Rule 51(B) KER; Manager, Deverkovil West LPS Vs. State [Kerala High Court, 27-10-2015]

Kerala Education Rules (KER) – Rule 51(B) of Chapter XIV A – Compassionate Appointment – Held, if once that right was exercised and left abandoned or lost, for their own fault, it cannot be exercised again, as the said right is not a persisting right for ever.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. HARILAL, J.

W.P. (C) Nos. 4672 & 6249 of 2012

Dated this the 27th day of October, 2015

PETITIONERS

THE MANGER, DEVERKOVIL WEST LPS, P.O, THALIYIL, KOZHIKODE AND ANOTHER

BY ADV. SRI.R.K.MURALEEDHARAN

RESPONDENTS

THE STATE OF KERALA SECRETARY TO GENERAL EDUCATION DEPARTMENT, TRIVANDRUM- 695001 AND 3 OTHERS

R3 BY ADV. SRI.V.A.MUHAMMED R3 BY ADV. SRI.K.E.HAMZA R1-R2 BY ADV. GOVERNMENT PLEADER, SRI. T.J. MICHEL

J U D G M E N T

The parties and the matter, in issues, involved in these writ petitions are common. Therefore, these writ petitions are heard together and disposed of accordingly. For convenience, the parties are referred to as shown in W.P(C) No.4672/12.

2. The petitioners in W.P(C) No.4672/12 are the respondents 4 and 5 in W.P(C) No.6249/12. The 1 st petitioner is the Manager of an aided school and the 2 nd petitioner was appointed as Lower Primary School Assistant (LPSA) by the 1 st petitioner with effect from 01.06.2011 onwards. The 3 rd respondent, who is the petitioner in W.P. (C) No. 6249/2012 is a claimant under

Rule 51(B) of Chapter XIV A of the Kerala Education Rules (KER).

The petitioners in W.P(C) No.4672/12 are aggrieved by the order passed by the 1st respondent in revision under Rule 92 declaring the entitlement of the 3 rd respondent for appointment under Rule 51(B) of Chapter XIV A of the KER; whereas, the 3 rd respondent is aggrieved by the non-implementation of the direction in the same order directing the first petitioner to appoint him as ‘LPSA’ in the vacancy in which the second petitioner is working from 2011 onwards.

3. The 3 rd respondent’s father Sri. K.P. Sankaran, while working as a Teacher in the school, died on 16.10.1997 and thereafter, in 2005, the 3 rd respondent was appointed on a regular vacancy, which arose on the resignation of one Mr.K.K.Manoj, with effect from 14.6.2004 onwards, on the basis of Ext.P1 representation submitted by the 3 rd respondent before the 2 nd petitioner with a copy to the 1 st petitioner, claiming compassionate appointment under Rule 51(B) of Chapter XIV A of the KER and that he has already passed TTC Examination. It was also stated in the representation that due to some technical reasons his certificate was withheld; but he approached the court and the court passed an order in his favour and the same could be produced on releasing the same. Considering the claim of the 3 rd respondent under Rule 51(B)of the KER, he was appointed with effect from 27.1.2005 onwards and he continued in the school by marking his attendance till 31.3.2005 and thereafter, he abstained from attending school, without informing the Head Master or the first petitioner. In the meanwhile, according to the petitioner, the 2 nd respondent rejected the proposal for approval of the 3 rd respondent for not producing the required certificate, by Ext.P3 order. Thus, the 3 rd respondent had abandoned the appointment, which was given by the first petitioner and accepted by him as per Ext.P2 for the reason that he failed to produce the required certificate to regularise his appointment in accordance with the relevant Rules.

4. Now, the 3 rd respondent, after five years of his initial appointment, without disclosing his earlier appointment, submitted Ext.P5 application in the prescribed format, claiming compassionate appointment under Rule 51(B) of Chapter XIV A of the KER. According to the first petitioner, he is not entitled to get the appointment, which arose against a leave vacancy on 25.10.2010 onwards, as he had already exercised his right under Rule 51(B) and he himself abandoned the same for his own fault. Secondly, he has attained majority in the year 2000 and after ten years, he has no right to seek appointment under Rule 51(B) of Chapter XIV A the KER against a vacancy which arose on 25.10.2010 onwards, in view of Rule 51(B) and the relevant Government Order dated 24.5.1999 thereunder.

