Manju Jose v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** **----------------------** **PETITIONER(S) --------------** **MANJU JOSE NON-VOCATIONAL TEACHER (JUNIOR) (CHEMISTRY), CHRIST KING VOCATIONAL HIGHER SECONDARY SCHOOL, VELLIMATTOM, RESIDING AT KUZHICKATTUMYALIL HOUSE, KARIMANNOOR, THODUPUZHA, IDUKKI DISTRICT, PIN 685 581.** **BY ADVS.SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.A.SHIBI** ## **RESPONDENT(S):** **---------------** **1. THE STATE OF KERALA GENERAL EDN (SPL. CELL) DEPT., GOVT.SECRETARIAT, (ANNEX), THIRUVANANTHAPURAM, PIN 695 001, REP. BY ITS SECRETARY.** **2. DIRECTOR VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPRUAM, 695 001.** **3. CORPORATE MANAGER CORPORATE EDUCATIONAL AGENCY OF SCHOOLS, DIOCESE OF VIJAYAPURAM, VIJAYAPURAM BISHOP'S HOUSE, P.B.NO.82, KOTTAYAM POST, PIN 686 001.** **4. MADHUKUTTAN PILLAI.K.B JYOTHY, THANNIKKOTTU VILLA, 1ST FLOOR, KUMARANASAN ROAD, KADAVANTHARA, KOCHI 682 020.** **R1 & 2 BY GOVERNMENT PLEADER SMT. G. RANJITHA** **R3 BY ADV. SRI.V.M.KURIAN** **R4 BY ADV. SRI.R.VINU RAJ** **R4 BY ADV. SRI.E.M.MURUGAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8027 of 2017 (C)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXT.P1 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 18.3.2010 WITH ENDORSEMENT OF APPROVAL FROM THE COMPETENT AUTHORITY EXT.P2 TRUE COPY OF THE ORDER DATED 1.4.2011 APPOINTING PETITIONER AGAINST THE REGULAR VACANCY EXT.P3 TRUE COPY OF THE ORDER DATED 3.4.2014 OF THE 2ND RESPONDENT REJECTING THE APPROVAL OF THE APPOINTMENT OF THE PETITIONER EXT.P4 TRUE COPY OF THE REVISION PETITION FILED UNDER 92, CHAPTER XIV A, KER AGAINST THE ORDER NO. E3/115719/13 DATED 3.4.2014 OF THE 2ND RESPONDENT, WITHOUT ITS ENCLOSURES EXT.P5 TRUE COPY OF THE JUDGMENT DATED 5.8.2016 IN WPC NO.26001/2016 EXT.P6 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 30.1.2017.** **RESPONDENT'S EXHIBITS ---------------------** ## **NIL** **// TRUE COPY //** **P.A. TO JUDGE** **sou.** ## **ANIL K. NARENDRAN, J** ----------------------------------------------------------W.P(C).No.8027 of 2017 ---------------------------------------------------------Dated this the 21[st] day of March, 2018 ## J U D G M E N T The petitioner who is working as Non-Vocational Teacher (Junior) (Chemistry) at Christ King Vocational Higher Secondary School, Velliamattom under the Corporate Management of the 3[rd] respondent has approached this Court in this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 30.01.2017 of the 1[st] respondent and seeking a declaration that she is entitled to the benefit of Rule 51A of Chapter XIVA of the Kerala Education Rules (for brevity 'KER') and her appointment to the vacancy of Smt.Jyothy S.Nair is regular and consequently, to direct respondents 1 to 4 to approve her appointment with effect from 1.4.2011 and release all consequential service benefits within a time limit to be fixed by this Court. 2. On 09.03.2017, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 and 2. This Court issued notice to respondents 3 and 4 by speed post. _**W.P(C).8027/17**_ 2 3. A counter affidavit has been filed by the 2[nd] respondent opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2 and also the learned counsel for the 4[th] respondent. Despite service of notice, none appears for the 3[rd] respondent Corporate Management. 5. The petitioner was appointed as Non-vocational Teacher (Junior) (Chemistry) by the 3[rd] respondent Corporate Manager, vide Ext.P1 order of appointment dated 18.03.2010, in the leave vacancy of Smt.Jyothy S.Nair, who took leave without allowance for the period from 16.06.2009 to 15.06.2014. The appointment of the petitioner was approved by the 2[nd] respondent Director of Vocational Higher Secondary Education, vide order dated 31.03.2011, with effect from 01.06.2010, as borne out from the endorsement to that effect made on Ext.P1 order of appointment. On 01.04.2011, Smt.Jyothy S.Nair expired and the