IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15378 of 2008(E)
1. V.P.SHEEJA, WIFE OF VINOD.V.C.,
... Petitioner
Vs
1. THE EXECUTIVE OFFICER,
... Respondent
2. SMT.JAYASREE,
3. THE MANAGING TRUSTEE,
4. THE COMMISSIONER,
5. THE STATE OF KERALA,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :24/07/2008
O R D E R
V. GIRI, J.
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WP(C).NO.15378 of 2008
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Dated this the 24th day of July, 2008.
JUDGMENT
The petitioner is working as Vazhipadu Clerk in the
Thalassery Sree Ramaswamy Temple. The second respondent’s
husband was employed in the same capacity and while so, he
died in harness. The second respondent was then appointed as
daily wage basis as evidenced by Ext.P1. She resigned from her
temporary appointment. By Ext.P3 resolution of the Board of
Trustees dated 6.10.1998 her resignation was decided to be
accepted. The petitioner was appointed on daily wage basis as
evidenced by Ext.P4 order dated 9.10.1998. She was then
appointed in the scale of Rs.900-20-1100-25-1300-30-1450 as
evidenced by Ext.P5. That also shows that the appointment was
provisional. The petitioner continued in service. In the
meanwhile pursuant to a communication issued by the
Commissioner, the second respondent was appointed as
L.D.Clerk with effect from 16.5.2001 on a permanent basis on
the strength of the fact that she was appointed under the dying
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in harness scheme. This is evidenced by Exts.P8 and P10.
While so, a vacancy of U.D.Clerk arose in the temple and the
second respondent was appointed in the said vacancy. This
was challenged by the petitioner before the Commissioner. But
the same was rejected as evidenced by Ext.P12 order. It has
been affirmed by the Government in exercise of it’s revisional
powers as evidenced by Ext.P15 order. Ext.P15 is under challenge
in this writ petition.
2. Counter affidavits have been filed by the second
respondent as also by the Executive officer, the first respondent.
I heard learned counsel for the petitioner Sri.Sathyanatha
Menon, Sri. K.V.Sohan, Sri.R.Surendran, learned counsel for the
contesting responents and the learned senior Government
Pleader Sri. Nandakumar.
3. What is to be noted in the outset is that the second
respondent had a claim to be appointed under the compassionate
appointment scheme and even originally she ought to have been
appointed against a permanent vacancy. It is not known why she
was originally appointed on a provisional basis. It seems that
there was a ban on appointment at that point of time. I do not
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think that the ban would have comprehended appointment under
the dying in harness scheme. Be that as it may, the second
respondent was appointed originally on a provisional basis. She
resigned and she was later appointed as evidenced by Ext.P10 on
a permanent basis. It seems that in the meanwhile the petitioner
was appointed on a provisional basis and the petitioner
continued in the said post. There is no material on record to
show that the petitioner was appointed against a regular
vacancy or on a permanent basis at any point of time. But it is
a fact that the petitioner has continued in service without any
break as such and therefore to that extent it might be open to
the petitioner to say that she is continuing in service on a regular
basis. But it will be difficult for the petitioner to claim seniority
over the second respondent in as much as there is no material to
show that the petitioner was appointed on a permanent basis
as Vazhipad Clerk prior to the date on which the second
respondent is appointed on a permanent basis. Therefore even
without going into the question as to whether the petitioner was
absorbed into regular service at any point of time, it is atleast
necessary to state that the petitioner cannot claim any seniority
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over the second respondent. I find it difficult to accept the contra
version suggested by the Commissioner in Ext.P19 produced
along with IA.No.9406/2008. In the circumstances the action
taken by the Board of Trustees in appointing the second
respondent as U.D.clerk is regular and proper and the affirmation
of the same by the Government as per Ext.P15 order does not
warrant any interference by this court. I do not find any ground
to interfere with the impugned order in this writ petition. In the
result, the writ petition is dismissed. At the same time in the
facts and circumstances of the case the Trustee Board shall pass
orders as regards the regular absorption of the petitioner into
service but without prejudice to the right of the second
respondent in that regard.
V. GIRI, JUDGE.
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