{"id":100345,"date":"2007-02-14T00:00:00","date_gmt":"2007-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-shamshad-vs-the-state-of-kerala-on-14-february-2007"},"modified":"2018-10-12T03:42:30","modified_gmt":"2018-10-11T22:12:30","slug":"r-shamshad-vs-the-state-of-kerala-on-14-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-shamshad-vs-the-state-of-kerala-on-14-february-2007","title":{"rendered":"R.Shamshad vs The State Of Kerala on 14 February, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
R.Shamshad vs The State Of Kerala on 14 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 24858 of 2006(H)\n\n\n1. R.SHAMSHAD,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE STATE OF KERALA,\n                       ...       Respondent\n\n2. THE DIRECTOR OF PUBLIC INSTRUCTION,\n\n3. THE DISTRICT EDUCATIONAL OFFICER,\n\n4. THE MANAGER,\n\n5. SMT. ANJU S.S.,\n\n                For Petitioner  :SRI.V.A.MUHAMMED\n\n                For Respondent  :SRI.M.A.THOMAS KUTTY\n\nThe Hon'ble MR. Justice K.M.JOSEPH\n\n Dated :14\/02\/2007\n\n O R D E R\n                                K.M.JOSEPH, J.\n\n                   ------------------------------------------\n\n                W.P.(C).NOs.24858 & 26516 of 2006\n\n                  --------------------------------------------\n\n                  Dated this the 14th day of February, 2007\n\n\n\n                               JUDGMENT\n<\/pre>\n
      The issue involved in these cases are connected.  Hence they<\/p>\n
are disposed of through this common judgment.<\/p>\n
      By   Ext.P1   petitioner   in   W.P.(C)No.24858\/06   hereafter<\/p>\n
referred to as the petitioner  was appointed in a leave vacancy from<\/p>\n
14-02-2000   to   18-04-2000.     By   Ext.P2   petitioner   came   to   be<\/p>\n
appointed   against   a   regular   vacancy   of   Clerk   with   effect   from<\/p>\n
02-06-2003.  The fifth respondent preferred Ext.P3 petition stating<\/p>\n
that she is the daughter of Sri.C.Sasikumaran who was working as<\/p>\n
Headmaster in the school.   She points out that her father died on<\/p>\n
24-06-1997.  It is also pointed out that on 17-06-99, her sister had<\/p>\n
filed an application and since her sister married, her claim may be<\/p>\n
considered.  Ext.P3 is seen dated 03-12-2002.  This court directed<\/p>\n
the manager to consider the matter.  Pursuant to the said judgment,<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                          2<\/span><\/p>\n
Ext.P5  order  is  passed  by  the   manager  rejecting   the  claim  of   the<\/p>\n
fifth respondent.   Two reasons were given. Firstly it is stated that<\/p>\n
the   application   was   not   submitted   within   two   years   of   attaining<\/p>\n
majority.  Secondly, it is stated that there is a 51A claimant namely<\/p>\n
the petitioner in W.P.(C)No.24858\/06 who got approved service as<\/p>\n
evident   from   Ext.P1.     Reliance   is   placed   on   the   decision   of   this<\/p>\n
court   in      Deepthy   Susan   Jacob   v.   State   of   Kerala<\/a><\/p>\n
(1996(2)KLT   1033).     Fifth   respondent   approached   this   court<\/p>\n
challenging the same and it culminated in Ext.P6 judgment.   This<\/p>\n
court   permitted   the   fifth   respondent   to   file   a   revision   before   the<\/p>\n
Government   under   Rule   92   of   Chapter   XIV   A   impugning   the<\/p>\n
appointment of the petitioner in W.P.(C)No.24858\/06.  Pursuant to<\/p>\n
the said judgment, Ext.P7 order is passed by the Government, by<\/p>\n
which  approval of the appointment given to the petitioner by the<\/p>\n
DEO was cancelled with effect from the date of   appointment of<\/p>\n
the   petitioner   as   clerk.     Fifth   respondent   was   directed   to   file   a<\/p>\n
revised application with all necessary documents stipulated in the<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                         3<\/span><\/p>\n
Government   order   before   the   Manager,   if   not   already   done.<\/p>\n
