IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28164 of 2010(U)
1. SIDHARTHUL MUNTHAHA
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION
3. THE ASSISTANT EDUCATIONAL OFFICER
4. SRI.T.P.ABDUL SALAM
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :SRI.T.C.SURESH MENON
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :04/02/2011
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P.(C)No.28164 & 28482 Of 2010
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DATED THIS THE 4th DAY OF FEBRUARY, 2011
J U D G M E N T
The petitioner in W.P.(C)No.28164/10 is a claimant under
Rule 51A of Chapter XIV-A of KER. The prayer is for a direction
to implement the order passed by the Government as per Exhibit
P1, whereby the Manager is directed to appoint the said
petitioner as Arabic Teacher forthwith, if a sanctioned post of
Arabic is available in the School. The said order is under
challenge by the 4th respondent-Manager in the said Writ Petition,
in W.P.(C)No.28482/10.
2. The learned counsel for the petitioner in W.P.(C)
No.28482/10 contends that the 4th respondent is a retrenched
teacher and the Manager appointed another person in the
vacancy to which the 4th respondent claimed the benefit of Rule
51A of Chapter XIV-A of KER. The main ground raised in the Writ
Petition is that even though the 1st respondent had sent a notice
of hearing to him, the same was not received by him.
According to the learned counsel for the petitioner, the order
Exhibit P5 was passed without hearing the said petitioner.
W.P.(C)Nos28164 & 28482/10. -2-
3. The learned Government Pleader and the learned
counsel appearing for the petitioner in W.P.(C)No.28164/10
submitted that the petitioner in W.P.(C)No.28482/10 was actually
served with a notice through registered post. The fact that the
registered notice was served is admitted by the learned counsel
for the petitioner therein also. It is pointed out that because of
the illness of the daughter, he could not avail of the opportunity
and appear at the time of hearing.
4. The short question is whether the petitioner in W.P.(C)
No.28164/10 is a claimant under Rule 51A of Chapter XIV-A KER.
Evidently, the said petitioner was appointed initially as an LPSA
as per order dated 11.10.2004 in a resignation vacancy. The
said appointment was approved with effect from 1.2.2006 by the
Assistant Educational Officer, Manjeri by order dated 14.3.2007
and hence the claim under Rule 51A is well recognised.
5. The retrenchment occurred when the AEO revised the
staff fixation order for the year 2006-07.
6. In the light of the above factual circumstances, it
cannot be disputed that the said petitioner is a valid claimant
under Rule 51A. If that be so, the person to whom the
W.P.(C)Nos28164 & 28482/10. -3-
petitioner-Manager in W.P.(C)No.28482/10 has given
appointment cannot have a superior claim over him. She is the
5th respondent in W.P.(C)No.28164/10. The Government,
therefore, after considering all the aspects found in Exhibit P1
order that the petitioner in W.P.(C)No.28164/10 is qualified to be
appointed to the said post in Arabic and one vacancy was
available in the school later. Accordingly, it is found that she is
the eligible claimant. Therefore, unless and until the petitioner in
W.P.(C)No.28482/10 succeeds in disputing the claim by any
known process of law, it cannot be said that the view taken by
the Government is irrational or unreasonable or is against the
statute. But as found already the claimant under Rule 51A is
liable to be appointed in the fresh vacancy filled up by the
Manager.
7. In that view of the matter, even though the learned
counsel for the petitioner in W.P.(C)No.28482/10 prayed for an
opportunity to have a fresh hearing before the Government, I am
not satisfied that the said request need be acceded to in the light
of the fact that from the proven facts, no other conclusion is
possible and a futile writ need not be issued. Exhibit P1 produced
W.P.(C)Nos28164 & 28482/10. -4-
in W.P.(C)No.28164/10 is a reasoned order. The claimant under
Rule 51A of Chapter XIV-A is thus entitled to be appointed in the
vacancy which arose in the school.
8. The learned counsel for the petitioner in W.P.(C)
No.28482/10 and the learned counsel for the 5th respondent in
W.P.(C)No.28164/10 submitted that a fresh vacancy will arise in
April 2011 and the Rule 51A claimant can be accommodated in
the said vacancy. Evidently, the claim under Rule 51A
supersedes any other claim by a fresh hand. Therefore, unless
and until the petitioner in W.P.(C)No.28164/10 agrees for such a
course, this Court will not be justified in acceding to the said
request also. Learned counsel for petitioner therein submitted
that his client is entitled for the first vacancy itself. Hence this
Court cannot accede to the said submission. But, evidently, if the
Manager is prepared to fill up the said vacancy, then the 5th
respondent in W.P.(C)No.28164/10 will be appointed.
9. In that view of the matter, W.P.(C)No.28164/10 is
allowed and W.P.(C)No.28482/10 is dismissed. The Manager will
appoint the petitioner in W.P.(C)No.28164/10 within a period of
two weeks. Consequential order for approval of the appointment
W.P.(C)Nos28164 & 28482/10. -5-
shall also be passed by the educational authorities concerned,
without delay. No costs.
T.R.RAMACHANDRAN NAIR, JUDGE.
dsn