IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12336 of 2007(R)
1. A.BEEPATHUTTY,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE ASSISTANT EDUCATIONAL OFFICER,
3. THE MANAGER,
4. THE ACCOUNTANT GENERAL,
For Petitioner :SRI.ABRAHAM VAKKANAL (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :06/06/2008
O R D E R
K.T. SANKARAN, J.
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W.P.(C) No. 12336 OF 2007
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Dated this the 6th June, 2008
J U D G M E N T
The reliefs prayed for in the Writ Petition are the following:
(i) Issue a writ of mandamus or other appropriate writ or
direction, commanding the 1st respondent to pass orders on
Exhibit P-4, P-7 and P8 directing to pay all her service benefits
including pension and pay for the period she was deliberately
and illegally kept out, within a specified period after hearing the
petitioner.
(ii) To declare that the petitioner is entitled to get salary and all
other service benefits for the period from 22.04.94 to 5.6.00
also;
(iii) To grant such other reliefs, as are just and proper in the
nature of this case.”
2. The petitioner was appointed as Arabic Teacher in the L.P. Section of the
third respondent’s school for various periods from 04.07.1978 onwards in the leave
vacancy of a teacher. The leave vacancy was originally for a period of five years and it
was extended to more than 15 years. However, that teacher did not join duty. The
case of the petitioner is that on 22.04.1994 the Manager sent out the petitioner.
Meanwhile, a retirement vacancy arose on 01.07.1995 in the L.P. Section. Instead of
appointing the petitioner, who was a rule 51A claimant, the Manager appointed a fresh
hand. The Educational Department did not grant approval for appointment of the fresh
hand. The Director of Public Instructions passed an order dated 01.02.1997 directing
the Manager to appoint the petitioner in the retirement vacancy which arose on
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01.07.1995. It was also mentioned in the order that if the Manager fails to obey the
directions, he will be disqualified to hold the post of Manager. O.P.No.3039 of 1997
was filed by the Manager challenging the order dated 01.02.1997 passed by the
Director of Public Instructions on the ground that the Manager was not heard while
passing the order dated 01.02.1997. The impugned order was set aside by this Court
and the Director of Public Instructions was directed to dispose of the matter afresh.
Thereafter, the Director of Public Instructions passed Ext.P1 order dated 31.12.1997
holding that the petitioner is a rule 51A claimant with requisite qualification and that the
Manager should have appointed her in the vacancy which arose on 01.07.1995. Though
the Manager challenged Ext. P1 order in O.P.No.2001 of 1998, it was dismissed as per
Ext.P2 judgment dated 28.09.1998. Ext.P2 order was challenged in W.A. 2274 of 1998
and the Writ Appeal was also dismissed. The Manager filed a Special Leave Petition
before the Supreme Court and the Supreme Court did not grant any order of stay. The
Manager was constrained to appoint the petitioner as per Ext.P3 order of appointment
dated 28.07.2000, which was approved by the Educational Department. The petitioner
retired from service on 30.04.2003.
3. Contending that the petitioner was illegally kept out for different spells of
periods from 29.09.1978 to 05.06.1979, 22.02.1984 to 19.08.1984 and from 22.04.1994
to 04.06.2000 by the Manager and claiming that the petitioner is entitled to all the
benefits and that her pensionary benefits are also to be reckoned with reference to the
rights available to her, the petitioner filed Ext. P4 representation before the first
respondent Ext.P4 was followed by Exts. P7 and P8 representations. Since those
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representations were not disposed of so far by the first respondent, this Writ Petition is
filed.
4. A counter affidavit is filed by the Assistant Educational Officer, Chavakkad.
The relevant portion in the counter affidavit is as follows:
“The stay was refused by the Supreme Court on 18.04.2000.
Manager was compelled to appoint the petitioner from
05.06.2000 in the retirement vacancy which had arisen from
01.07.1995. This appointment was approved by the second
respondent -(Ext.P3) and later the petitioner retired from service
on 30.04.2003.
The service book of the petitioner is not available in this
office. It is forwarded to Director of Public Instruction,
Thiruvananthapuram as per this office letter No.C/2689/03
dated 29.12.03. On verifying the previous files, it is noted that
the petitioner was out of service for the period from 29.09.1978
to 05.06.1979, 22.02.1984 to 19.08.1984 and from 22.04.1994
to 04.06.2000. Forgetting the consequential service benefits,
the petitioner filed petition on 24.05.2003 before the
Government (Ext. P4).
In order to consider the matter, the Director of Public
Instruction, has directed to this respondent to give remarks to
the petition dated 24.05.2003. The remarks have already been
submitted along with service book. It is now pending before the
Director of Public Instructions.
In the meantime petitioner filed a representation dated
30.07.06 before the first respondent requesting to grant her all
benefits from 22.04.1994 to 05.06.2000. No orders have been
received so far.
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Hence it is prayed that this Honourable Court may be
pleased to pass appropriate orders in the Writ Petition. ”
5. What are all the benefits to which the petitioner is entitled to is a matter to be
considered by the first respondent. For that purpose, it is necessary to dispose of
Exts. P4, P7 and P8 representations. From the counter affidavit, it is seen that some of
the records are with the Director of Public Instructions. The first respondent shall take
steps to re-construct the records to the extent possible. The petitioner would also co-
operate with the first respondent in re-constructing the records. After perusing the
relevant records and after hearing the petitioner, the first respondent has to take a
decision on Exts. P4, P7 and P8 representations.
6. Learned Government Pleader submitted that Ext. P3 order shows that the
petitioner was appointed with effect from 05.06.2000 onwards and that her appointment
was approved only for the period from 05.06.2000 onwards and therefore, the petitioner
is not entitled to claim benefits for the period from 01.07.1995. This is also a matter to
be considered by the first respondent while disposing of the matter. What action should
be taken against the Manager is also to be decided by the first respondent. The first
respondent shall make every endeavor to dispose of the matter within a period of six
months . Needless to say, the first respondent shall afford an opportunity of being heard
to the petitioner and the Manager before finally disposing of the matter.
In this Writ Petition, the third respondent-Manager was not personally served
with notice. Notice to the Manager was returned with the endorsement “addressee left
India”. Later service on the third respondent was completed by substituted service in
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the form of newspaper publication. If the Manager is not served with notice personally,
the first respondent would be entitled to effect the service in such other manner known
to law including substituted service by affixture.
The Writ Petition is disposed of as above.
K.T. SANKARAN,
JUDGE.
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