Ext.P8   is   the   order   produced   by   the   petitioner   to   show   that   the<\/p>\n
Government took a different stand.  Ext.P9 is produced to show the<\/p>\n
properties of the fifth respondent.   Ext.P10 is the judgment of the<\/p>\n
Division Bench of this court relied on by the petitioner.  Petitioner<\/p>\n
in   W.P.(C)No.26516\/06     is   the   manager   and   referred   to   as   the<\/p>\n
Manager.   He also impugns the same order.\n<\/p>\n<\/p>\n
      2.     I heard learned counsel appearing for the parties.<\/p>\n
      3.     It is contended by learned counsel  Sri.V.A.Muhammed<\/p>\n
appearing   on   behalf   of   the   petitioner     that   the   Government   has<\/p>\n
failed to take note of the dictum in Deepthy Susan Jacob v. State<\/p>\n
of Kerala<\/a> ( 1996(2)KLT 1033).  Petitioner is a Rule 51A claimant<\/p>\n
having  regard   to  the   approval  as  evident   from Ext.P1   order     and<\/p>\n
Rule   51A   claimant     will   prevail   over   rule   51B   claimant,   he<\/p>\n
contends.   He   would   further   submit   that   there   is   no   application<\/p>\n
given by the fifth respondent as contemplated in law.  He refers me<\/p>\n
to   Rule   51B   to   point   out   that   application   must   be   in   the   form<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                          4<\/span><\/p>\n
prescribed  as  per  the Government order.     He emphasises Ext.P8<\/p>\n
order   of   the   Government   wherein   Government   takes   a   stand   in<\/p>\n
accordance   with   law.     Further   he   would   submit   that   the<\/p>\n
Government order referred to in Rule 51B   insists upon  a ceiling<\/p>\n
limit of Rs.150,000   as  the   income from all  the   sources  including<\/p>\n
income from property.  He points out the properties standing in the<\/p>\n
name   of   the   fifth   respondent.     He   would   point   out   that   fifth<\/p>\n
respondent   was   married   and   her   husband   is   a   business   man   and<\/p>\n
therefore she is not entitled and this aspect was not considered by<\/p>\n
the Government.\n<\/p>\n<\/p>\n
       4.     Per   contra,   learned   counsel   for   the   fifth   respondent<\/p>\n
would contend that there is absolutely no basis for the claim based<\/p>\n
on  Rule   51A.     He   would   contend   that   the   right   under   Rule   51A<\/p>\n
could   not   be   pressed   into   service   for   the   reason   that   fifth<\/p>\n
respondent’s father  died  in  the  year 1997  and  the appointment of<\/p>\n
the   petitioner   was   in   the   year   2000.     If   only   the   petitioner   was<\/p>\n
appointed prior to the death of the father of the fifth respondent, he<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                         5<\/span><\/p>\n
would   have   become   a   Rule   51A   claimant,   he   contends   and   his<\/p>\n
claim would have prevailed over the right acquired upon the death<\/p>\n
of the fifth respondent father in the year 1997.   He would further<\/p>\n
point   out   the   decision   of   this   court   in  Baiju   Kumar   v.   DEO,<\/p>\n
Trivandrum ( 2003(3)KLT 240), wherein this court has taken the<\/p>\n
view that manager knows who are the dependants of the deceased<\/p>\n
employee   and   he   is   duty   bound   to   inform   the   dependants   and<\/p>\n
thereafter follow the procedure under Rule 51A.   He would point<\/p>\n
out that this has not been done and if this has been done, petitioner<\/p>\n
would   not   have   secured   appointment   in   the   year   2000.     He<\/p>\n
reminds this court that petitioner is none other than the wife of the<\/p>\n
manager.\n<\/p>\n<\/p>\n
      5.      Sri.V.A.Muhammed also points out the decision of this<\/p>\n
court   in          Remya.R.Chandran   v.   D.E.O.,   Mavelikkara<\/a><\/p>\n
(2005(1) KLT 702) wherein this court taken the view that the right<\/p>\n
which   must  be   determined   with   reference   to   the   first   of   the   year<\/p>\n
