IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 5274 of 2008(C) ------------------------------------- PETITIONER: ------------------- VARGHESE NINAN .M., MAVILA HOUSE, K.V.GARDEN 7, PEROORKADA P.O. THIRUVANANTHAPURAM-695 005. BY ADV. MR.T.P.DEYANANTHAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, D.E.O. OFFICE, THIRUVALLA. 5. THE CORPORATE MANAGER, CMS SCHOOL, C.S.I. DIOCESAN OFFICE, CATHEDRAL ROAD, KOTTAYAM, KERALA STATE. R1 TO R4 BY GOVT. PLEADER MR. RAMESH, R5 BY ADVS. MR.SANTHOSH MATHEW, MR.SATHISH NINAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5274/2008-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE B.COM. DEGREE CERTIFICATE PROVING QUALIFICATION. EXT.P.1.A: COPY OF THE S.S.L.C. BOOK PAGE NO.3 PROVING PETITIONER'S DATE OF BIRTH. EXT.P.2: COPY OF THE LETTER DTD. 17/01/1994 FROM THE SECRETARY TO BISHOP DIOCESE, KOTTAYAM. EXT.P.3: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE CORPORATE MANAGER OF CSI SCHOOLS DTD. 16/01/1997. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE CORPORATE MANAGER DTD. 21/01/1999. EXT.P.5: COPY OF THE CALL LETTER OF THE MANAGER OF CMS SCHOOLS DTD. 13/12/1999. EXT.P.6: COPY OF THE ADVOCATE'S REPLY DTD. 17/07/2006. EXT.P.7: COPY OF THE LETTER OF CORPORATE MANAGER OF CMS SCHOOLS DTD.24/01/2008. EXT.P.8: COPY OF THE LETTER OF THE R.4. D.E.O DTD. 16/01/2008. EXT.P.9: COPY OF THE REPRESENTATION SUBMITTED TO RESPONDENTS 3 AND 4 DTD. 26/12/2007. EXT.P.9.A: COPY OF THE POSTAL ACKNOWLEDGMENT RECEIVED FROM THE R.3. EXT.P.10: COPY OF THE REPRESENTATION SUBMITTED TO THE CORPORATE MANAGER. EXT.P.10.A: COPY OF THE POSTAL ACKNOWLEDGMENT RECEIVED FROM THE MANAGER DTD. 02/01/2008. EXT.P.11: COPIES OF THE REPORT AND ANNUAL STATEMENT OF ACCOUNT. RESPONDENTS' EXHIBITS: EXT.R5.1: COPY OF THE APPLICATION RECEIVED BY THE R.5 DTD. 21/01/1999. EXT.R5.2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT DT. 21/01/2000. W.P.(C). NO.5274/2008-C: EXT.R5.3: COPY OF THE G.O.(P).NO.12/99/P&ARD DTD. 24/05/1999. EXT.R5.4: COPY OF THE LIST OF VACANCIES OF THE L.D. CLERKS AROSE UNDER THE MANAGEMENT AFTER 01/01/1994. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.5274/2008-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of July, 2009 J U D G M E N T The petitioner herein is seeking appointment under the fifth respondent under Rule 51B of Chapter XIV A of the K.E.R on compassionate basis. The petitioner's father Shri M.N.Ninan was working as H.S.A in C.M.S. High School, Mallappally when he died on 03/03/1983. 2. The petitioner is having the qualification of B.Com which is evidenced by Ext.P1 and, Ext.P1(a) is the copy of his S.S.L.C book in proof of his date of birth. It is pointed out that the mother of the petitioner had submitted a representation earlier seeking appointment. The formal application by the mother is dated 01/01/1994, going by paragraph (2) of the writ petition. Ext.P2 is the reply given by the Secretary of the Bishop C.S.I. Diocese, Kottayam intimating that an application dated 01/01/1994, has been received and the same has been forwarded to the Manager of the school. 3. Ext.P3 is the application submitted in the prescribed form after the issuance of G.O.(MS) No.15/97/G.Edn., dated 16/01/1997. Ext.P4 is a further representation submitted on 21/01/1999. Ext.P5 is the call letter W.P.(C). No.5274/2008 -:2:- issued by the Manager to the petitioner, to attend an interview on 30/12/1999 at 2 p.m. In fact, the petitioner has issued a notice through lawyer to which Ext.P6 reply was given. In Ext.P6, it is stated that the application submitted by the petitioner will be considered in accordance with law subject to the writ petitioner fulfilling all the eligibility criteria for appointment by direct recruitment. Ext.P7 is a reply given under the Right to Information Act showing the number of vacancies which arose after 01/01/1994 ad the number of vacancies which were filled. It shows that 10 vacancies arose and all of them have been filled up by the management. Again the petitioner submitted Exts.P9 and P10 representations and since, no further action was taken in the matter, he approached this Court by filing this writ petition. 4. On behalf of the fifth respondent, a counter affidavit has been filed. Various contentions have been taken in support of the plea that the petitioner is not eligible to be appointed. 5. Learned counsel for the petitioner submitted that in the light of the various decisions of this Court, namely, Baiju Kumar v.D.E.O, Trivandrum [2003 (3) KLT 240] and Rajesh v.Secretary to Government [2007(3) KLT 376], the petitioner is entitled to be appointed in a suitable vacancy as clerk. It is therefore, submitted that the action taken by the Manager is clearly illegal as the petitioner has got a statutory right to get a W.P.(C). No.5274/2008 -:3:- suitable appointment. The learned counsel for the Manager submitted by relying on the averments in the counter affidavit that, the petitioner had not submitted any valid application immediately after the death of the father and the first valid and proper application was filed only after 17 years. This is disputed by the learned counsel for the petitioner. 6. Any way, it is a matter to be decided by the concerned educational authority. Herein, the fourth respondent is the District Educational Officer. 7. In the light of the fact that the Manager is not taking any action in the matter, the dispute whether the petitioner is entitled for appointment is to be resolved by the District Educational Officer. There will be a direction to the fourth respondent to take a decision on Ext.P9 produced in the writ petition after hearing the petitioner and the fifth respondent Manager within a period of two months from the date of receipt of a copy of the judgment. The parties are free to file appropriate representation before the District Educational Officer in the matter. The District Educational Officer will take a decision in accordance with law. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms