Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 728 (KER)

Dincy Davis W/o. Jogy Issac v. State Of Kerala

2025-03-25

HARISANKAR V.MENON

body2025
JUDGMENT : HARISANKAR V. MENON, J. The petitioner has filed the captioned writ petition seeking to challenge the appointment granted to her pursuant to Ext.P6 in the post of Full Time Menial (FTM) issued by the 5 th respondent Corporate Management, pointing out that she was entitled for consideration for appointment alteast from 2009 onwards. 2. The petitioner’s mother was working with the 5th respondent, Corporate Management, as an L.G. (Hindi) teacher. The petitioner’s mother is stated to have passed away on 12.09.1993. The petitioner attained majority on 27.06.2006 and submitted an application seeking compassionate appointment on 13.04.2007. The Manager refused to extend the appointment as above. The matter was considered by the Government pursuant to a revision petition filed by the petitioner. The Government found that insofar as the application filed did not contain the required documents, the rejection of the application by the 5 th respondent was in order. At the same time, it was further found that the Manager should have given a reasonable time for resubmitting the application. Therefore, the petitioner was directed to submit the revised application with the required documents within a time frame, further directing the Manager to appoint the petitioner “in the existing vacancy or arising vacancy if no vacancy is existing in the school”, provided the petitioner satisfies the conditions laid down in the Government Order referred to earlier. 3. The petitioner preferred W.P(C) No.3237 of 2012, seeking implementation of the above. The Manager filed W.P(C) No.7160 of 2012 seeking to challenge the same. This Court, by Ext.P2 judgment dated 21.10.2016, disposed of both the writ petitions by a common judgment. It was found by this Court in Ext.P2 judgment that the petitioner(claimant) was not qualified for the post of LPSA/UPSA either on the date of submission of the application or on the last date for submission of the application. At the same time, this Court further found that since the petitioner had passed SSLC and plus two qualifications within the time limit, she was qualified to hold the post of FTM, which comes within the zone of compassionate appointment scheme in the aided schools. At the same time, this Court further found that since the petitioner had passed SSLC and plus two qualifications within the time limit, she was qualified to hold the post of FTM, which comes within the zone of compassionate appointment scheme in the aided schools. In paragraph 37 of the judgment, this Court recorded the contention raised by the learned counsel for the petitioner as under: “Though the claimant was not qualified to hold the post of LPSA/UPSA within the time limit as per the compassionate scheme, the counsel for the claimant has now submitted that in view of these findings of this Court, this Court may direct the consideration of the claimant for appointment to the post of full time menial in the existing vacancy or in the arising vacancy and that the petitioner's consequential benefits in that regard should also be duly protected by this Court.” (Underlining supplied) Taking note of the contentions raised as above, this Court ultimately issued the following directions: “40. Accordingly, the following directions are issued: (i) The direction in the impugned revisional order as per G.O(Rt.)No.5081/ 2000/G.Edn. dated 17.11.2011 to the extent it orders that the claimant is eligible to be considered for the post of L.P.S.A./U.P.S.A. under the compassionate appointment scheme, is illegal and ultra vires. To that extent, the said direction will stand rescinded. (ii) The direction issued in the above referred impugned revisional order that “The Manager is directed to appoint the petitioner in the existing vacancy or arising vacancy, if no vacancy is existing, in the school, only if the applicant satisfies all conditions laid down in G.O(P) No.12/99/ dated 24.5.1999.. .... .” will stand upheld to the extent it is applicable to any posts other than L.P.S.A/U.P.S.A., for which the claimant had acquired all the qualifications as on 30.5.2009. .... .” will stand upheld to the extent it is applicable to any posts other than L.P.S.A/U.P.S.A., for which the claimant had acquired all the qualifications as on 30.5.2009. (iii) As the claimant contends that she had all the requisite qualifications for holding the post of Full Time Menial, even as on the date of submission of the claim in April, 2007, the respondent corporate manager will consider the eligibility of the claimant for appointment to the said post and examine whether she had attained all the requisite qualifications to hold that post at least as on 30.5.2009 (prescribed last date for submission of the application) and examine whether the claimant satisfies all the conditions laid down in G.O(Rt.)No.12/99/P&ARD dated 24.5.1999 and consider the claim of the claimant for appointment to the post of Full Time Menial in terms of the directions issued in the impugned revisional order and in terms of the provisions contained in Ext.R-1(a) scheme. In that regard, it is made clear that the income criteria that is to be reckoned by the manager is as to whether the claimant has satisfied the prescribed income limit criteria as on April 2007, in case the claimant has satisfied