IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 24858 of 2006(H)
1. R.SHAMSHAD,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE MANAGER,
5. SMT. ANJU S.S.,
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :SRI.M.A.THOMAS KUTTY
The Hon'ble MR. Justice K.M.JOSEPH
Dated :14/02/2007
O R D E R
K.M.JOSEPH, J.
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W.P.(C).NOs.24858 & 26516 of 2006
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Dated this the 14th day of February, 2007
JUDGMENT
The issue involved in these cases are connected. Hence they
are disposed of through this common judgment.
By Ext.P1 petitioner in W.P.(C)No.24858/06 hereafter
referred to as the petitioner was appointed in a leave vacancy from
14-02-2000 to 18-04-2000. By Ext.P2 petitioner came to be
appointed against a regular vacancy of Clerk with effect from
02-06-2003. The fifth respondent preferred Ext.P3 petition stating
that she is the daughter of Sri.C.Sasikumaran who was working as
Headmaster in the school. She points out that her father died on
24-06-1997. It is also pointed out that on 17-06-99, her sister had
filed an application and since her sister married, her claim may be
considered. Ext.P3 is seen dated 03-12-2002. This court directed
the manager to consider the matter. Pursuant to the said judgment,
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Ext.P5 order is passed by the manager rejecting the claim of the
fifth respondent. Two reasons were given. Firstly it is stated that
the application was not submitted within two years of attaining
majority. Secondly, it is stated that there is a 51A claimant namely
the petitioner in W.P.(C)No.24858/06 who got approved service as
evident from Ext.P1. Reliance is placed on the decision of this
court in Deepthy Susan Jacob v. State of Kerala
(1996(2)KLT 1033). Fifth respondent approached this court
challenging the same and it culminated in Ext.P6 judgment. This
court permitted the fifth respondent to file a revision before the
Government under Rule 92 of Chapter XIV A impugning the
appointment of the petitioner in W.P.(C)No.24858/06. Pursuant to
the said judgment, Ext.P7 order is passed by the Government, by
which approval of the appointment given to the petitioner by the
DEO was cancelled with effect from the date of appointment of
the petitioner as clerk. Fifth respondent was directed to file a
revised application with all necessary documents stipulated in the
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Government order before the Manager, if not already done.
Ext.P8 is the order produced by the petitioner to show that the
Government took a different stand. Ext.P9 is produced to show the
properties of the fifth respondent. Ext.P10 is the judgment of the
Division Bench of this court relied on by the petitioner. Petitioner
in W.P.(C)No.26516/06 is the manager and referred to as the
Manager. He also impugns the same order.
2. I heard learned counsel appearing for the parties.
3. It is contended by learned counsel Sri.V.A.Muhammed
appearing on behalf of the petitioner that the Government has
failed to take note of the dictum in Deepthy Susan Jacob v. State
of Kerala ( 1996(2)KLT 1033). Petitioner is a Rule 51A claimant
having regard to the approval as evident from Ext.P1 order and
Rule 51A claimant will prevail over rule 51B claimant, he
contends. He would further submit that there is no application
given by the fifth respondent as contemplated in law. He refers me
to Rule 51B to point out that application must be in the form
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prescribed as per the Government order. He emphasises Ext.P8
order of the Government wherein Government takes a stand in
accordance with law. Further he would submit that the
Government order referred to in Rule 51B insists upon a ceiling
limit of Rs.150,000 as the income from all the sources including
income from property. He points out the properties standing in the
name of the fifth respondent. He would point out that fifth
respondent was married and her husband is a business man and
therefore she is not entitled and this aspect was not considered by
the Government.