vacancy became regular. The 3[rd] respondent Corporate Manager appointed the petitioner against the said regular vacancy vide Ext.P2 order of _**W.P(C).8027/17**_ 3 appointment dated 01.04.2011. Approval for the said appointment was declined by the 2[nd] respondent in Ext.P3 order dated 03.04.2014 on the ground that the claim of the petitioner for regular appointment in the vacancy that had arisen on account of the death of Smt.Jyothy S.Nair on 01.04.2011 cannot be considered without express relinquishment of claim in the said vacancy by the legal heirs of the deceased teacher. In such circumstances, the 3[rd] respondent Corporate Manager was directed to appoint the legal heirs of the deceased teacher, if applied for and qualified, in the place of the petitioner, as provided under Rule 51B of Chapter XIVA of KER. In their absence or relinquishment of their claim under Rule 51B of Chapter XIVA of KER, the 3[rd] respondent Corporate Manager was directed to reappoint the petitioner with effect from the date of relinquishment of claim by the legal heirs of the deceased teacher, if no legal heirs are available in a prospective date or with effect from the date of Ext.P3 order. 6. Ext.P3 order was under challenge in Ext.P4 revision petition filed by the petitioner under Rule 92 of Chapter XIVA of _**W.P(C).8027/17**_ 4 KER. The same ended in dismissal by Ext.P6 order dated 30.01.2017, wherein it was held that as per Rule 51B of Chapter XIVA of KER and the Government orders and circulars governing the field, the legal heirs of the deceased teacher has preferential claim over that vacancy. The time limit for preferring application under compassionate employment is two years from the date of death, and in the case of a minor the period will be three years after attaining majority. In such circumstances, the claim of the petitioner for regular appointment in the vacancy that had arisen on account of the death of Smt.Jyothy S.Nair on 01.04.2011 cannot be considered without express relinquishment of claim in the said vacancy by the legal heirs of the deceased teacher. 7. In the counter affidavit filed by the 2[nd] respondent, it is contended that the petitioner was initially appointed as NonVocational Teacher (Junior) (Chemistry) against the leave vacancy of Smt.Jyothy S.Nair who availed leave without allowance from 16.09.2009. On the death of Smt.Jyothy S.Nair, that vacancy became regular. When the vacancy became regular, the petitioner who was appointed on leave vacancy _**W.P(C).8027/17**_ 5 could not have continued in service and new selection procedure has to be conducted for filling up that regular vacancy. It is also contended that, in the case of vacancies occurred on account of death of a teacher, the legal heirs of the deceased teacher have preferential claim over such vacancy, as provided under Rule 51B of Chapter XIVA of KER read with the Government orders and circulars governing the field. Therefore, the appointment of the petitioner against the regular vacancy, without express relinquishment of claim by the legal heirs of the deceased teacher, cannot be approved and as such, approval was rightly declined in Ext.P6 order dated 30.01.2017. 8. A reading of paragraph 5 of Ext.P6 order would show that the 2[nd] respondent Director of Vocational Higher Secondary Education has reported before the 1[st] respondent that the petitioner has been appointed as Non-Vocational Teacher (Junior) (Chemistry) in the leave vacancy of Smt.Jyothy S.Nair, for the period from 18.03.2010 to 15.06.2014, after following the rules and procedure fixed for permanent appointment. In view of the aforesaid stand taken before the _**W.P(C).8027/17**_ 6 1[st] respondent, the 2[nd] respondent cannot now contend that once the vacancy became regular, a new selection procedure has to be conducted and as such, the petitioner is not entitled to continue in service. 