all the qualifications to hold the post of Full Time Menial at that time. Necessary steps in this regard should be completed by the corporate manager without much delay, at any rate, within a period of 3 months from the date of production of a certified copy of this judgment. (iv) The contentions raised by the claimant regarding consequential benefits are left open and it is for the claimant to agitate such claims as mentioned hereinabove, before the appropriate authorities, at the appropriate time.” Thus, this Court, by Ext.P2 judgment, found that the Manager is to consider the eligibility of the petitioner for appointment to the post of FTM and to examine whether the petitioner had obtained the requisite qualification atleast as on 30.05.2009. The judgment at Ext.P2 was not accepted by the Manager, who filed Writ Appeal No.111 of 2017. 4. On 20.02.2017, a Division Bench of this Court while admitting the appeal, issued the following order: “Admit. Government Pleader takes notice for the first respondent. Issue urgent notice by speed post to the second respondent. The judgment at Ext.P2 was not accepted by the Manager, who filed Writ Appeal No.111 of 2017. 4. On 20.02.2017, a Division Bench of this Court while admitting the appeal, issued the following order: “Admit. Government Pleader takes notice for the first respondent. Issue urgent notice by speed post to the second respondent. In the meantime, the appellant shall consider the application submitted by the second respondent evidenced by Exts.P3 and P3(a) as directed in Clause 3 of paragraph 40 of the judgment appealed against to a post to which the second respondent was qualified to be considered as on the last date on which she could have sought appointment under the Dying in Harness Scheme. She shall also be provisionally appointed, subject to further orders in this writ appeal.” The appeal stood finally disposed of on 21.12.2018 by a Division Bench of this Court as evidenced by Ext.P3 judgment. The findings in Ext.P2 judgment by the learned Single Judge were upheld. In paragraph 20 of the judgment while dismissing the appeal, the Division Bench of this Court noticing that the matter is quite old, issued the following further directions: “We direct the Manager to appoint her as expeditiously as possible at any rate within a period of two months from the date of receipt or production of a copy of this judgment.” (underlining supplied) The Manager further preferred a review petition - R.P.No.220 of 2019 in W.A.No.111 of 2017, seeking review of Ext.P3 judgment. Another Division Bench of this Court as per Ext.P4 order dated 29.07.2019, dismissed the review petition. Complaining that even on the face of all the above, the petitioner was not appointed, she preferred Cont.Case(C) No.1051 of 2019 and by Ext.P5 judgment dated 19.08.2019, the Contempt of Court Case was disposed of recording the subsequent development as above, however, permitting the petitioner to work out her remedies in accordance with law. It is in such circumstances, the petitioner has filed the captioned writ petition, seeking the following reliefs: i. Call for the records relating to Ext.P6, and set aside the original of the same to the extent it failed to grant appointment against the first arising vacancy occurred in the category of non-teaching staff after 27.06.2009 by way of a writ of certiorari or other appropriate writ or order. ii. ii. Issue a writ of mandamus or writ order or direction commanding the 5 th respondent to grant appointment to the petitioner as FTM against the existing vacancy under the management on 26.06.2009 or the first vacancy occurred thereafter and grant promotion as LPSA/UPSA subsequent to the appointment of the FTM against the first vacancy occurred after 26.06.2009 and HAS (Maths) occurred after 26.03.2014 in terms of Rule 43 Chapter XIVA KER. iii. To declare that the petitioner is entitled to get notional appointment as non teaching staff occurred against the 1 st vacancy that arose on or after 27.06.2009 under the management and Rule 43 promotion as UPSA/LPSA against the first vacancy occurred thereafter subsequent to 16.10.2009 and HSA(Maths) vacancy occurred after 25.03.2014. iv. Issue a writ of mandamus directing the respondents to grant appointment to the petitioner against the 1 st non-teaching vacancy that has arisen on or after 27.06.2009 and grant Rule 43 promotion as UPSA/LPSA vacancy occurred thereafter subsequent to 16.10.2009 and HSA(Maths) vacancy occurred after 25.03.2014. 5. I have heard Sri.Brijesh Mohan, the learned counsel for the petitioner, and Sri.Kurian George Kannanthanam, the learned senior counsel for the 5 th respondent Corporate Manager. 