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2000 DIGILAW 353 (KER)

Laiju v. Deputy Director of Education

2000-07-13

D.SREEDEVI

body2000
Judgment :- D. Sreedevi, J. C.M.P. 1534/2000 has been filed by respondents 3 to 5 in the Writ Petition to review the order on C.M.P. No. 31059/1999 and to direct the respondents to consider the claim of the petitioners within one month from today and to order consideration of the petition along with the Original Petition. 2. Heard both sides. As the counsel for both sides are ready to argue the main Writ Petition, the Original Petition itself was heard. C.M.P. 31059/1999 was filed for an interim order directing the respondents to consider the right of the petitioner for appointment as Attender in accordance with law in the light of the decision reported in Gopalakrishnan Nair v. D.E.O., 1998 (1) KLT 644. This Court granted an interim order directing the respondents to consider the claim of the petitioner within two months from the date of receipt of the copy of order. The third respondent filed C.M.P. 1534 of 1999 to review the said order and to consider the claim of the petitioners therein within one month and to order consideration of the petition along with the Original Petition. 3. The petitioner was appointed as Attender in Chempakassery Teachers' Training Institute in a leave vacancy for the period from 21.4.1998 to 29.11.1998 under Ext. P1. Ext. P1 appointment was approved by the District Educational Officer, Kollam. Chempakassery T.T.I., High School, U.P. School and L.P. School are under the same Corporate Educational Agency. The management of the schools in being run by respondents 3 and 4 as Joint Managers as there is dispute regarding the management of the schools. Ext. P1 appointment was made by the Joint Managers. 4. The 5th respondent has also approved service as L.D. Clerk in the Chempakassery High School, Boothakulam for the period from 12.1.1996 to 5.3.1996 under Ext. P2. 5. A regular vacancy of Attender arose with effect from 1.5.1999 in Chempakassery T.T.I, due to the retirement of K. Janardhanan Pillai on 30.4.1999. Respondents 3 and 4 appointed the 5th respondent, who is the daughter of the third respondent as Attender in the said vacancy. The petitioner is the rightful claimant to get appointment, being a claimant under R.51A Chapter XFV-A of the Kerala Education Rules. According to the petitioner, the 5th respondent cannot be considered to be a R.51A claimant for the post of Attender, since her approved service was only as an L.D. Clerk. The petitioner is the rightful claimant to get appointment, being a claimant under R.51A Chapter XFV-A of the Kerala Education Rules. According to the petitioner, the 5th respondent cannot be considered to be a R.51A claimant for the post of Attender, since her approved service was only as an L.D. Clerk. It is alleged that since the 5th respondent happened to be the daughter of the 3rd respondent, she was appointed as Attender in the regular vacancy. The appointment of the 5th respondent was not approved. The petitioner submitted representations to the Joint Managers, to appoint him in the regular vacancy that arose on 1.5.1999, under Exts. P4 and P5. No action has been taken on the representation. Therefore the petitioner has filed this Original Petition to issue a writ of mandamus declaring that the petitioner is entitled to get appointment as Attender in the vacancy arose on 1.5.1999; to issue a direction to respondents 1 and 2 to give the salary due to the petitioner as Attender for the period from 1.5.1999 till the actual date of appointment; to direct respondents 3 and 4 to give appointment to the petitioner as Attender after replacing the 5th respondent; and to issue necessary directions to respondents 3 and 4 to appoint the petitioner as Attender in the vacancy that arose on 1.5.1999 and to give other consequential benefits. 6. The petition is opposed by the 5th respondent. 7. Admittedly the petitioner and the 5th respondent are having approved service. The petitioner's service was as Attender, while the 5th respondent's service was as an L.D. Clerk. Admittedly a vacancy of Attender arose on 1.5.1999. According to the petitioner, he is the rightful claimant for the post under R.51A Chapter XPV-A of K.E.R. 8. Mr. T.M. Abdul Latiff, learned counsel for the contesting respondents submitted that the Original Petition itself is not maintainable as no writ will lie against the Manager of a private school. As against this, Mr. Sudhakara Prasad, learned counsel for the petitioner relied on the decision of this Court in O.P. 27497/1999. In that case, this Court held that under Art.226 of the Constitution writ can be issued against any person or authority and that it can be issued for the enforcement of any fundamental right and for any other purpose. As against this, Mr. Sudhakara Prasad, learned counsel for the petitioner relied on the decision of this Court in O.P. 27497/1999. In that case, this Court held that under Art.226 of the Constitution writ can be issued against any person or authority and that it can be issued for the enforcement of any fundamental right and for any other purpose. The Supreme Court in the decision reported in Andi Mukta Sadguru Shree Muktajee Vandas Swaml Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors. 1989 (2) SCC 691, dealt with the question whether a writ of mandamus could be issued against a private body. It was held that'any person or authority' performing public duty and owing positive obligation of the affected party is amenable to writ jurisdiction. It was also held that aided institutions, like Government institutions discharge public function by way of imparting education to students and the employment in such institutions, therefore, is not devoid of any public interest. Therefore, the Manager of an aided school can be said to be an authority performing public duty when making appointments to the school. Therefore, I repel the argument advanced by the learned counsel for the contesting respondents. 