IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35068 of 2007(Y)
1. O.BEENA, W/O.PRAKASHAN,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. THE ASSISTANT EDUCATIONAL OFFICER,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE DIRECTOR OF PUBLIC INSTRUCTION,
5. THE MANAGER, NADUVANNUR SOUTH AMUP
6. THE HEADMASTER, NADUVANNUR SOUTH AMUP
7. MRS.C.BEENA, D/O.LATE GOPALAN NAIR,
For Petitioner :SRI.T.K.MARTHANDAN UNNITHAN
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :09/12/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOs. 35068 & 35088 OF 2007
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Dated this the 9th day of December, 2008
J U D G M E N T
In these writ petitions, what is under challenge is GO(Rt)
No.4395/07/G.Edn dated 24/9/07 produced as Ext.P7 in WP(C)
No.35068/07 and Ext.P3 in WP(C) No.35088/07.
2. For the sake of convenience, I shall refer to the facts and
documents as are mentioned in WP(C) No.35068/07.
3. The petitioner herein was appointed in a leave vacancy during
the period 5/10/98 to 5/12/98 in the 5th respondent school. Approval
sought for was rejected on the ground that the appointment was made
overlooking the claims of a 51B claimant, the 7th respondent herein.
Manager filed appeal to the DEO and that was allowed by Ext.P1 order.
4. The petitioner submits that apparently the 51B claimant, the
7th respondent herein, had filed an appeal against Ext.P1 to the DPI and
without notice or hearing, the same was allowed. For some reason which
was not disclosed to her, she was not paid salary for the period when she
worked and that claim was urged by the petitioner, by filing OP 6336/2000
resulting in Ext.P2 judgment. In that judgment, this Court directed the
petitioner to submit papers to the AEO and the AEO was directed to act
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upon the same. Against Ext.P2 judgment, the 7th respondent filed WA
No.3386/2000 resulting in Ext.P3, by which the Division Bench directed the
Additional Director of Public Instructions to reconsider the claim of the
petitioner.
5. Accordingly, the matter was reconsidered and Ext.P4 order
was rendered by the Additional Director of Public Instructions, the
operative portion of which reads as under:
It is understood that Smt.O.Beena was appointed from
5.10.1998 to 5.12.1998 at that school and she had worked
at that school during this period and her appointment was
also approved. But Smt.C.Beena being the 51B claimant,
she is to be considered against the next arising vacancy as
per existing rules. So the Assistant Education Officer,
Perambra is directed to take steps to see that Smt.C.Beena
is appointed in the next arising vacancy under the
management concerned.
6. Against Ext.P4 order, the 7th respondent filed a revision before
the Government in which Ext.P5 order was passed by the Government
allowing the revision and directing the DEO, Vadakara to take necessary
steps for appointing the 7th respondent in the leave vacancy to which the
petitioner herein was appointed. Ext.P5 order was challenged before this
Court in WP(C) No.16798/04. In the meanwhile, there arose a regular
vacancy w.e.f. 31/3/2004 and the petitioner in WP(C) No.35088/07 was
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appointed against that vacancy w.e.f. 14/6/04. WP(C) No.16798/04 was
disposed of by Ext.R7(3) judgment dated 30/9/05, in para 7, in so far as
the petitioner in WP(C) No.35088/07 is concerned, it has been held as
follows:
I have considered the rival submissions made before
me, the rival pleadings and the decisions cited. Even though
Smt.Smitha was issued notice from this Court, she has not
entered appearance or filed pleadings. Under these
circumstances, the appointment given to Smt.Smitha by the
manager after the issues arose between Smt.C.Beena and
Smt.O.Beena can be ignored and there will be a direction to
the approving authority to reject any proposal for approving
that appointment.
7. Proceeding further, the learned Judge disposed of the writ
petition directing reconsideration of the revision filed by the 7th respondent
and the Government was directed to hear the petitioner and the 7th
respondent and take a fresh decision on the revision. Against Ext.R7(3)
judgment, the petitioner in WP(C) No.35088/07 filed WA No.2660/05. That
writ appeal was disposed of by Ext.P6 judgment directing the Government
to pass fresh orders as directed in Ext.R7(3) judgment.
8. It was accordingly that the Government heard the parties and
Ext.P7 order dated 24/9/07 was passed. In Ext.P7, the Government held
as follows:
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On detailed examination of the matter it is seen that
Smt.C.Beena will be the legitimate claimant for the
permanent post of language teacher (Hindi) arose in the
school on 31/3/2004. Otherwise Smt.O.Beena will be the
legitimate claimant for the post, in view of the Rule 51 A
claim acquired by her by virtue of her appointment in the
leave vacancy from 5/10/98 to 5/12/98. In any case,
Smt.Smitha M.K. cannot be appointed in the permanent
vacancy arose on 31/3/2004, as there is Rule 51 B or Rule
51 A claimant in the school.
In the circumstances, the District Educational Officer,
Vadakara/the Assistant Educational Officer, Perambra are
directed to take urgent steps to appoint Smt.C.Beena, the
legitimate 51 B claimant for the permanent post of language
teacher (Hindi), if otherwise eligible as per rules.
