The Court examined competing claims for educational vacancies between a teacher appointed under Rule 51A (temporary leave) and a successor claiming a permanent right under Rule 51B based on a deceased colleague. Rejecting delay arguments due to specific Government Orders.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE ANTONY DOMINIC
TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930
WP(C).No. 35068 of 2007(Y)
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PETITIONER(S):
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O.BEENA, W/O.PRAKASHAN, THAYYULLATHIL HOUSE, ULLIYERI (PO), VIA. QUILANDY, KOZHIKODE DISTRICT.
BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR
RESPONDENT(S):
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1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.
2. THE ASSISTANT EDUCATIONAL OFFICER, (PERAMPRA) NOW FUNCTIONING AT THAMARASSERY, QUILANDY, KOZHIKODE DISTRICT, PIN-673 523.
3. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT, PIN-673 106.
4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.
5. THE MANAGER, NADUVANNUR SOUTH AMUP SCHOOL, NADUVANNUR SOUTH, NADUVANNUR (PO), QUILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 614.
6. THE HEADMASTER, NADUVANNUR SOUTH AMUP SCHOOL, NADUVANNUR SOUTH, NADUVANNUR (PO), QUILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 614.
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7. MRS.C.BEENA, D/O.LATE GOPALAN NAIR, CHENNOOTTIL HOUSE, KOYAKKAD, ORAVIL (PO), VIA.NADUVANNUR, KOZHIKODE DISTRICT, PIN-673 614.
ADV. SRI.MILLU DANDAPANI FOR R.7 SRI.R.K.MURALEEDHARAN FOR R5 GOVT.PLEADER SMT.T.B.REMANI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2008, ALONG WITH WPC NO. 35088 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC NO.35068/07
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1: TRUE COPY OF ORDER DT 3.6.99 ISSUED BY THE DEO, VADAKARA.
EXT.P2: TRUE COPY OF JUDGMENT DT 9.11.2000 PASSED BY THIS HON'BLE COURT IN OPNO.6336/2000.
EXT.P3: TRUE COPY OF JUDGMENT DT 5.4.2001 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN WA NO.3386/2000.
EXT.P4: TRUE COPY OF ORDER DT.15.6.2001 ISSUED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION.
EXT.P5: TRUE COPY OF GOVERNMENT ORDER DT 27.1.2004 PASSED BY THE GOVERNMENT OF KERALA.
EXT.P6: TRUE COPY OF JUDGMENT DT 12.2.2007 PASSED BY THE DIVISIONBENCH OF THIS HON'BLE COURT IN WA NO.2660/2005.
EXT.P7: TRUE COPY OF ORDER DT 24.9.2007 PASSED BY THE GOVERNMENT OF KERALA.
EXTS. OF R7
EXT.R7(1): TRUE COPY OF THE CIRCULAR DT 4.5.2002 ISSUED BY THE GOVERNMENT.
EXT.R7(2): TRUE COPY OF JUDGMENT DT 22.1.2002 IN OPNO.8573/01.
EXT.R7(3): TRUE COPY OF THE JUDGMENT DT 30.9.2005 IN WP(c) NO.16798/2004.
//TRUE COPY//
P.A. TO JUDGE
ANTONY DOMINIC, J. ============== W.P.(C) NOs. 35068 & 35088 OF 2007 =========================
Dated this the 9th day of December, 2008
J U D G M E N T
In these writ petitions, what is under challenge is GO(Rt) No.4395/07/G.Edn dated 24/9/07 produced as Ext.P7 in WP(C) No.35068/07 and Ext.P3 in WP(C) No.35088/07.
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upon the same. Against Ext.P2 judgment, the 7th respondent filed WA No.3386/2000 resulting in Ext.P3, by which the Division Bench directed the Additional Director of Public Instructions to reconsider the claim of the petitioner.
It is understood that Smt.O.Beena was appointed from 5.10.1998 to 5.12.1998 at that school and she had worked at that school during this period and her appointment was also approved. But Smt.C.Beena being the 51B claimant, she is to be considered against the next arising vacancy as per existing rules. So the Assistant Education Officer, Perambra is directed to take steps to see that Smt.C.Beena is appointed in the next arising vacancy under the management concerned.
the Government in which Ext.P5 order was passed by the Government allowing the revision and directing the DEO, Vadakara to take necessary steps for appointing the 7th respondent in the leave vacancy to which the petitioner herein was appointed. Ext.P5 order was challenged before this Court in WP(C) No.16798/04. In the meanwhile, there arose a regular vacancy w.e.f. 31/3/2004 and the petitioner in WP(C) No.35088/07 was
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appointed against that vacancy w.e.f. 14/6/04. WP(C) No.16798/04 was disposed of by Ext.R7(3) judgment dated 30/9/05, in para 7, in so far as the petitioner in WP(C) No.35088/07 is concerned, it has been held as follows:
I have considered the rival submissions made before me, the rival pleadings and the decisions cited. Even though Smt.Smitha was issued notice from this Court, she has not entered appearance or filed pleadings. Under these circumstances, the appointment given to Smt.Smitha by the manager after the issues arose between Smt.C.Beena and Smt.O.Beena can be ignored and there will be a direction to the approving authority to reject any proposal for approving that appointment.