6. Sri.Brijesh Mohan would contend that the petitioner’s claim for appointment to the post of FTM has crystallized pursuant to her original application as well as Ext.P1 Government Order as modified by Ext.P2 judgment. In the light of the afore, he points out that the appointment by Ext.P6 order has taken place only on 29.07.2019, pursuant to Ext.P5 order. Therefore, according to him, the petitioner is to be atleast notionally directed to be appointed against the 1 st arising vacancy in the category of non-teaching staff after 27.06.2009 (3 years from maturity) as prayed for in the writ petition. He would rely on the judgment of this Court in Lekha K.R. v. District Educational Officer and Others [ 2015 (3) KLT 609 ] 7. He would rely on the judgment of this Court in Lekha K.R. v. District Educational Officer and Others [ 2015 (3) KLT 609 ] 7. Per contra, Sri.Kannanthanam, the learned senior counsel, would contend that the petitioner has claimed for appointment against the first arising vacancy after 27.06.2009, which cannot be accepted in view of the fact that the Government while issuing Ext.P1 has upheld the rejection of the application by the Manager, that the directions in Ex.P1 if at all was for appointment to the post of LPSA/UPSA under the dying in harness scheme, that the ultimate eligibility for appointment to the post of FTM has crystallized only when Ext.P2 judgment was issued on 21.10.2016, etc. He would also contend without prejudice to the contention raised as above, that even if the petitioner only seeks for notional benefits insofar as various other teachers are sought to be disturbed, without impleading them in the party array, the petitioner may not be entitled to maintain this writ petition. 8. I have considered the rival submissions as well as the connected records. 9. The facts are not in dispute. The short issue arising for consideration is the petitioner's entitlement to appointment to the post of FTM from an anterior date to Ext.P6 order. 10. As already noticed, the petitioner's application seeking appointment was originally rejected. It is against the afore rejection, the matter was taken to the Government leading to Ext.P1 order. The Government has categorically upheld the rejection of the application. It is thereafter, the petitioner was permitted to submit a revised application with relevant records within a time frame directing the petitioner to be appointed in the “existing vacancy or arising vacancy”. From this, it is quite clear that assuming that the petitioner becomes eligible for appointment to any post, that is only with reference to the revised application to be presented after the date of Ext.P1 Government Order – 17.11.2011. In the light of the afore, the prayers in the writ petition seeking appointment in the first arising vacancy after 27.06.2009, may not be available to the petitioner. 11. Sri.Kannathanam raised a technical contention that since the claim is with reference to the first vacancy to arise after 27.06.2009, in the light of the wordings of Ext.P1 Government order, the petitioner may not be entitled for any of the reliefs. 11. Sri.Kannathanam raised a technical contention that since the claim is with reference to the first vacancy to arise after 27.06.2009, in the light of the wordings of Ext.P1 Government order, the petitioner may not be entitled for any of the reliefs. On a literal consideration of the prayers in the writ petition, the contention raised deserves to be accepted. But I am of the opinion that the petitioner’s claim is not to be rejected on such a hypertechnical interpretation of the prayers in the writ petition. Sri.Brijesh would also contend that the petitioner was entitled to be considered in any of the subsequent vacancies reflected in Ext.R5(a) chart of regular vacancies of FTM under the 5 th respondent, to contend that the petitioner could have been accommodated in any of the vacancies to which appointments were effected after the date of Ext.P1 Government Order. At first blush, this contention appears attractive. 12. However, as already noticed, while rendering Ext.P2 judgment on 21.10.2016, in paragraph 37, the contention raised by the petitioner for consideration for appointment to the post of FTM in the “existing vacancy or in the arising vacancy” is specifically noticed. Therefore, Sri.Brijesh, may not be justified in staking a claim with reference to the date of Ext.P1 Government Order. 13. Sri.Brijesh Mohan would further contend that atleast the petitioner ought to have been appointed with reference to the vacancy which arose after Ext.P2, relying on the interim order of the Division Bench dated 20.02.2017 noticed earlier. However, I find that when the Division Bench finally rendered Ext.P3 judgment, in paragraph 20, the Manager was directed to make the appointment within a period of two months from the date of receipt or production of the copy of the judgment. Ext.P3 judgment was issued on 21.12.2018. If two months’ time is calculated from that date, the Manager had time till 20.02.2019 to make an appointment. The petitioner has been admittedly accommodated in the next vacancy as seen from Ext.R5(a) at serial No.43. Hence, I am of the opinion that the Manager has acted on the basis of the directions contained in Ext.P3 and the petitioner cannot have any grievance for that reason. 14. The petitioner has been admittedly accommodated in the next vacancy as seen from Ext.R5(a) at serial No.43. Hence, I am of the opinion that the Manager has acted on the basis of the directions contained in Ext.P3 and the petitioner cannot have any grievance for that reason. 14. Apart from the above, I notice that the petitioner is seeking notional benefits from a date anterior to Ext.P6 and that would definitely affect the rights of some other person/s who were employed with the 5 th respondent herein. The petitioner has not chosen to implead the affected person/s even after the requirement has been made clear through Ext.R5(a) by the 5 th respondent. In such circumstances, I am of the opinion that the petitioner is not entitled for any of the reliefs as prayed for in this writ petition. Resultantly, this writ petition would stand dismissed.