and   the   fifth   respondent   become   major   on   16-05-2000   and<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                           6<\/span><\/p>\n
therefore   she   is   ineligible   to   be   appointed   to   the   vacancy   which<\/p>\n
arose on  14-02-2000 and she become eligible only on 01-01-2001.<\/p>\n
       6.     To this, the answer of the learned counsel for the fifth<\/p>\n
respondent   is   that   the   application   filed   by   the   sister   of   the   fifth<\/p>\n
respondent   was   pending   and   therefore   there   is   no   basis   to   grant<\/p>\n
appointment   to   the   petitioner.     Thus   the   appointment   of   the<\/p>\n
petitioner   was   effected   by   the   manager   only   to   raise   a   claim,<\/p>\n
contends   learned   counsel   for   the   fifth   respondent   and   also   the<\/p>\n
learned Government Pleader.  It is pointed out that first application<\/p>\n
of the fifth  respondent was on 15-01-2002, but the application in<\/p>\n
the prescribed form was on 03-12-2002.\n<\/p>\n<\/p>\n
       7.     It  is  to   be   noted  that  the   claim of  the  fifth  respondent<\/p>\n
was rejected by the manager vide Ext.P5.  Two reasons are given.<\/p>\n
Firstly   it   is   stated   that   application   was   filed   belatedly   as   the<\/p>\n
application   should   have   been   submitted   within   two   years   of<\/p>\n
attaining majority.   The other reason given is that there is a Rule<\/p>\n
51A   claimant.     This   is   in   respect   of   the   application   dated<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                           7<\/span><\/p>\n
3-12-2002.  This was challenged.  This court considered the matter<\/p>\n
in regard to the reasoning in Ext.P5 that application is belated. It is<\/p>\n
found   that   it   is   per   se   bad   and   application   which   the   fifth<\/p>\n
respondent   had submitted on 03-12-2002 could not be said to be<\/p>\n
belated.     This   view   is   reiterated   in   para   5.     Therefore,   the   first<\/p>\n
reason for rejecting the application of the fifth respondent cannot<\/p>\n
hold good.  Then the only reason given for rejecting the application<\/p>\n
is that Rule 51 A will prevail over Rule 51B.   The contention of<\/p>\n
the   learned   counsel   for   the   petitioner   is   that   financial   limit<\/p>\n
mentioned   in   the   Government   order   is   not   observed   and   the<\/p>\n
petitioner is married and that her husband is a business man do not<\/p>\n
appeal to me at all.  The manager when he is considering the claim<\/p>\n
under Rule 51B is a statutory authority.  He cannot be permitted to<\/p>\n
raise new reasons not stated in the order.  It is not stated in Ext.P5<\/p>\n
order   that   the   application   is   rejected   on   the   ground   that   the<\/p>\n
financial limit is not fulfilled.   Therefore, I reject the argument of<\/p>\n
the   learned   counsel   for   the   petitioner   and   the   Manager   that   the<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                            8<\/span><\/p>\n
financial limit indicated  in the Government order is not satisfied.<\/p>\n
The   application   dated   03-12-2002   is   not     rejected   on   any   other<\/p>\n
ground except the ground that claim under Rule 51A will prevail<\/p>\n
over   Rule   51B.     In   regard   to   this   aspect,   the   first   question   to   be<\/p>\n
considered   is   whether   the   counsel   for   the   fourth   respondent   is<\/p>\n
correct in contending that in view of  the date on which her father<\/p>\n
died and the date on which petitioner is appointed , there can be no<\/p>\n
Rule   51A   claim   in   favour   of   the   petitioner.     This   is   not   a   case<\/p>\n
where petitioner was appointed prior to the date of the death of the<\/p>\n
fifth   respondent’s   father   in   1997.     The   appointment   against   the<\/p>\n
leave vacancy is on 14-02-2000, nearly three years thereafter.  I am<\/p>\n
of   the   view   that   having   regard   to   the   fact   that   fifth   respondent’s<\/p>\n
