IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 14984 of 2003(H)
1. C.P.SUMA DEVI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.M.V.BOSE
For Respondent :SRI.V.A.MUHAMMED
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/10/2010
O R D E R
S. SIRI JAGAN, J.
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O.P. No. 14984 & W.P.(C) No.16867 of 2003
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Dated this the 28th day of October, 2010
J U D G M E N T
These two writ petitions relate to the same subject
matter and therefore are being heard and disposed of by
this common judgment. The rank of parties and exhibits
referred to in this judgment are as obtaining in O.P.
No.14984/2003 unless specifically stated otherwise. The
petitioner in O.P. No.14984/2003 was appointed as a Junior
Hindi Teacher in the Brahmanandodayam Sanskrit Upper
Primary School, Kalady, by the 3rd respondent manager, in a
regular vacancy which arose in the school. The
4th respondent challenged that appointment on the ground
that, she has a better claim for appointment to that post
under Rule 51B of Chapter XIV-A of the Kerala Education
Rules. That claim was on the ground that, the
4th respondent’s father was an employee of the school who
died in 1980. The 4th respondent became a major in 1983
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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and she stakes a claim for appointment under the
Compassionate Employment Scheme as provided under
Rule 51B. Originally the Government considered the matter
and decided in favour of the petitioner by Ext.P3 order. The
4th respondent challenged the same before this court by
filing O.P. No.21697/2001. In that original petition, this
court considered the question whether the 4th respondent
had filed an application within the period of limitation
prescribed under the relevant Government order in
existence at the relevant time relating to compassionate
employment. The 4th respondent claimed that, she filed two
applications, one in 1996 and the other in 2000. In Ext.P2
judgment this court entered a specific finding that, if the
4th respondent had submitted her application only in 2000,
then the same will be hit by the time limit prescribed under
the Government order dated 24.05.1999 and that if the
4th respondent had infact filed an application in 1996, then
as per the Government order which was in force at that
time there was no time limit prescribed and therefore her
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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application if filed in 1996 was liable to be considered for
compassionate employment notwithstanding the delay.
There was a dispute as to whether the 4th respondent had in
fact filed an application in 1996. Therefore in Ext.P2
judgment, this court directed the Government to conduct an
enquiry and decide whether an application was received
from the 4th respondent on 01.06.1996. Pursuant thereto,
the Government passed Ext.P5 order wherein there is no
finding that the 4th respondent had in fact filed an
application dated 01.06.1996, in the absence of any
evidence produced by the parties. Despite that finding, the
Government went on to consider whether in view of the
application dated 22.06.2000 filed by the 4th respondent, the
appointment of the petitioner on 23.8.2000 was in order and
came to the conclusion that, in view of the fact that, while
appointing the petitioner, the proper procedure had not
been complied with, the appointment of the petitioner is
bad and therefore the 4th respondent is entitled to
appointment to the vacancy to which the petitioner was
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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appointed on 23.08.2000. It was further directed that, the
petitioner be accommodated in the next suitable vacancy in
the school. The petitioner is challenging Ext.P5 order. The
4th respondent has filed W.P.(C) No.16867/2003 for
implementing Ext.P5 order in O.P. No.14984/2003.
2. I have considered the rival contentions of all
parties.
3. After hearing both sides, I am of opinion that, in
view of Ext.P2 judgment, the parties cannot go beyond the
specific findings and directions in Ext.P2 judgment. Ext.P2
judgment reads as follows:
“Claiming appointment under the dying-in-harness
Scheme in the third respondent’s school as Hindi Teacher, the
petitioner has filed this Original Petition. The brief facts
necessary for the disposal of the case are the following:
2. The petitioner’s father, late B. Sreenivasan Kartha
was a primary teacher in the third respondent’s school. He died
in harness in 1980. The petitioner who was a major (sic) at that
time attained majority in the year 1983. The petitioner submits
that she submitted an application for appointment under the
dying-in-harness scheme on 18.8.1993. In 1996 she passed
Rashtra Basha Praveen Examination and therefore became
qualified to be appointed as a Hindi Teacher. Thereupon, she
submitted another application dated 1.6.1996 claiming
appointment under the dying-in-harness scheme. During the
academic year 2000-2001 when a vacancy arose in the post of
Junior Hindi Teacher, she submitted Exts.P1 and P2
applications before the Manager. But, instead of appointing
her, the fourth respondent was appointed in that vacancy onO.P. No. 14984 & W.P.(C) No.16867 of 2003
-5-23.8.2000. The petitioner moved the Educational Officers
pointing out her grievance. Taking into account the objections
raised by her, the approval of appointment of the fourth
respondent was declined by the Assistant Educational Officer.
Therefore, the fourth respondent filed a revision before the
Government. This Court as per Ext.P4 Judgment directed the
Government to dispose of the revision filed by the 4th
respondent. After hearing both sides, the Government issued
Ext.P5 order rejecting the petitioner’s claim and ordering to
approve the appointment of the fourth respondent. Petitioner
challenges Ext.P5 on various grounds.