4. Per contra, learned counsel for the fifth respondent
would contend that there is absolutely no basis for the claim based
on Rule 51A. He would contend that the right under Rule 51A
could not be pressed into service for the reason that fifth
respondent’s father died in the year 1997 and the appointment of
the petitioner was in the year 2000. If only the petitioner was
appointed prior to the death of the father of the fifth respondent, he
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would have become a Rule 51A claimant, he contends and his
claim would have prevailed over the right acquired upon the death
of the fifth respondent father in the year 1997. He would further
point out the decision of this court in Baiju Kumar v. DEO,
Trivandrum ( 2003(3)KLT 240), wherein this court has taken the
view that manager knows who are the dependants of the deceased
employee and he is duty bound to inform the dependants and
thereafter follow the procedure under Rule 51A. He would point
out that this has not been done and if this has been done, petitioner
would not have secured appointment in the year 2000. He
reminds this court that petitioner is none other than the wife of the
manager.
5. Sri.V.A.Muhammed also points out the decision of this
court in Remya.R.Chandran v. D.E.O., Mavelikkara
(2005(1) KLT 702) wherein this court taken the view that the right
which must be determined with reference to the first of the year
and the fifth respondent become major on 16-05-2000 and
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therefore she is ineligible to be appointed to the vacancy which
arose on 14-02-2000 and she become eligible only on 01-01-2001.
6. To this, the answer of the learned counsel for the fifth
respondent is that the application filed by the sister of the fifth
respondent was pending and therefore there is no basis to grant
appointment to the petitioner. Thus the appointment of the
petitioner was effected by the manager only to raise a claim,
contends learned counsel for the fifth respondent and also the
learned Government Pleader. It is pointed out that first application
of the fifth respondent was on 15-01-2002, but the application in
the prescribed form was on 03-12-2002.
7. It is to be noted that the claim of the fifth respondent
was rejected by the manager vide Ext.P5. Two reasons are given.
Firstly it is stated that application was filed belatedly as the
application should have been submitted within two years of
attaining majority. The other reason given is that there is a Rule
51A claimant. This is in respect of the application dated
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3-12-2002. This was challenged. This court considered the matter
in regard to the reasoning in Ext.P5 that application is belated. It is
found that it is per se bad and application which the fifth
respondent had submitted on 03-12-2002 could not be said to be
belated. This view is reiterated in para 5. Therefore, the first
reason for rejecting the application of the fifth respondent cannot
hold good. Then the only reason given for rejecting the application
is that Rule 51 A will prevail over Rule 51B. The contention of
the learned counsel for the petitioner is that financial limit
mentioned in the Government order is not observed and the
petitioner is married and that her husband is a business man do not
appeal to me at all. The manager when he is considering the claim
under Rule 51B is a statutory authority. He cannot be permitted to
raise new reasons not stated in the order. It is not stated in Ext.P5
order that the application is rejected on the ground that the
financial limit is not fulfilled. Therefore, I reject the argument of
the learned counsel for the petitioner and the Manager that the
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financial limit indicated in the Government order is not satisfied.
The application dated 03-12-2002 is not rejected on any other
ground except the ground that claim under Rule 51A will prevail
over Rule 51B. In regard to this aspect, the first question to be
considered is whether the counsel for the fourth respondent is
correct in contending that in view of the date on which her father
died and the date on which petitioner is appointed , there can be no
Rule 51A claim in favour of the petitioner. This is not a case
where petitioner was appointed prior to the date of the death of the
fifth respondent’s father in 1997. The appointment against the
leave vacancy is on 14-02-2000, nearly three years thereafter. I am
of the view that having regard to the fact that fifth respondent’s
father died in the year 1997, fifth respondent had a claim under
Rule 51B to the next arising vacancy. Had it been a case where
there was a person having a rule 51A claim prior to the death of the
employee, certainly the principle in Deepthy Susan Jacob v. State
of Kerala ( 1996(2)KLT 1033) would apply and Rule 51A would
WPC NOs.24858 & 26516 of 2006
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prevail over Rule 51B. But the question then arises is what is the
effect of the actual facts in this case. This is a case where the fifth
respondent’s sister made an application and that application was
ultimately given up. Admittedly, the fifth respondent was not
qualified as on 01-01-2000 as she was a minor when the vacancy
was filled up by appointing the petitioner on 14-02-2000. The fifth
respondent would become major only in the year 2001. Sister
abandoned the claim in 2001 only. But vacancy was filled up by
appointing the petitioner on 14-02-2000. A perusal of Ext.P6
judgment would show that this court had held as follows:
” Whatever that be, I have already found
that the first reason mentioned in Ext.P6 for
rejecting the application submitted by the
petitioner on the ground of limitation is bad. The
question as to whether it was with the deliberate
objective of denying the petitioner of her claim of
compassionate employment that the appointment
during the period from 14-02-2000 till 18-4-2000
was given to the fourth respondent and the further
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aspect whether the manager was bound to inform
the petitioner and the other dependants of her late
father of the vacancy which arose on 14-02-2000
are all aspects which should be gone into afresh.