father   died   in   the   year   1997,   fifth   respondent   had   a   claim  under<\/p>\n
Rule 51B to the  next arising vacancy.   Had it been a case where<\/p>\n
there was a person having a rule 51A claim prior to the death of the<\/p>\n
employee, certainly the principle in Deepthy Susan Jacob v. State<\/p>\n
of Kerala<\/a> ( 1996(2)KLT 1033) would apply and Rule 51A would<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                       9<\/span><\/p>\n
prevail over  Rule 51B.   But the question then arises is what is the<\/p>\n
effect of the actual facts in this case.  This is a case where the fifth<\/p>\n
respondent’s   sister   made   an   application   and   that   application   was<\/p>\n
ultimately   given   up.     Admittedly,   the   fifth   respondent   was   not<\/p>\n
qualified as on 01-01-2000 as she was a minor when the vacancy<\/p>\n
was filled up by appointing the petitioner on 14-02-2000.  The fifth<\/p>\n
respondent   would   become   major   only   in   the   year   2001.     Sister<\/p>\n
abandoned the claim in 2001 only.   But vacancy was filled up by<\/p>\n
appointing   the   petitioner   on   14-02-2000.     A   perusal   of   Ext.P6<\/p>\n
judgment would show that this court had held as follows:<\/p>\n
                ”   Whatever   that   be,   I   have   already   found<\/p>\n
          that   the   first   reason   mentioned   in   Ext.P6   for<\/p>\n
          rejecting   the   application   submitted   by   the<\/p>\n
          petitioner on the ground of limitation is bad.  The<\/p>\n
          question as to whether it was with the deliberate<\/p>\n
          objective of denying the petitioner of her claim of<\/p>\n
          compassionate   employment  that   the   appointment<\/p>\n
          during the period from 14-02-2000 till 18-4-2000<\/p>\n
          was given to the fourth respondent and the further<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                       10<\/span><\/p>\n
         aspect whether the manager was bound to inform<\/p>\n
         the petitioner and the other dependants of her late<\/p>\n
         father of the vacancy which arose on 14-02-2000<\/p>\n
         are all aspects which should be gone into afresh.<\/p><\/blockquote>\n
         The period for preferring statutory appeals against<\/p>\n
         Ext.P6 is already over.  Still, in the circumstances<\/p>\n
         of   this   case   I   permit   the   petitioner   ot   file   a<\/p>\n
         revision before the Government under Rule 92 of<\/p>\n
         Chapter XIV A impugning the appointment given<\/p>\n
         to   the   fourth   respondent.     In   the   revision   the<\/p>\n
         manager as well as the fourth respondent should<\/p>\n
         also be arrayed as respondents.  If such a revision<\/p>\n
         is   filed   by   the   writ   petitioner   within   one   month<\/p>\n
         from   today,   the   Government   will   hear   the   writ<\/p>\n
         petitioner,   the   3rd  respondent-manager,   the   4th<\/p>\n
         respondent and the concerned official respondents<\/p>\n
         and take a decision on the revision petition in the<\/p>\n
         light   of   all   relevant   materials   including   the<\/p>\n
         binding   judicial   precedents   which   may   be   cited<\/p>\n
         before the Government by the writ petitioner, the<\/p>\n
         3rd respondent-manager and the 4th respondent.  It<\/p>\n
         is   made   clear   that   I   have   not   expressed   any<\/p>\n
         opinion   regarding   the   merits   of   the   rival<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                           11<\/span><\/p>\n
            contentions.     The   approval   presently   granted   to<\/p>\n
            the   appointment  given   to   the   4th  respondent   will<\/p>\n
            be   subject   to   the   result   of   the   above   revision<\/p>\n
            petition.”\n<\/p>\n<\/p>\n
      8.      It   is   pursuant   to   the   same   that   Ext.P7   is   passed.       As<\/p>\n