5. Therefore, the 1 st petitioner appointed the 2nd petitioner in the leave vacancy arose in the school with effect from 25/10/2010 onwards by Ext.P6 order of appointment. The 3rd respondent submitted objection to the 2nd respondent against the appointment of the 2nd petitioner stating that the appointment is against his claim under Rule 51(B) of the KER. After hearing both parties, the 2nd respondent rejected the objection raised by the 3rd respondent, by Ext.P7 order, stating that the 1st petitioner had appointed him in the year 2005 and he has given up the appointment; and the 3 rd respondent cannot claim the right again. Challenging Ext.P7 order of the 2nd respondent, the 3rd respondent preferred a revision before the 1 st respondent and at the same time, approached this Court by filing W.P. (c) No.20358/11 and this Court, without issuing notice to the petitioners, disposed of the writ petition by directing the 1 st respondent to take a decision in the revision, after hearing the concerned parties. Pursuantly, the 1 st respondent heard all the parties and passed Ext.P9 order reversing the findings in Ext.P7 order and directing the 1 st petitioner to appoint the 3 rd respondent in the first vacancy that arose after filing a valid application by the 3 rd respondent. The legality and propriety of the said order is subjected to judicial review under Article 226 of the Constitution of India, in this Writ Petition.

6. The sequence of events narrated by the 3 rd respondent in W.P.(C) No.6249/12 are also the same and almost identical; but the disputed facts centers around the earlier appointment of the 3 rd respondent in the year 2005 only. The 3 rd respondent admitted that the 1 st petitioner appointed him as Lower Primary School Assistant from 27/1/2005 onwards and he continued in that post till 31/3/2005. According to him, after re-opening of the school, when the petitioner came to the school, the Head Master did not permit him to join duty stating that he has not acquired the requisite qualification i.e., Teachers’ Training Course. Then, the petitioner approached the 1 st petitioner and he also informed the 3 rd respondent that he will be appointed in the school after acquiring the requisite qualification considering the claim under Rule 51(B) of Chapter XIV A of the KER.

7. The grievance projected in W.P.(C) No: 6249/2012 is that, though, he was appointed as the Lower Primary School Assistant from 27/1/2005 onwards, he was not allowed to continue in that post by the 1 st petitioner for his own reasons. At the same time, he admitted that he obtained necessary qualification in the year 2009 only; that too, by Ext.P10 special order dated 17.09.2009 issued by the Government. According to him, the present vacancy, against which the 2 nd petitioner is appointed, is the first vacancy that arose after the death of his father. Therefore, he is entitled to be appointed in that post instead of the 2 nd petitioner. But, the 1 st petitioner appointed the 2 nd petitioner discarding his claim. Though, the 2 nd respondent rejected his claim, the 1 st respondent after hearing both sides, allowed the revision directing the 1 st petitioner to appoint the 3 rd respondent to the vacancy which arose after the receipt of the valid application. Therefore, the 1 st petitioner is liable to comply the direction in Ext.P9 order, without fail, and the same is liable to be implemented forthwith.

8. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents in extenso, in support of their rival claims raised under Rule 51(B) of Chapter XIV A of the KER.

9. The learned counsel for the petitioner mainly canvassed two points. Firstly, according to him, the 3 rd respondent has already exercised his right under Rule 51(B) of Chapter XIV A of the KER and he could not continue in the post for his own fault only. If that be so, he is not entitled to exercise the same right again. Secondly, it is contended that the father of the 3 rd respondent was died on 16/10/1997 and the right to exercise the benefit under Rule 51(B) of the KER is available to the dependent for two years only. In view of Rule 51(B) of the KER, G.O.(P) No.12/99/P&ARD dated 24/5/1999 issued thereunder. According to him, the time limit for preferring the application under Rule 51(B) will be two years from the date of death of the father of the 3 rd respondent and when he was a minor, the period would have been three years after attaining majority. He has attained majority in the year 2000. So, after 2003, he has no right to claim protection under Rule 51(B), if an application has not been filed within that period. The learned counsel further cited the decision of the Apex Court in