3. Respondents 3 and 4 have filed counter affidavits
supporting the impugned orders. The main point raised by both
of them is that the petitioner’s application is highly belated. It
is submitted that the petitioner has for the first time staked her
claim only in 2000. At the relevant time, the appointment under
the dying-in-harness scheme is governed by G.O. (P) No.12/99/P
& ARD dated 24.5.1999. As per Rule 51B, the relevant orders
then in force will apply mutatis mutandis for considering the
claim for appointment under the dying-in-harness scheme in
aided schools. If the petitioner has submitted her application
only in 2000, then the same will be hit by the time limit
prescribed under the said Government Order. The Government
proceeded on the footing that she had applied for the first time
only in the year 2000 and therefore her claim was rejected.
4. But the petitioner in the Original Petition has
pleaded that she has submitted an application for appointment
on 1.6.1996. If the said submission is correct, the G.O.
governing appointment under the dying-in-harness scheme in
the Government service at the relevant time was G.O. (P)
No.7/95/P & ARD dated 30.3.1995. As per the said order, there
was no time limit prescribed for submitting the application.
Therefore, if an application was submitted on 1.6.1996, the
same will be valid. Even if there are any defects, the same can
be cured and as per paragraph 3 of G.O. (P) No.12/99/P & ARD
dated 24.5.1999, applications received after the date of issue of
that order shall be disposed of in accordance with the said order
and pending applications on the date of issue of that order shall
be dealt with as per earlier orders. Therefore, if such an
application was submitted on 1.6.1996, the petitioner’s
application is liable to be considered ignoring the stipulation
regarding time limit. At the time of hearing, the petitioner took
time and filed Ext.P6 along with CMP No.16013/2002. It is a
representation submitted by her before the Government on
6.4.2001 in which it is pleaded, inter alia, that she had
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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submitted an application on 1.6.1996. The contesting
respondents have filed affidavits disputing the claim of the
petitioner in this regard. Therefore, I called for the Government
file leading to the issuance of Ext.P5. I found a copy of Ext.P6
in the Government file. Whether the petitioner has applied
before the issuance of the G.O. dated 24.5.1999 is a dispute
regarding a material fact which may change the course of the
case. The Government failed to consider this case of the
petitioner while issuing Ext.P5. Therefore, I remit the matter for
fresh consideration to the first respondent Government. The
government shall cause an enquiry to be made through the
concerned educational officer and find out the veracity of the
claim made by the petitioner in this regard and take a fresh
decision in accordance with law on the claim of the petitioner
for appointment under the dying in harness scheme. This being
the case of a claimant under the dying-in-harness scheme, I feel
that such a course is required in the interest of justice. I am not
quashing the approval of appointment of the fourth respondent.
But, it is ordered that the said approval will be subject to the
result of the order that may be passed by the Government as
directed above. The parties will be afforded reasonable
opportunity to present their case by the Government. In case
the petitioner’s claim is upheld and the fourth respondent faces
retrenchment, she will be accommodated in the next suitable
vacancy that may arise in the school in future.”
(underlining supplied)
From that judgment, it is very evident that, this court has
categorically held that, if the 4th respondent had submitted
an application only in 2000, then in view of the limitation
prescribed in Government order dated 24.05.1999 she is not
entitled to appointment under Rule 51 B of Chapter XIV of
K.E.R. It was further held that, if the 4th respondent had
infact filed an application on 01.06.1996, she is entitled to
be appointed in preference to the petitioner in the vacancy
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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as on 23.08.2000. Therefore, in view of Ext.P2 judgment,
the only question the Government could have considered in
law is as to whether the 4th respondent had in fact filed an
application for appointment under Rule 51 B on 01.06.1996.
If the finding was against the 4th respondent, going by the
judgment she is not entitled to any relief whatsoever. The
Government is also circumscribed by that judgment and
therefore the only question that the Government could have
considered is also as to whether the 4th respondent had in
fact filed an application on 01.06.1996. Ext.P5 order reads
thus:
“As per the G.O. read as Ist paper above, Government
ordered to approve the appointment of Smt. P.B. Sobhanadevi
as Junior Hindi Teacher with effect from 4.7.2000 and that of
Smt. C.P. Sumadevi as Hindi Teacher with effect from
23.8.2000 in B.S.U.P. Kalady, Ernakulam if it is otherwise in
order.
As per the Judgment read as 2nd paper above the Hon’ble
High Court remitted the matter to Government for fresh
consideration and directed to cause an enquiry to be made
through the concerned Educational Officer and find out the
veracity of the claim made by the petitioner, Smt. T.S. Sreekala
in the O.P. and to take a fresh decision in accordance with law
on the claim of the petitioner for appointment under the dying
in harness scheme.
Accordingly Govt. conducted an enquiry through the
Director of Public Instruction and a hearing was also allowed to
all the affected parties.
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The Enquiry report of the Director of Public Instruction
reveals that records relating appointments in L.P.S./U.P.S. are
not maintained by them. Whereas records relating
appointments in H.S. and H.S.S. are available there. Records
with effect from 1.7.2002 in respect of U.S.S. are available
there. Hence the enquiry officer at first expressed her inability
to arrive at a conclusion whether such an application dated
1.6.96 was received in the U.P.S.
