IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 36801 of 2007(F) -------------------------- PETITIONER: --------------- ANJANA K.NAIR, D/O.ASHOK KUMAR, AGED 22, MANINGAL MEETHAL HOUSE, ANNASSERI P.O., THALAKKULATHUR, KOZHIKODE-673 317. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENTS: --------------- 1. THE MANAGER, VIJAYA LAKSHMI U.P. SCHOOL, THALAKKULATHUR, ANNASSERY P.O., KOZHIKODE. 2. THE ASSISTANT EDUCATIONAL OFFICER, CHEVAYUR SUB DISTRICT EDUCATION OFFICE, ERANHIPALAM P.O., CALICUT. ADDL. R3. P.RAJAGOPALAN, S/O.PADMANABHAN NAIR, PUTHUKODI HOUSE, ANNASSERI P.O, THALAKULATHUR, KOZHIKODE. ADDL. R3 IMPLEADED AS PER ORDER DATED 30.1.2009 IN I.A.NO.15970/2008 ADV. SRI.V.A.MUHAMMED FOR R1 SRI.K.E.HAMZA FOR R1 SR. GOVT. PLEADER SMT.T.B.REMANI FOR R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009 ALONG WITH W.P(C) NO.36712 OF 2008. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36801 of 2007(F) APPENDIX PETITIONER'S EXHIBITS EXT.P1 : COPY OF THE RELEVANT PAGES OF THE SECONDARY SCHOOL LEAVING CERTIFICATE DATED 31.3.2005 EXT.P2 : COPY OF THE CERTIFICATE OF PASS DATED 20.6.2002 EXT.P3 : COPY OF THE REPRESENTATION DATED 2.12.2005 EXT.P4 : COPY OF THE REPRESENTATION DATED 2.12.2005 EXT.P5 : COPY OF THE COMMUNICATION DATED 26.10.2007 EXT.P6 : COPY OF THE FRESH APPLICATION SUBMITTED BEFORE THE MANAGER, VIJAYALAKSHMI U.P.SCHOOL //TRUE COPY// PA TO JUDGE P.N.RAVINDRAN, J. --------------------------------------- W.P(C) Nos.36801 of 2007 & 36712 of 2008 ------------------------------------------ Dated this the 2nd day of April, 2009. J U D G M E N T The parties to these writ petitions are the same. The issue raised is also similar. They were thereupon heard together and are being disposed of by this common judgment. 2. The third respondent in W.P(C) No.36801 of 2007 (who is the fourth respondent in W.P(C) No.36712 of 2008) was appointed as Peon in a leave vacancy during the period from 24.6.2002 to 31.8.2002. That appointment was approved. He was re-appointed in a leave vacancy during the period from 1.9.2002 to 28.9.2002. That appointment was also approved. The date of birth of the third respondent in W.P(C) No.36801 of 2007 is 6.5.1965. He belongs to the forward community. Going by his date of birth, his appointment was not in order. However overlooking that fact his appointments in the two leave vacancies referred to above were approved. He was again appointed as Peon in a leave vacancy for the period from 28.9.2002 to 16.10.2002. At that stage, the Assistant Educational Officer noticed that the initial appointment of the third respondent in W.P.(C) No.36801 of 2007 was not in order as he was over aged. The Assistant Educational Officer accordingly declined to approve his appointment by Ext.P2 order dated 16.8.2003 produced in W.P(C) Nos.36801 of 2007 & 36712 of 2008 2 W.P(C) No. 36712 of 2008. The third respondent in W.P (C) No. 36801 of 2007 thereupon moved the Government. 3. The petitioner's father late Ashok Kumar was working as Peon in the same school. As a matter of fact it was in his leave vacancy that the third respondent was initially appointed. The petitioner's father passed away on 21.11.2005. The petitioner thereupon applied for employment assistance under Rule 51B of Chapter XIV A of the KER and thereafter filed W.P(C) No.36801 of 2007 in this Court seeking a direction to the Manager of the school to take a decision on her application for compassionate appointment. While the said writ petition was pending, the Government considered the third respondent's request and passed Ext.P3 order dated 13.4.2007 invoking the power conferred under Rule 3 of Chapter I of the KER and granted relaxation of the upper age limit. The Government accordingly directed the Assistant Educational Officer to approve the third respondent's appointment during the period from 24.6.2002 to 16.10.2002. W.P(C) No.36712 of 2008 was thereupon filed challenging Ext.P3 Government order dated 13.4.2007 and for a direction to the Assistant Educational Officer not to approve the third respondent's appointment. 