It is challenging Ext.P7, the writ petition is filed.
9. Learned counsel for the petitioner contends that the death in
question occurred on 17/9/77 and that even according to the Government,
application was made on 15/7/98 and the vacancy against which claim is
raised arose on 31/3/2004. It is stated that the claim made is belated,
and could not have been recognised under Rule 51B of Chapter XIV A KER.
Counsel made reference to Ext.R7(1), circular No.37833/J3/2001/G.Edn
dated 4/5/2002, issued by the Government of Kerala and also the the
judgments of the Division Bench in Corporate Manager, Diocese of
Thrissur v. Jayanarayanan (2003(1) KLT S.N Case NO.45) and
Sarada v. Pradeep Kumar (2004(3) KLT 1019). It is also his
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contention that once the claim of the petitioner under Rule 51A has been
recognised as done in Ext.P7, the claim of the 7th respondent under Rule
51B, cannot be recognised as according to learned counsel both cannot
stand together.
10. Learned Government Pleader on the other hand would point
out that Ext.P7 is valid and proper. It is pointed out that the right of a
claimant is governed by Rule 51B of Chapter XIV A KER and that if the
claim is decided on the terms of the rule, the same cannot be rejected on
the ground of delay. It is stated that there is no substance in the plea
raised by the petitioner that the claim is belated.
11. As far as the contention of the learned counsel for the
petitioner that the claim of the 7th respondent is belated, it is true that
death occurred on 17/9/77 and application was filed on 15/7/98. It is also
true that the said application has been recognised in relation to a vacancy
which arose on 31/3/2004. As contended by the learned Government
Pleader, Rule 51B of Chapter XIV A KER does not make any provision that
the claim should be made within any time frame. However, the learned
counsel for the petitioner made reference to Ext.R7(1) Government
circular which refers to the earlier order vide GO(P) No.12/99/P&ARD
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dated 24/5/99 providing a two year time frame for making claims under
Rule 51B, Chapter XIVA KER. In so far as Ext.R7(1) is concerned, as is
evident from Ext.R7(1), the Government themselves have ordered that in
respect of claims made after 24/5/99, an application for employment
assistance should be filed as provided in the Government order. It also
clarifies that all pending application as on the date of issue of the
Government order dated 24/5/99 shall be dealt with as per the earlier
orders governing the matter. This necessarily means that in respect of
applications made prior to 24/5/99, there is no time frame for making
claim for appointment.
12. In so far as this case is concerned, as is evident from Ext.P7,
the application in question was made on 15/7/98. If that be so, that
application having been made prior to the Government order dated
24/5/99 has to be dealt with in accordance with the procedure that was
prevailing prior to the Government order. Logically, therefore, the time
frame incorporated in the Government order dated 24/5/99 is inapplicable
to the claim raised by the 7th respondent in her application dated 15/7/98.
13. True the judgments referred to above negatived claims under
Rule 51B on the ground of delay. A closer reading of those judgments,
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makes it clear that the cases dealt with by the Division Bench pertain to
applications made after the issue of the Government order referred to
above. In the decision reported in Corporate Manager, Diocese of
Thrissur v. Jayanarayanan (2003(1) KLT S.N.Case No.45) referred
to above, the first sentence itself says that the application was not
submitted within two years from the date of death of the deceased. This
evidently has to be understood in the context of the Government order
dated 24/5/99. Similar is the case with the judgment reported in Sarada
v. Pradeep Kumar (2004(3) KLT 1019). There also, as is evident from
para 12 and 13, the Division Bench has heavily relied on the Government
order dated 24/5/99, fixing two years time limit. If that be so, these two
judgments, being rendered in the context of the situation subsequent to
the Government order referred to above are not of any relevance in so far
as this case is concerned.
14. Admittedly, the claim of the 7th respondent pertains to a
period much prior to the service rendered by the petitioner. Therefore, the
claim of the 7th respondent having crystalised into a right under Rule 51B,
prior to the right of the petitioner under Rule 51A, has to take precedence
over the right of the petitioner. If that be so, the reasoning in Ext.P7 is
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liable to be upheld.
15. Now, coming to the claim of the petitioner in WP(C)
No.35088/07 is concerned, in my view, her fate is completely sealed by
Ext.R7(3) judgment in WP(C) No.16798/04, para 7 of which has been
extracted earlier. That judgment has become final. If that be so, the fact
that she was appointed w.e.f. 14/6/04 in the vacancy which arose on
31/3/2004 is of no consequence when the rival claims of the petitioner and
the 7th respondent in WP(C) No.35068/07 is concerned. WP(C)
No.35088/07 is only to be dismissed on that ground.
For the above reasons, both the writ petitions are only to be
dismissed and I do so.
ANTONY DOMINIC, JUDGE
Rp