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On detailed examination of the matter it is seen that Smt.C.Beena will be the legitimate claimant for the permanent post of language teacher (Hindi) arose in the school on 31/3/2004. Otherwise Smt.O.Beena will be the legitimate claimant for the post, in view of the Rule 51 A claim acquired by her by virtue of her appointment in the leave vacancy from 5/10/98 to 5/12/98. In any case, Smt.Smitha M.K. cannot be appointed in the permanent vacancy arose on 31/3/2004, as there is Rule 51 B or Rule 51 A claimant in the school.
In the circumstances, the District Educational Officer, Vadakara/the Assistant Educational Officer, Perambra are directed to take urgent steps to appoint Smt.C.Beena, the legitimate 51 B claimant for the permanent post of language teacher (Hindi), if otherwise eligible as per rules.
It is challenging Ext.P7, the writ petition is filed.
question occurred on 17/9/77 and that even according to the Government, application was made on 15/7/98 and the vacancy against which claim is raised arose on 31/3/2004. It is stated that the claim made is belated, and could not have been recognised under Rule 51B of Chapter XIV A KER. Counsel made reference to Ext.R7(1), circular No.37833/J3/2001/G.Edn dated 4/5/2002, issued by the Government of Kerala and also the the judgments of the Division Bench in Corporate Manager, Diocese of Thrissur v. Jayanarayanan (2003(1) KLT S.N Case NO.45) and Sarada v. Pradeep Kumar (2004(3) KLT 1019) . It is also his
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contention that once the claim of the petitioner under Rule 51A has been recognised as done in Ext.P7, the claim of the 7th respondent under Rule 51B, cannot be recognised as according to learned counsel both cannot stand together.
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dated 24/5/99 providing a two year time frame for making claims under Rule 51B, Chapter XIVA KER. In so far as Ext.R7(1) is concerned, as is evident from Ext.R7(1), the Government themselves have ordered that in respect of claims made after 24/5/99, an application for employment assistance should be filed as provided in the Government order. It also clarifies that all pending application as on the date of issue of the Government order dated 24/5/99 shall be dealt with as per the earlier orders governing the matter. This necessarily means that in respect of applications made prior to 24/5/99, there is no time frame for making claim for appointment.
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makes it clear that the cases dealt with by the Division Bench pertain to applications made after the issue of the Government order referred to above. In the decision reported in Corporate Manager, Diocese of Thrissur v. Jayanarayanan (2003(1) KLT S.N.Case No.45) referred to above, the first sentence itself says that the application was not submitted within two years from the date of death of the deceased. This evidently has to be understood in the context of the Government order dated 24/5/99. Similar is the case with the judgment reported in Sarada v. Pradeep Kumar (2004(3) KLT 1019) . There also, as is evident from para 12 and 13, the Division Bench has heavily relied on the Government order dated 24/5/99, fixing two years time limit. If that be so, these two judgments, being rendered in the context of the situation subsequent to the Government order referred to above are not of any relevance in so far as this case is concerned.
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liable to be upheld.
For the above reasons, both the writ petitions are only to be dismissed and I do so.
ANTONY DOMINIC, JUDGE
Rp
3 issues framed by the court
Whether a belated claim under Rule 51B KER under KERALA GO (18/99) despite a circular stating a two-year time-frame is maintainable.
Whether a confirmed right acquired under Rule 51B prior to a petitioner's temporary appointment under Rule 51A takes precedence.
Whether the petitioner's appointment in a regular vacancy should stand when there is an existing dispute over vacancies between her and another claimant.
Colour shows how this judgement treated each authority
Corporate ManagerExplained¶13
Corporate Manager, Diocese of Thrissur v. Jayanarayanan (2003(1) KLT S.N Case NO.45)
O. Beena
Mrs. C. Beena
The State of Kerala
Assistant Educational Officer
District Educational Officer
Director of Public Instruction
Anton Dominic
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