9. As far as the claim of the legal heirs of the deceased teacher under Rule 51B of Chapter XIVA of KER is concerned, the husband of the deceased teacher who is arrayed as the 4[th] respondent in this writ petition, was the 3[rd] respondent in Ext.P4 revision petition filed before the 1[st] respondent. In paragraph 5 of Ext.P4 revision petition, the petitioner has pointed out that despite lapse of five years, no legal heirs of the deceased teacher have made a claim for appointment on compassionate ground under Rule 51B Chapter XIVA of KER. The husband of the deceased is a Chartered Accountant and her only child is a minor, who was aged only six years at the time of her death. 10. As per Rule 51B of Chapter XIVA of KER, the manager shall give employment to a dependent of an aided school teacher dying-in-harness. Government orders relating to employment assistance to the dependents of Government _**W.P(C).8027/17**_ 7 servants dying-in-harness shall _mutatis mutandis_ apply in the matter of such appointment. In view of the Government orders/circulars governing the field, an application for compassionate appointment under Rule 51B of Chapter XIVA of KER has to be made within two years from the date of death of the teacher and in case of a minor, the period will be within three years after attaining majority. Further, the maximum income of the family of the deceased teacher should be within the limit prescribed in the Government orders governing the field. 11. In **Sameena A.R. v. State of Kerala and others (2015 (5) KHC 497)** , this Court held that an application under Rule 51B of Chapter XIVA of KER has to be preferred within the time limit as stated in the compassionate employment scheme and that no right is created when application is preferred out of time. 12. In this writ petition, the petitioner has raised a specific contention that the 4[th] respondent being the legal heir of the deceased teacher has not raised any claim for compassionate appointment under Rule 51B of Chapter XIVA of _**W.P(C).8027/17**_ 8 KER within a period of two years from the date of death. Though he was made a party to Ext.P4 revision petition filed before the 1[st] respondent, he did not choose to appear before the 1[st] respondent and make any claim for appointment on compassionate ground. Therefore, approval for the appointment of the petitioner in the regular vacancy occurred on account of death of Jyothy S.Nair cannot be kept in suspended animation till the minor child of the deceased teacher attains the age of majority. Though the husband of the deceased teacher who is arrayed as the 4[th] respondent in this writ petition entered appearance through lawyer, he has not chosen to file counter affidavit denying the averments in the writ petition and opposing the reliefs sought for. 13. In such circumstances, considering the fact that the petitioner was holding the post of Non-Vocational Teacher (Junior) (Chemistry) in Christ King Vocational Higher Secondary School in the leave without allowance vacancy of Smt.Jyothy S.Nair, as on 01.04.2011, the date on which that vacancy became regular on account of death of Smt.Jyothy S.Nair, the action of the 3[rd] respondent Manager in appointing her against _**W.P(C).8027/17**_ 9 that regular vacancy with effect from 01.04.2011, vide Ext.P2 order of appointment, cannot be found fault with. In the result, this writ petition is disposed of by setting aside Ext.P6 order dated 30.01.2017 of the 1[st] respondent and directing the 2[nd] respondent to approve the appointment of the petitioner as Non-Vocational Teacher (Junior) (Chemistry) with effect from 01.04.2011, vide Ext.P2 order of appointment, and disburse all consequential monetary benefits. Necessary orders in this regard shall be passed as expeditiously as possible, at any rate, within a peirod of two months from the date of receipt of a certified copy of this judgment and consequential monetary benefits shall be disbursed within a further period of one month. Sd/ANIL K. NARENDRAN, JUDGE sou.26/3.