On questioning the counter petitioner Smt. Sumadevi she
has stated that she was appointed in the school after filing an
application (no date mentioned) and by attending an interview
by the Manager during 1999.
On questioning the Manager about the date of submission
of application dt.1.6.96 he has stated that an application
dt.22.6.2000 of Smt. Sreekala was received and the same was
time barred and incomplete and hence rejected. Hence Smt.
Sumadevi was appointed as L.G. Hindi Teacher after an
interview during 2000.
Regarding the above statements of the Manager and
Sumadevi, the enquiry officer is of opinion that the Manager
has appointed Sumadevi as L.G. Hindi Teacher according to his
own personal interest without observing the rules and
regulations regarding the appointment of 51-B claimant. For
that purpose, the Manager has purposely rejected the
application of Smt. Sreekala.
In Order to substantiate the above opinion the Enquiry
Officer has pointed out that no records such an application
submitted by Smt. Suma devi details of minutes of interview etc.
are not available in that office. It is also pointed out that before
giving a reply to Sreekala regarding the defects in the
application dt.22.6.2000 Sumadevi was appointed.
The court direction is to find out the veracity of the claim
of the petitioner (Sreekala) that she filed an application
dt.1.6.96 for appointment under the Compassionate
Employment Scheme before the school authorities. The Enquiry
Officer has stated that in U.P.S. records are available only with
effect from 22.7.2002. Hence the enquiry officer was not in a
position to prove whether the application dt. 1.6.96 was
received there.
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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But regarding the application dt. 22.6.2000 submitted by
Sreekala and rejected by the Manager pointing out certain
defects in its, the enquiry Officer was able to prove that there
was favouritism on the part of the Manager, ie. when the
application dt. 22.6.2000 of Smt. Sreekala 51-B claimant was
received there, the Manager has appointed Sumadevi without
any application.
In the circumstances the Manager, B.S. U.P.S., Kalady is
directed to appoint Smt. T.S. Sreekala, D/o. B. Sreenivasan
Kartha “Tholali”, East Okkal, Perumbavoor, Ernakulam as Hindi
Teacher in the school with effect from 23.8.2000 and Smt. C.P.
Sumadevi, 4th respondent in the O.P. No.21697/01-G of High
Court should be accommodated in the next suitable vacancy
arise in the school. The Assistant Educational Officer,
Ankamaly is directed to take follow-up action in this regard.
The direction contained in the Judgment read as 2nd paper
above is thus compled (sic) with.”
As is evident from that order, the finding is that, there is no
evidence to show that, the 4th respondent had filed an
application on 01.06.1996. Despite the same, the
Government considered whether the Manager should have
appointed her considering her application dated
22.06.2000. In view of Ext.P2 judgment, the Government
had no competency to do so. It is strange to find that, after
finding that the petitioner’s appointment was without
following the procedure, the Government had directed the
Manager to appoint the 4th respondent on the basis of her
application dated 22.06.2000 which could only have been
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considered as an application otherwise than under Rule
51 B, in which case the Government should have held that,
that could also have been done only after complying with
the procedure prescribed. However, the Government has
straight away directed the Manager to appoint the
4th respondent which is in any event patently illegal.
According to me, insofar as by Ext.P2 judgment, this court
had confined the parties to the only question as to whether
the 4th respondent had filed an application on 01.06.1996, in
the absence of any evidence to show that such an
application was filed, the 4th respondent could not have
been given any relief whatsoever especially on the basis of
the application filed in 2000. This is so especially since
there was no challenge against the appointment of the
petitioner on the ground that proper procedure had not
been followed in that appointment. On the other hand all
along the only question canvassed was as to whether the
4th respondent was entitled to preferential appointment
under Rule 51B of Chapter XIVA of the K.E.R. Therefore,
O.P. No. 14984 & W.P.(C) No.16867 of 2003
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Ext.P5 is clearly vitiated. Accordingly the same is quashed.
Insofar as there is no evidence to show that the
4th respondent had filed any application prior to 2000, the
appointment of the petitioner on 23.8.2000 could not have
been interfered with, in view of Ext.P2 judgment. In the
above circumstances, Ext.P3 order dated 07.05.2001 passed
by the Government upholding the approval of the
appointment of the petitioner on 23.8.2000 would hold the
field and the petitioner would be entitled to all benefits
arising therefrom. Since I have set aside Ext.P5 order in
W.P.(C) No.16867/2003 for implementing Ext.P5 order, the
petitioner therein, who is the 4th respondent in the other
writ petition is not entitled to any reliefs. The learned
counsel for the petitioner in W.P.(C) No.16867/2003 makes
a fervent plea that, the petitioner’s right to seek
appointment in a subsequent vacancy may be reserved.
I am not expressing any opinion on the same and if the
4th respondent has any such right, it would be open to her to
agitate the same before the appropriate authority. In the
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result, O.P. No. No.14984/2003 is allowed and W.P.(C) No.
16867/2003 is disposed of with the above observation.
S. SIRI JAGAN
JUDGE
shg/