IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 714 of 2004(I) ------------------------ PETITIONER(S): --------------- SIMI.S., SUJATHA MANDIRAM, THACHARVILAKOM, PERUNGUZHI P.O., THIRUVANANTHAPURAM-695 305. BY ADV. SRI.B.RAGUNATHAN SRI.G.S.MOHANDAS SRI.V.V.MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 695 001 2. DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM 695 001 3. DISTRICT EDUCATIONAL OFFICER, STATUE, THIRUVANANTHAPURAM 695 001 4. MANAGER, ST.AUGUSTINE'S HIGH SCHOOL, MURUKUMPUZHA, THIRUVANANTHAPURAM 695 302. 5. SMT. BINU M.R., UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM 695 302 6. SMT. SHAYLAJA CLEETUS, UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM 695 302 7. SMT. LEKHARANI, UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM 695 302. ADV. SRI.M.R.RAJESH FOR R5 GOVERNMENT PLEADER SRI. K.K. RAJEEV FOR R1,2,3 SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR R4,R6,R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 714/2004 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : TRUE COPY OF THE LETTER DATED 10.06.2003 OF THE 4TH RESPONDENT. EXHIBIT P2 : TRUE COPY OF REPRESENTATION DATED 11.06.2003 TO THE 3RD RESPONDENT. EXHIBIT P3 : TRUE COPY OF THE REPRESENTATION DATED 17.06.2003 TO 3RD RESPONDENT. EXHIBIT P4 : TRUE COPY OF THE COVERING LETTER DATED 17.06.2003 TO 4TH RESPONDENT. EXHIBIT P5 : TRUE COPY OF THE LETTER DATED 28.06.2003 OF THE 4TH RESPONDENT. EXHIBIT P6 : TRUE COPY OF THE REPRESENTATION DATED 07.07.2003 TO THE 4TH RESPONDENT. EXHIBIT P7 : TRUE COPY OF THE JUDGMENT DATED 11.07.2003 IN WP(C) NO. 22194/2003-P EXHIBIT P8 : TRUE COPY OF THE REPRESENTATION DATED 02.08.2003 TO THE 3RD RESPONDENT. EXHIBIT P9 : TRUE COPY OF THE REPRESENTATION DATED 30.09.2003 TO THE 3RD RESPONDENT. EXHIBIT P10 : TRUE COPY OF THE ORDER DATED 06.10.2003 PASSED BY THE 3RD RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. P.R.RAMACHANDRA MENON, J ----------------------------------------- WP(C) NO. 714 OF 2004 ------------------------------------ Dated this the 12th day of October, 2011. JUDGMENT The relative merits of the petitioner's claim under Rule 51 B Chapter XIV A, KER, and that of the 5th respondent, who is stated as a Rule 51 A claimant, in respect of the vacancy of UPSA that arose in the year 2003 forms the basic issue involved herein. 2. Petitioner’s mother, while working as the Headmistress of the 4th respondent's school, bid farewell to this world on 05.12.2001. The petitioner being a Trained Graduate, made an application before the 4th respondent on 29.05.2003, claiming appointment under dying-in-harness, as a Rule 51 B claimant. It is stated that the said application was preferred, giving the first choice as UPSA, second one as HSA and the third one as a Clerk. During the pendency of the said application, inspite of arising three vacancies on 02.06.2003, 09.06.2003 and 13.06.2003, the fourth respondent gave appointment to the respondents 5, 6, and 7 respectively denying the right of appointment to the petitioner. 2 WP(C) No. 714/2004 3. Later, the petitioner was served with Ext.P1 communication dated 10.06.2003, asking the petitioner to join the post of HSA, which was a 'leave vacancy', pursuant to maternity leave availed by the incumbent. On receipt of the said communication, the petitioner submitted Ext.P2 representation before the third respondent pointing out that the course pursued by the 4th respondent was not correct or proper. The petitioner was not willing to join the leave vacancy of HSA as she was to lose the benefit in respect of 51 B claim and further that, she was eligible and entitled to have appointed as UPSA against the vacancy arose on 02.06.2003. In spite of sending Ext.P3 reminder to the 3rd respondent, nothing transpired in the positive. 4. While so, the 4th respondent, through Ext.P5 communicated to the petitioner to join the HSA vacancy (leave vacancy); lest the Manager should proceed with further steps treating that the petitioner was not interested to join duty. In the compelling circumstances, the petitioner was having no further option but to join the leave vacancy of HSA, joined the 3 WP(C) No. 714/2004 post under protest, as borne by Ext.P6, the last paragraph of which reads as follows. “I may be permitted to join duty as has (Maths) on 07.07.2003, FN, duly reserving my right for appointment to one of the regular vacancies of UPSA in which you have already made appointments, without considering my preferential claim for appointment, with retrospective effect”. About three months after joining duty, the vacancy was over and the petitioner had come out. Subsequent turn of events shows that the petitioner was ready and willing to have appointment against the leave vacancy arose in June, 2004 and was being accompanied by the 4th respondent and that her appointment was also approved from 05.07.2004 to 31.12.2005. 