FASALU RAHIMAN v. FULL TIME MENIAL (F.T.M) B.T.M.HIGHER SECONDARY SCHOOL, THURAYOOR PAYYOLI ANGADI P.O., KOZHIKODE DISTRICT.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935 WP(C).No. 17530 of 2013 (M) ---------------------------- PETITIONER(S): ----------------- FASALU RAHIMAN V. FULL TIME MENIAL (F.T.M) B.T.M.HIGHER SECONDARY SCHOOL, THURAYOOR PAYYOLI ANGADI P.O., KOZHIKODE DISTRICT. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ----------------- 1. THE MANAGER, B.T.M.HIGHER SECONDARY SCHOOL THURAYOOR, PAYYOLI ANGADI P.O. KOZHIKODE DISTRICT - 673 523. ## 2. REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY REGIONAL OFFICE, KOZHIKODE M.M.HIGHER SECONDARY SCHOOL, FRANCIS ROAD, KALLAYI PARAPPIL - 673 001. ## 3. MUFEED K., LAB ASSISTANT, B.T.M.HIGHER SECONDARY SCHOOL, THURAYOOR PAYYOLI ANGADI P.O., KOZHIKODE DISTRICT - 673 523. R2 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17530 of 2013 (M) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- - EXT.P-1: A TRUE COPY OF THE APPOINTMENT ORDER DATED 4.6.2012 AND THE APPROVAL OF THE DISTRICT EDUCATIONAL OFFICER DATED 8.5.2013. - EXT.P-2: TRUE COPY OF THE RELEVANT PAGES OF SERVICE BOOK DECLARATION PROBATION. - EXT.P-3: A TRUE COPY OF THE RELEVANT PORTION OF POST SANCTION ORDER G.O(MS)NO.165/2013/G.EDN DATED 15.5.2013 - EXT.P-4: A TRUE COPY OF THE PETITION DATED 30.5.2013 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. - EXT.P-5: A TRUE COPY OF THE OBJECTION DATED 20.6.2013 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. ## RESPONDENTS' EXHIBITS: NIL ------------------------------ // TRUE COPY // TKS P.S. TO JUDGE ## **“C.R”** ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.17530 OF 2013 ==========================** Dated this the 18[th] day of July, 2013 ## **JUDGMENT** The petitioner is working as a Full Time Menial in B.T.M.Higher Secondary School, Kozhikode on the strength of Ext.P1 order of appointment issued by the first respondent. Ext.P1 would reveal that the period of his appointment was from 4.6.2012 to 30.3.2014. Admittedly, the petitioner is still continuing in service under the first respondent. This writ petition has been filed on being aggrieved by the non-feasance on the part of the second respondent in considering Ext.P5 submitted by the petitioner raising grievances against the appointment of the third respondent as Lab Assistant alleging overlooking of his claim under Rule 51A of Chapter XIV-A of the Kerala Education Rules. 2. I have heard the learned counsel for the petitioner and the learned Government Pleader. True that the petitioner has raised **W.P.(C).17530/13** 2 grievances in Ext.P5 posing himself as a 51A claimant. Normally, this Court, in such circumstances, would direct that authority before whom it is pending to consider the same and pass appropriate orders. I ween that such a course of action is uncalled for as the issue involved is no more res integra and the settled position is against the petitioner. The question is whether the petitioner can claim a right under Rule 51A of Chapter XIV-A of the Kerala Education Rules in view of the undisputed facts. A bare perusal of Rule 51A would reveal that a claim under 51A can be put forth only by a teacher who was relieved from the service of the concerned educational authority either by virtue of Rule 49 or Rule 52 or on account of termination of vacancies. By virtue of Rule 7 of Chapter XXIV-B of the KER, the rules regarding appointment contained in Chapter XIV-A, KER shall mutatis mutandis apply to the non-teaching staff in aided schools. Therefore, Rule 51-A is certainly applicable to non-teaching staff of aided schools. But, a perusal of Rule 51-A, Chapter XIV-A, KER would reveal that the service of the concerned claimant at one point of **W.P.(C).17530/13** 3 time must have been terminated from the concerned educational agency on any of the grounds referable to Rule 51-A and that his/her appointment to the service of that educational agency must have been one approved by the concerned competent educational authority. In other words, in order to become a Rule 51A claimant, there must be a termination/relieve from service and the service put in must have been an approved service. In **Mini Antony v. District Educational Officer [2012 (1) KLT 927]** , this Court held thereunder that claim under Rule 51A would be available only if, on account of termination of vacancy held by concerned teacher, he/she is relieved from the school and if he/she continues in the school, the question of claiming rights under Rule 51A would not arise. It is thus obvious that in the case of person who is continuing in service under a particular school under a particular educational agency on the strength of approval to the appointment he/she cannot claim a right under Rule 51-A as such a person would become a claimant under Rule 51-A only on termination from a post after putting approved service in that post. At any rate, **W.P.(C).17530/13** 4 going by the said decision, there is no question of acquiring any right under Rule 51A during such continuance. Going by Ext.P1 order of appointment, the period of appointment would expire only on 30.3.2014 and admittedly, he is still continuing in service on the strength of Ext.P1 order of appointment and not yet relieved from its service or terminated from its service on a ground referable to Rule 51-A. The qualification and method of appointment of Lab Assistant is provided under Rules 4(6) and 6(6) respectively of Chapter XXXII, KER. Though the petitioner referred to those rules in the writ petition which provides for filling up 25 % of the total posts of Laboratory Assistants from among qualified class IV employees in the schools under the Educational Agency, the petitioner did not raise any claim by virtue of the same. There is no case for the petitioner that he was entitled to get appointment by transfer under 25% service quota either in Exts.P4 and P5 or in this writ petition. Evidently, all along his claim is only under Rule 51-A of Chapter XIV-A. Above all, no provision or authority has been brought to my attention that Rule 51- **W.P.(C).17530/13** 5 A of Chapter XIV-A, KER is applicable in the case of appointment against a post covered by Chapter XXXII, KER. Even if it is applicable in the light of the decision in **Mini Antony'** s case (supra), the petitioner cannot style himself as a Rule 51-A claimant. Since the petitioner has not, so far, taken up a contention that the third respondent was appointed against the 25% service quota ignoring his claim under the quota there is no scope for considering that question or for directing the respondents to consider that question. This Court cannot issue a futile writ in the circumstances. There is no case for the petitioner that he had been under the service of the first respondent's school on any previous occasion or she is having any approved service prior to his entry in the service of the first respondent on the strength of Ext.P1. When the specific case of the petitioner is that he commenced service for the first time under the educational agency only on the strength of Ext.P1 and he had no prior approval and taking into account the fact that the petitioner is still continuing in service on the strength of Ext.P1, I am of the view that in the light of **Mini** **W.P.(C).17530/13** 6 **Antony'** s case (supra), the contention of the petitioner that he is a 51A claimant and therefore, eligible to be appointed in preference to the third respondent cannot be upheld. In that view of the matter, this writ petition is liable to fail and accordingly, it is dismissed. **C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).17530/13** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **W.P.(C).17530/13** 8