9. The next question that arises for consideration is whether the petitioner or the 5th respondent is the rightful claimant for the post of Attender in the in Chempakassery Teachers' Training Institute (T.T.I.). Mr. Latiff invited my attention to Chapter XXIV(A) of the Kerala Education Rules. The number of persons that may be appointed in the non-teaching establishment of aided schools are mentioned in R.1. They are two peons, one L.D. Clerk and Sweepers. The post of Attender is not there. In Higher Secondary Schools and Training Schools, one L.D. Clerk, one Attender and one Part-time Sweeper are the persons to be appointed in the non-teaching establishment. The qualification prescribed for the post of Attender in R.2(1) is "A pass in S.S.L.C. Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent". Relying on these two Rules, it is submitted that the post of Attender in the Training School can be filled up only by S.S.L.C. holders and there the Attender discharges the duty of an L.D. Clerk. Relying on these two Rules, it is submitted that the post of Attender in the Training School can be filled up only by S.S.L.C. holders and there the Attender discharges the duty of an L.D. Clerk. It is submitted for the 5th respondent that if the Clerk and the Attender are discharging the same duty, the Attender would not have been categorised as a separate class. Therefore, the argument that the Attender in the Training School is equivalent to the L.D. Clerk in other schools cannot be accepted as a correct one. R.51A of Chapter XIV-A K.E.R. reads as follows: "51A. Qualified teachers who are relieved as per R.49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency". This rule is made applicable to the non-teaching staff also as held by this Court in the decision reported in Manager, Vanneri High School v. C.P. Chandramathi, 1973 KLJ 235. The question regarding preferential right of a claimant has been decided by a Division Bench of this Court in the decision reported in Gopalakrishnan Nair v. D.E.O., 1988 (1) KLT 644. This Court held that for claiming preference under R.51A of Chapter XIV-A, there should be identity of the post. It is submitted that as there is no identity of post of L.D. Clerk and Attender, an L.D. Clerk cannot claim preference under R.51A of Chapter XTVA K.E.R. for the post of Attender. Mr. Latiff submitted that since there is a post of Attender in the T.T.I, and that is equivalent to L.D. Clerk in the other school, the question whether they are discharging the very same duty or not has to be left to be decided by the Educational authority. So, it is submitted that if they are discharging the same function, seniority is the guiding factor and hence the 5th respondent is entitled to be appointed as Attender. 10. The appointment of the 5th respondent was not approved by the District Educational Officer. Therefore, at this stage, I do not find any reason to accept the argument of Mr. Latiff to direct the Educational authority to decide whether the post of Attender in the Training Institute is equivalent to L.D. Clerk in other schools. 10. The appointment of the 5th respondent was not approved by the District Educational Officer. Therefore, at this stage, I do not find any reason to accept the argument of Mr. Latiff to direct the Educational authority to decide whether the post of Attender in the Training Institute is equivalent to L.D. Clerk in other schools. L.D. Clerk and Attender are included in two separate category of posts. Therefore, in the light of the decision reported in 1988 (1) KLT 644, the petitioner is the rightful claimant to be appointed to the post of Attender. 11. It is also submitted by the learned counsel for the contesting respondents that the petitioner has not exhausted his remedies before filing this Writ Petition. R.64 under Chapter XIV-A provides for appeal against the order of the Assistant Educational Officer to the District Educational Officer and against the order of the District Educational Officer to the Director in regard to any dispute between the Teacher and the Manager. Therefore, it is submitted that this Original Petition has to be dismissed as premature. 12. R.92 of Chapter XIV-A also provides revision to the Government against any order passed by a subordinate authority. The petitioner has already filed a representation to the Government; but so far it has not been disposed of. Therefore, the petitioner is entitled to file a Writ Petition before this Court. In the result, the Original Petition is allowed, declaring that the petitioner is entitled to get appointment as Attender in the vacancy that arose on 1.5.99 in the Chempakassery T.T.I. Respondents 1 and 2 are directed to issue necessary directions to respondents 3 and 4 to forthwith appoint the petitioner as Attender in the vacancy that arose on 1.5.1999 and the 3rd and 4th respondent shall give appointment to the petitioner as Attender after replacing the 5th respondent. Respondents 2 and 3 are also directed to pay the salary and consequential benefits due to the petitioner as Attender for the period from 1.5.1999 till actual date of appointment. C.M.P. 1534 of 2000 is allowed and Original petition is also disposed of as above.