N. Mohammed Haji v. State of Kerala and Others (W.P.(C). Nos. 12128/2011-M & 34127/2011-M)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933 WPC.No. 12128 of 2011 (M) ------------------------- PETITIONER(S): ------------N.MOHAMMED HAJI, MANAGER, A.U.P.SCHOOL, POMBRA KARIMBUZHA P.O., (VIA) SREE KRISHNAPURAM PIN-379 513, PALAKKAD DISTRICT. BY ADV. SRI.K.A.MANZOOR ALI RESPONDENT(S): -------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, CHERPULLASSERY. 4. SMT. K.JOUHARA, KODAVATH HOUSE, POMBRA P.O., (VIA) KARAKURSSI PALAKKAD DISTRICT, PIN-678 595. R,R4 BY SRI.K.E.HAMZA R,R4 BY SRI.V.RAJASEKHARAN NAIR R, BY GOVERNMENT PLEADER SHRI BIJU MEENATTOOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2012, ALONG WITH WPC NO.34127/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WPC 12128/2011 ## APPENDIX ## PETITIONER'S EXTS: EXT.P1 TRUE COPYOF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT ON 20/02/2006 BEFORE THE PETITIONER. EXT.P2 TRUE COPY OF THE ORDER PASSED BY THE PETITIONER DT.20/04/2010 REJECTING THE CLAIM OF THE FOURTH RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER DT.21/01/2011 PASSED BY THE 1ST RESPONDENT. EXT.P4 TRUE COPY OF THE GO P.NO.14/2010 DT.12/4/2010 ISSUED BY THE GOVERNMENT. ## 4TH RESPONDENT'S EXTS: EXT.R4(a) TRUE COPY OF LETTER ALONG WITH APPLICATION OF R4 DT.20/2/2006 EXT.R4(b) TRUE COPY OF THE ACKNOWLEDGEMENT DT.22/2/2006 EXT.R4(c) TRUE COPY OF REMINDER DT.10/3/2006 OF R4. EXT.R4(d) TRUE COPY OF ACKNOWLEDGEMENT DT.28/3/2006 EXT.R4(e) TRUE COPY OF LETTER DT.14/3/2009 OF R4 EXT.R4(f) TRUE COPY OF THE LETTER DT.7/8/2009 OF SUPERINTENDENT OF POSTS EVIDENCING ACKNOWLEDGEMENT BY THE MANAGER DT.7/8/2009 EXT.R4(g) TRUE COPY OF THE REPRESENTATION DT.20/8/2009 OF R4 EXT.R4(h) TRUE COPY OF ORDER NO.C/3221/09 OF THE AEO DT.7/9/2009 EXT.R4(i) TRUE COPY OF ORDER NO.B4/8268/09/K.DIS OF DEO DT.4/2/2010 EXT.R4(j) TRUE COPY OF ORDER NO.B4/9846/09/L.DIS OF DEO DT.23/3/2010 EXT.R4(k) TRUE COPY OF LETTER DT.19/04/2010 OF MANAGER. EXT.R4(l) TRUE COPY OF LETTER DT.20/04/2010 OF THE MANAGER. EXT.R4(m) TRUE COPY OF INCOME CERTIFICATE DT.30/9/2009 EXT.R4(n) TRUE COPY OF INCOME CERTIFICATE DT.23/04/2010 EXT.R4(o) TRUE COPY OF LETTER NO.61701/J3/2000/G.EDN. OF GOVERNMENT DATED 06/01/2001. EXT.R4(p) TRUE COPY OF JUDGMENT OF THIS COURT IN WPC 21384/2009 DT.12/11/2009. EXT.R4(q) TRUE COPY OF ARGUMENT NOTES OF R4 DT.14/09/2010. ## **`\\True copy//`** ``` P.A to Judge ``` ``` T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.12128/2011-M & 34127/2011-M ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19[th] day of January, 2012 ``` ## **`J U D G M E N T`** Both these writ petitions concern the validity of very same Government Order produced as Ext.P3 in W.P.(C).No.12128/2011, which is sought to be implemented by the fourth respondent in W.P.(C). No.34127/2011. 2. I shall refer to the facts in W.P.(C).No.12128/2011 wherein the petitioner is the Manager of a school. By Ext.P3 Government Order, the Manager was directed to give appointment to the fourth respondent by recognising her right under Rule 51B of Chapter XIV A Kerala Education Rules. 3. The claim has arisen in the following circumstances:She is the daughter of late Mr. Abdul Razak who died on 02/06/1994 while working as Arabic Teacher. She was a minor at that point of time. She attained majority on 29/05/2005. Ext.P1 dated 20/02/2006 is the application submitted, in the form prescribed, by the fourth respondent. The Manager gave a reply rejecting her claim as per Ext.P2. The objections raised by the Manager are that some of the required certificates have not been produced along with the application, the annual income of her family is more than **W.P.(C). No.12128/2011 & 34127/2011** ## **-:2:-** Rs.3,00,000/- and that she is married and therefore, she is not eligible. All these objections were overruled by the Government by Ext.P3 Government Order. The operative portion of Ext.P3 shows that the Government directed the Manager to appoint the fourth respondent in any of the next arising vacancy in the school, if she is otherwise eligible, as her claim under Rule 51 B of Chapter XIV A K.E.R is still existing. 4. The learned counsel for the petitioner-Manager Shri Manzoor Ali submitted that the fourth respondent submitted the application as per Ext.P1 by showing the post for which the appointment is sought as Teacher or Attender. Therefore, the direction in Ext.P3 amounting to appoint her as Teacher cannot be justified. Further it is submitted that the family income, coupled with that of the husband should be reckoned and further she will not be a dependant, being a married woman now. 5. Shri K.E.Hamsa, learned counsel appearing for the fourth respondent submitted that all these contentions cannot be sustained in the light of the various Judgments of this Court. 6. That the application was within time, cannot be disputed since Ext.R4(b) shows that Ext.P1 was received by the Manager on 22/02/2006. Ext.R4(c) is a reminder dated 10/03/2006 which also was accepted by the **W.P.