are respectively Peon and Full Time Menial in the said School. The second petitioner was initially appointed as Peon on daily wages from 11.10.2004 to 14.12.2004 in a leave vacancy. It is stated that he was appointed as Full Time Menial on daily wages from 15.12.2004 to 28.2.2005 in the promotion vacancy of one Iswarikutty Amma. Subsequently, the second petitioner was appointed as Full Time Menial on regular basis with effect from 1.4.2005. The Deputy Director of Education rejected the proposal for approval of the appointment of the second petitioner on the ground of pendency of W.P.(C) No.30104 of 2004 filed by Prethibha G.Nair (fourth respondent) claiming compassionate employment under Rule 51B of Chapter XIV A of the Kerala Education Rules. 2. Petitioners 1 and 2 filed W.P.(C) No.17451 of 2007 W.P.(C) NO.9950 OF 2010 :: 2 :: challenging the order passed by the Deputy Director of Education rejecting approval of the appointment of the second petitioner. W.P. (C) Nos.17451 of 2007 along with another Writ Petition, namely, W.P.(C) No.30104 of 2004, was disposed of by this Court as per Ext.P1 common judgment dated 3.7.2007. Ext.P1 judgment was rendered recording the submission made by the Manager that he would consider the request for compassionate employment of Prethibha G.Nair. In Ext.P1 judgment, the District Educational Officer, Kottayam was directed to pass appropriate orders on the request for approval of appointment of the second petitioner. W.P. (C) No.30104 of 2004 filed by Prethibha G.Nair was closed on the basis of the undertaking made by the Manager. 3. It would appear that there was some defect in the application submitted by Prethibha G.Nair for compassionate employment. It is stated that the legal heirship certificate was not produced by her. In these circumstances, the Manager promoted the second petitioner as Peon in the retirement vacancy of one Iswarikutty Amma with effect from 1.12.2007. The Manager also appointed the third petitioner as Full Time Menial in the resultant W.P.(C) NO.9950 OF 2010 :: 3 :: vacancy, with effect from 7.12.2007. According to the petitioners, the fourth respondent was not interested in pursuing her request for compassionate employment and that in those circumstances, the promotion of the second petitioner and the appointment of the third petitioner were made by the Manager. However, the District Educational Officer rejected the proposal for approval of promotion of the second petitioner and appointment of the third petitioner, as per Ext.P2 order dated 15.2.2008. Ext.P2 order was challenged by the Manager before the Deputy Director of Education, who dismissed the appeal as per Ext.P3 order dated 17.1.2009. Challenging Ext.P3 order, the Manager filed Ext.P4 revision before the Director of Public Instruction, Thiruvananthapuram. The Director of Public Instruction heard the case on 5.12.2009. Notice was issued to Prethibha G.Nair also. It is stated that she stated before the Director of Public Instruction that she was not interested in pursuing her application for compassionate employment as she had obtained another employment. Ext.P5 letter dated 6.5.2009 submitted by Prethibha G.Nair to the Director of Public Instruction was also relied on. However, without stating anything about the statement made by Prethibha G.Nair, the Director of Public Instruction passed Ext.P7 W.P.(C) NO.9950 OF 2010 :: 4 :: order dated 22.12.2009 dismissing the revision filed by the Manager. Exts.P2, P3 and P7 are under challenge in this Writ Petition. 4. The fourth respondent (Prethibha G.Nair) has filed a counter affidavit, in which, she stated that she had submitted Ext.P5 representation before the Director of Public Instruction withdrawing her claim for compassionate employment. She also stated that she had appeared before the Director of Public Instruction and had stated before him that she was not interested in getting compassionate employment. 5. In view of the fact that the fourth respondent is not interested in claiming the benefit of Rule 51B of Chapter XIV A of the Kerala Education Rules, normally, there cannot be any impediment in approving the appointment and promotion of the second petitioner and appointment of the third petitioner, if the appointments and promotion are otherwise in order. In the facts and circumstances of the case, Exts.P2, P3 and P7 orders are quashed. The District Educational Officer shall consider the question of approval of appointments and promotion referred to above on the merits and W.P.(C) NO.9950 OF 2010 :: 5 :: shall pass appropriate orders as expeditiously as possible and, at any rate, within a period of one month from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioners, the fourth respondent and any other affected party. The petitioners shall produce a copy of the Writ Petition and certified copy of the judgment before the District Educational Officer. The Writ Petition is allowed as indicated above. (K.T.SANKARAN) Judge ahz/