5. Because of the callous inaction on the part of the concerned respondent, in setting petitioner's better claim, she approached this Court by filing WP(C) No. 22194/2003, which was disposed of as per Ext.P7 judgment, directing the second respondent to consider Exts.P2 and P3 complaints preferred by the petitioner. The petitioner forwarded a copy of the said verdict to the 3rd respondent, along with Ext.P8, followed by Ext.P9 representation enclosing a copy of the verdict in OP 4 WP(C) No. 714/2004 No.8968/2002, (Baiju Kumar Vs. D.E.O. Trivandrum) reported in [2003 (3) KLT 240]. Pursuant to this, the 3rd respondent passed Ext.P10 order. The last two paragraphs are relevant and hence extracted below:- “Smt. Binu M.R., the fourth respondent informed that she is a claimant as per Rule 51A, Chapter XIV A KER, to the category of UPSA. The petitioner Smt./Kum. Simi S. has requested this office to direct the Manager to appoint her against the regular and existing vacancy of UPSA, available at the beginning of the academic year 2003-04. Considering the directions in the WP(C) No. 22194 of 2003 (P) of the Hon'ble High Court of Kerala and the arguments of the petitioner, Smt./Kum. Simi S. and the respondents, the undersigned has came to the conclusion. The Manager has appointed Smt./Kum. Simi S., the petitioner as HSA(Maths) at St.Augustine's HS, Murukkumpuzha, by observing Rule 51 B, Chapter XIV A, KER. The petitioner has accepted the appointment and joined duty with effect from 07.07.2003. The undersigned has found nothing irregular in the action of the Manager. The proposal for approval of appointment in respect of the petitioner and the respondents will be disposed as per Rules”. The petitioner is challenging the said order and seeks for specific direction to have her appointed as UPSA reckoning the Rule 51 B claim. 6. Despite the completion of service of notice and the pendency of the matter for more than seven years, no counter 5 WP(C) No. 714/2004 affidavit has been filed from the part of the respondents particularly the 4th respondent Manager or the contestant respondents 5 to 7. 7. The learned counsel for the petitioner submits that the petitioner is having a better claim by virtue of the mandatory requirements of the Rule. It is also stated that the specific case of the petitioner was never considered by the 3rd respondent while passing Ext.P10, who considered the matter pursuant to Ext.P7 judgment only with reference to the appointment given to the petitioner against the leave vacancy of 'HSA' and never with reference to the eligibility to have appointment as a 'UPSA' in respect of the vacancy arose on 02.06.2003. 8. The learned counsel further submits that the observation of the 3rd respondent in Ext.P10 that the 5th respondent was a Rule 51 A claimant and was given the first appointment against the vacancy of UPSA, which arose in the year 2003-04 is quite wrong and unfounded. It is asserted with reference to the specific pleading, that the said respondent was never holding any 'approved post of UPSA' and as such was not 6 WP(C) No. 714/2004 liable to be treated as a Rule 51 A claimant. The observation made by the 3rd respondent in Ext.P10 is only the statement as made by the 4th respondent/Manager; whichever was not even sought to be verified with reference to the actual records. That apart, by virtue of the law declared by this Court in Baiju Kumar Vs. D.E.O. Trivandrum [2003 (3) KLT 240], there is no duty for the claimant even to make any application, being a Rule 51 B claimant and it is for the Manager to inform the vacancy position to the party before making any appointment. The declaration as above by the Division Bench of this Court is reiterated in the subsequent decision in S.N.G.S. High School Vs. Reji Sagar [2008 (1) KLT 1026] as well. This being the position, Ext.P10 order passed by the 3rd respondent is per se wrong and illegal, submits the learned counsel. 9. Heard the learned Government Pleader appearing for the State/respondents 1 to 3, as well as the learned counsel appearing for the 4th respondent. 10. As mentioned hereinbefore, the averments in the Writ Petition stand un-controverted, for not having been rebutted by 7 WP(C) No. 714/2004 any of the respondents. That apart, there is no answer with regard to the contention raised from the part of the petitioner, with reference to relevant provisions of law and the binding judicial precedents. In the above circumstances, this Court cannot but arrive at a finding that the first vacancy of UPSA, which arose on 02.06.2003 is liable to be filled up by giving appointment to the petitioner, whose claim under Rule 51 B of Chapter XIV A of the KER was very much subsisting. Ext.P2 application having been submitted as early as on 29.09.2003. The action pursued by the 4th respondent Manager to the contrary, giving appointment to the 5th respondent, followed by the sanction given by the departmental authorities, is not correct or sustainable and is liable to be rectified accordingly. 11. In the above facts and circumstances, Ext.P10 order passed by the 3rd respondent is set aside and the respondents 1 to 4 are directed to pursue further steps to appoint the petitioner as UPSA in respect of the first vacancy arose on 02.06.2003, take steps to approve the said appointment and effect disbursement of arrears of salary and other benefits to the petitioner forthwith. 8 WP(C) No. 714/2004 Proceedings as above shall be finalized in accordance with law, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. It is open for the respondents 1 to 3 to realize the loss caused to the public exchequer, if any, from the 4th respondent-Manager of the School. The Writ Petition is allowed. No cost. P.R.RAMACHANDRA MENON JUDGE dnc