(C). No.12128/2011 & 34127/2011** ## **-:3:-** Manager on 28/03/2006 as per Ext.R4(d) acknowledgement. The fourth respondent is having the qualification of B.Sc (Botony) and B.Ed. (Natural Science) and the provisional certificates were produced along with Ext.R4 (b) before the Manager which was also accepted, as evident from Ext.R4(f) intimation of the Superintendent of Posts. The fourth respondent is eligible to be appointed as an Upper Primary School Assistant. 7. The next question is whether the fourth respondent being married is ineligible to get the appointment. The learned counsel for the fourth respondent relied upon Ext.R4(o) Government instructions stating that married sons/daughters may also be considered for the benefit of compassionate Employment Scheme. It is further pointed out that this Court in Ext.R4(p) Judgment has considered various decisions of this Court and following the dictum in **St.Ignatius High School v. State of Kerala and others [ILR 2005 (3) Ker.666]** it was held that a married daughter will not be disentitled for appointment. The said objection cannot be sustained, in the light of these Judgments, which will squarely apply herein. 8. With regard to the income limit, learned counsel for the fourth respondent submits by relying upon the documents Exts.R4(m) and R4(n) that the income certificates will show that the family income is **W.P.(C). No.12128/2011 & 34127/2011** **-:4:-** Rs.1,12,680/- and the income of the husband is Rs.45,840/- and the limit then provided going by the relevant Government Order, namely, G.O.(P). No.37/2002/P&ARD, dated 15/07/2002 is Rs.3,00,000/- (as on today it is Rs.4.5 lakhs). I find force in the above submission, as the income limit is below Rs.3 lakhs going by the certificates produced. 9. The learned counsel for the petitioner further submitted that the date of death was on 02/06/1994 and the proximity of time also will not favour the fourth respondent. In fact, the said contention cannot be accepted in the light of the various decisions of this Court interpreting the statutory right available under Rule 51 B of Chapter XIV A K.E.R which have been elaborately considered in Ext.R4(p) Judgment produced by the learned counsel for the fourth respondent. The consistent view taken is that, such a contention cannot be taken in the light of the fact that in the aided schools vacancies may occur once in a while which fact is known only to the Manager, which is clear from the Division Bench Judgments of this Court in **S.N.G.S High School v. Reji Sagar [2008 (1) KLT 1026]** and **Priyesh Vasudevan v. Shameena [2005 (4) KLT 1003]** and the Judgment of a learned Single Judge of this Court in **Soopy Haji v. State of Kerala [2009 (3) KLT 142].** In fact, in Ext.R4(p) Judgment, I have considered all **W.P.(C). No.12128/2011 & 34127/2011** **-:5:-** these decisions and held in para.16 that the various benches of this Court are of the view that in the light of the obligation of the Manager under the statutory provisions, the Manager has to offer an appointment whenever a vacancy arises. The aspect whether there is a vacancy, is a matter exclusively within the knowledge of the Manager. Therefore, the Manager cannot take a stand that there is delay in making the application. In para.17 therein, the contention that the married daughter is disentitled to claim appointment under dying-in-harness scheme was rejected by relying upon the decision of the Division Bench in **St.Ignatius High School's case [ILR 2005 (3) Ker.666].** Hence the issues thus raised on such premises are covered in favour of the fourth respondent. 10. Even though, the learned counsel for the petitioner-Manager submitted that at the time of submission of application, the petitioner had not acquired the qualifications, what is relevant is the date of occurrence of vacancy. Apart from that even if an application is defective for any reason, the Manager cannot reject the same, which principle is clear from a decision of a Division Bench of this Court in **Unnikrishnan K.M. v. Manager and others [ILR 2010 (1) Ker. 193].** Therefore, the contention that all the documents were not produced also cannot be accepted. **W.P.(C). No.12128/2011 & 34127/2011** **-:6:-** 11. In that view of the matter, none of the contentions raised by the Manager can be sustained. There is a valid claim of the fourth respondent for appointment under Rule 51B of Chapter XIV A K.E.R which stands accepted by the Government as per Ext.P3 and, there is a direction to appoint the petitioner in the next arising vacancy in the year 2012. 12. Therefore, W.P.(C).No.12128/2011 is dismissed and the direction to the Manager to appoint the fourth respondent in the next arising vacancy in the school is sustained. W.P.(C).No.34127/2011 is accordingly, closed. No costs. ``` Sd/- ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**