The period for preferring statutory appeals against
Ext.P6 is already over. Still, in the circumstances
of this case I permit the petitioner ot file a
revision before the Government under Rule 92 of
Chapter XIV A impugning the appointment given
to the fourth respondent. In the revision the
manager as well as the fourth respondent should
also be arrayed as respondents. If such a revision
is filed by the writ petitioner within one month
from today, the Government will hear the writ
petitioner, the 3rd respondent-manager, the 4th
respondent and the concerned official respondents
and take a decision on the revision petition in the
light of all relevant materials including the
binding judicial precedents which may be cited
before the Government by the writ petitioner, the
3rd respondent-manager and the 4th respondent. It
is made clear that I have not expressed any
opinion regarding the merits of the rival
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contentions. The approval presently granted to
the appointment given to the 4th respondent will
be subject to the result of the above revision
petition.”
8. It is pursuant to the same that Ext.P7 is passed. As
long as Ext.P1 approval stands, petitioner would become Rule 51A
claimant. The claim of the fifth respondent would have been on
the basis of superior claim she had as already indicated on the basis
of the death of the father in 1997. As long as Ext.P1 is allowed to
stand, the contention based on Rule 51A by the petitioner may
have to be considered. It is not clear from the order whether the
approval of appointment as evident from Ext.P1 is set aside. In
fact it is clear from Ext.P7order that fifth respondent is entitled to
approval from 01-06-2003. No doubt learned counsel for the fifth
respondent would point out that there is discussion in Ext.P7 about
the appointment in the year 2000. There is reference to the manger
concealing facts before the educational authorities while declaring
that there is no Rule 51A claimant or Rule 51B claimant awaiting
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appointment. It is further stated that DEO should not have given
approval to the appointment on 06-01-2004 as he is aware that
petitioner had already made a claim for appointment under Rule
51B. But I find that Ext.P1 is not actually interfered with as such.
As already indicated as long as Ext.P1 is allowed to stand it may be
open to the petitioner to contend that she has become a Rule 51A
claimant and in view of the law declared by this court when there
is conflict between Rule 51A and Rule 51B, Rule 51A will
prevail. In fact, in Ext.P5 also the only reason for rejecting the
claim of the fifth respondent is that there is 51A claimant.
Therefore, this was the aspect which should have been specifically
dealt with. I do not think that this aspect has been dealt with as
such.
9. In such circumstances, Ext.P7 cannot be sustained.
Accordingly, writ petitions are allowed. Ext.P7 in both the cases
are quashed.
10. In view of the urgency expressed by the fifth
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respondent, petitioners in both the cases and the fifth respondent
will be present either personally or through representative before
the first respondent on 28/02/2007 at 11:00 a.m. and the first
respondent will consider and take a decision in accordance with
law within a period of one month thereafter. It is not necessary for
the first respondent to issue notice to the parties.
Writ petitions are allowed.
K.M.JOSEPH
JUDGE
sv.
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