4. Sri.K.S.Madhusoodanan, the learned counsel appearing for the petitioner contends that the Government have not granted relaxation W.P(C) Nos.36801 of 2007 & 36712 of 2008 3 of the upper age limit and ratified the initial appointment of the third respondent. The learned counsel contends that if the order of exemption passed by the Government and the relaxation of the upper age limit are not applicable to the third respondent's initial appointment, the third respondent's initial appointment would be irregular and he would not acquire the right under Rule 51A of Chapter XIV A of the KER. The learned counsel further submits that if that be the position, the petitioner has a fair chance of being appointed as Full time Menial. Per contra Sri.K.E.Hamza, the learned counsel appearing for the third respondent in W.P(C) No. 36801 of 2007 submits that the Manager was misled by the conflicting stipulations in sub rule (2) of Rule 2 of Chapter XXIV A of the KER and Rule 5 of Chapter XXIV B of the KER. The learned counsel submits that while in Chapter XXIV A, the upper age limit is prescribed as 45 years, in Chapter XXIV B it is stated that the upper age limit will be the same as prescribed in Government schools. The learned counsel submits that it was taking note of these conflicting provisions that the Government in its discretion decided to relax the stipulation regarding the upper age limit and ratified the appointment of the third respondent. 5. I have considered the submissions made at the Bar by the learned counsel on either side. The third respondent was first appointed on 24.6.2002. He was re appointed on 1.9.2002 and thereafter again W.P(C) Nos.36801 of 2007 & 36712 of 2008 4 on 28.9.2002. The petitioner's father was in service when the third respondent was appointed and even thereafter. He passed away only on 21.11.2005. The petitioner had no right till 21.11.2005 either to claim appointment under Rule 51B or any other right as the daughter of a teacher working in the third respondent's school, I am therefore not persuaded to agree with the learned counsel for the petitioner that the petitioner had a right to be heard before Ext.P3 order was passed. 6. Sub rule (2) of Rule 2 of Chapter XXIV A of the KER stipulates that the lower age limit for appointment as a member of the non-teaching staff shall be 18 and the upper age limit shall be 45. On the other hand Rule 5 of Chapter XXIV B stipulates that the conditions regarding the age limit and the relaxation thereof for appointment of non-teaching staff in Government schools shall apply to the non- teaching staff of aided schools. The third respondent's appointment in the first spell during the period from 24.6.2002 to 31.8.2002 was approved by the Assistant Educational Officer. It was only when he was appointed on the third occasion that an objection was raised that he was over aged when he was first appointed. Going by Rule 2 of Chapter XXIV A of the KER it cannot be said that the third respondent was over aged. However in view of the stipulation in Rule 5 of Chapter XXIV B, the appointment was objected to when the third respondent was appointed W.P(C) Nos.36801 of 2007 & 36712 of 2008 5 on the third occasion. The Government have considering the totality of the facts and circumstances exercised the power of exemption and relaxed the rules in favour of the third respondent who had worked as Peon in the school on two earlier occasions. In my opinion, on the facts disclosed it cannot be said that the action of the Government in relaxing the upper age limit in favour of the third respondent is arbitrary or illegal. I accordingly hold that there is no merit in the challenge to Ext.P3 produced in W.P(C) No. 36712 of 2008. 7. In W.P(C) No.36712 of 2008, the petitioner seeks employment under Rule 51B of Chapter XIV A of the KER. Sri.K.E.Hamza, the learned counsel for the Manager submits that the petitioner will be accommodated in the next available vacancy of teaching or non-teaching staff. In my opinion, the said submission should dispel any apprehension which the petitioner may entertain that her claim under 51B of Chapter XIV A of the KER will not be recognized by the Manager. I accordingly record the said submission of the Manager and direct that vacancies arising hereafter for which the petitioner is qualified, to be appointed shall be offered to the petitioner and shall be filled up otherwise only if the petitioner declines appointment in writing. The learned counsel for the Manager submits that the third respondent has been re-appointed in the vacancy that arose on 14.5.2007 and that in W.P(C) Nos.36801 of 2007 & 36712 of 2008 6 view of the pendency of these writ petitions, the said appointment has not been approved. I clarify that if the appointment of the fourth respondent with effect from 14.5.2007 has been withheld due to the pendency of these writ petitions, the competent authority shall pass orders approving the said appointment if it is otherwise in order, within two months from the date of receipt of a certified copy of this judgment. The writ petitions are disposed of as above. No costs. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab W.P(C) Nos.36801 of 2007 & 36712 of 2008 7