long as Ext.P1 approval stands, petitioner would become Rule 51A<\/p>\n
claimant.   The  claim of the  fifth  respondent would  have  been  on<\/p>\n
the basis of superior claim she had as already indicated on the basis<\/p>\n
of the death of the father in 1997.  As long as Ext.P1 is allowed to<\/p>\n
stand,   the   contention   based   on   Rule   51A   by   the   petitioner   may<\/p>\n
have to be considered.   It is not clear from the order whether the<\/p>\n
approval   of   appointment   as   evident   from  Ext.P1   is   set   aside.     In<\/p>\n
fact it is clear from Ext.P7order that fifth respondent is entitled to<\/p>\n
approval from 01-06-2003.  No doubt learned counsel for the fifth<\/p>\n
respondent would point out that there is discussion in Ext.P7 about<\/p>\n
the appointment in the year 2000.  There is reference to the manger<\/p>\n
concealing facts before the educational authorities while declaring<\/p>\n
that there is no Rule 51A claimant or Rule 51B claimant awaiting<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                           12<\/span><\/p>\n
appointment. It is further  stated  that  DEO should  not  have  given<\/p>\n
approval   to   the   appointment   on   06-01-2004   as   he   is   aware   that<\/p>\n
petitioner   had   already   made   a   claim  for   appointment   under   Rule<\/p>\n
51B.  But I find that Ext.P1 is not actually interfered with as such.<\/p>\n
As already indicated as long as Ext.P1 is allowed to stand it may be<\/p>\n
open to the petitioner to contend that she has become a Rule 51A<\/p>\n
claimant and in view of the law declared by this court when there<\/p>\n
is   conflict   between   Rule   51A   and   Rule   51B,     Rule   51A   will<\/p>\n
prevail.     In   fact,   in   Ext.P5   also   the   only   reason   for   rejecting   the<\/p>\n
claim   of   the   fifth   respondent   is   that   there   is   51A   claimant.<\/p>\n
Therefore, this was the aspect which should have been specifically<\/p>\n
dealt with.   I do not think  that this aspect has been dealt with as<\/p>\n
such.\n<\/p>\n<\/p>\n
       9.      In   such   circumstances,   Ext.P7   cannot   be   sustained.<\/p>\n
Accordingly, writ petitions are allowed.   Ext.P7 in both the cases<\/p>\n
are quashed.\n<\/p>\n<\/p>\n
        10.    In   view   of   the   urgency   expressed   by   the   fifth<\/p>\n
WPC NOs.24858 & 26516 of 2006<\/p>\n
                                         13<\/span><\/p>\n
respondent,  petitioners  in  both   the  cases and   the   fifth  respondent<\/p>\n
will be   present either personally or through representative before<\/p>\n
the   first   respondent   on   28\/02\/2007   at   11:00   a.m.   and   the   first<\/p>\n
respondent   will   consider   and   take   a   decision   in   accordance   with<\/p>\n
law within a period of one month thereafter.  It is not necessary for<\/p>\n
the first respondent to issue notice to the parties.<\/p>\n
       Writ petitions are allowed.\n<\/p>\n<\/p>\n
                                                                     K.M.JOSEPH<\/p>\n
                                                                                 JUDGE<\/p>\n
sv.\n<\/p>\n
\nWPC NOs.24858 & 26516 of 2006<\/p>\n
                                 14<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court R.Shamshad vs The State Of Kerala on 14 February, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 24858 of 2006(H) 1. R.SHAMSHAD, … Petitioner Vs 1. THE STATE OF KERALA, … Respondent 2. THE DIRECTOR OF PUBLIC INSTRUCTION, 3. THE DISTRICT EDUCATIONAL OFFICER, 4. THE MANAGER, 5. SMT. ANJU […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-100345","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nR.Shamshad vs The State Of Kerala on 14 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-shamshad-vs-the-state-of-kerala-on-14-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Shamshad vs The State Of Kerala on 14 February, 2007 - 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