Nishamol V. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934** ## **WP(C).No. 27519 of 2011 (L) ---------------------------** ## **PETITIONER(S): -------------** **NISHAMOL V, D/O. LATE S. RADHAMANIAMMA, RESIDING AT NISHANTH KIZHAKKEDATHU,KIDANGAYAM NADUVIL,PATHARAM.P.O,SOORANADU SOUTH KOLLAM.** **BY ADVS.SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN SRI.R.SREEDHARAN NAIR SMT.MINI.V.A.** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY,GENERAL EDUCATION DEPARTMENT GOVT. SECRETARIAT,THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695001.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA - 691 506.** **4. THE ASSISTANT EDUCATIONAL OFFICER, SASTHAMCOTTA - 690 521.** **5. THE MANAGER NSNS PM,UPS,PATHARAM, KOLLAM DISTRICT 690 567.** - ***ADDL.R6. MAYA P., UPSA, NSNSPM UP SCHOOL, PATHARAM, RESIDING AT MANGALATHU PADINJATTATHIL PADA NORTH KARUNAGAPPALLY, KOLLAM.** - ***ADDL.R7. R. JOTHI LEKSHMI UPSA, NSNSPM UP SCHOOL, PATHARAM, RESIDING AT GOKULAM, VAVVAKAVU P.O., KARUNAGAPPALLY, KOLLAM.** - ***ADDL.R8. N.S. AJAYAKUMAR UPSA, NSNSPM UP SCHOOL, PATHARAM, RESIDING AT PARANGATTUVILAYIL, INJAKKADU, KAKKAKUNNU P.O.,SOORANADU SOUTH, KOLLAM.** ## **WP(C).No. 27519 of 2011 (L)** ***ADDL.R9. SREEKALA MS, HINDI LG TEACHER, NSNSPM UP SCHOOL, PATHARAM, RESIDING AT SREE VILASAM, THIRIKKUNNAPUZHA, KAKKAKUNNU P.O., SOORANADU SOUTH, KOLLAM.** ***ADDL. RESPONDENTS 6 TO 9 ARE IMPLEADED AS PER THE ORDER DATED 01.10.2012 IN I.A. NO.17990/2011.** **R5 BY ADV. SRI.JOHN JOSEPH VETTIKAD R5 BY ADV. SRI.C.JOSEPH JOHNY** **BY GOVERNMENT PLEADER SMT.K.A. LOWSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 27519 of 2011 (L)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT-P1: TRUE COPY OF THE INTIMATION SLIP OF PENSION PAYMENT ORDER ISSUED BY THE ASST.ACCOUNTANT GENERAL.** **EXHIBIT-P2: TRUE COPY OF THE LETTER DT:3.3.2007 OF THE 4TH RESPONDENT TO THE 5TH RESPONDENT.** **EXHIBIT-P3: TRUE COPY OF THE REPRESENTATION DT:11/5/2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT-P4: TRUE COPY OF THE REPLY LETTER 15.11.2010 FROM THE 4TH RESPONDENT'S OFFICE TO THE PETITIONER'S FATHER.** **EXHIBIT-P5: TRUE COPY OF THE REPLY LETTER DATED 31.8.2011 FROM THE 4TH RESPONDENT'S OFFICE TO THE PETITIONER'S FATHER.** **RESPONDENTS' EXHIBITS:** **R5(A): COPY OF THE REPLY DATED 25.04.2007 GIVEN BY THE MANAGER TO AEO SASTHAMKOTTA.** **R5(B): COPY OF THE APPLICATION SUBMITTED BY SAKUNTHALA DEVIAMMA. C TO THE MANAGER DATED 10.11.2010.** **R5(C): COPY OF THE 1ST PAGE OF THE RATION CARD SUBMITTED BY SAKUNTHALA DEVIAMMA C.** **//TRUE COPY//** **P.A. TO JUDGE** **ds** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). No. 27519 of 2011 ---------------------------------------Dated this the 19[th] day of October, 2012** ## **JUDGMENT** The appointment given by the 5[th] respondent Manager to the Additional respondents 6 to 9 and approval being given in this regard ignoring Rule 51 B claim of the petitioner, is the subject matter of dispute in this writ petition. 2. According to the petitioner, her mother was working as a UPSA in the 5[th] respondent School, who unfortunately took her last breath while serving the school; pursuant to which, Family Pension was sanctioned to the petitioner as borne by Ext.P1. It is contended that the petitioner submitted an application before the 5[th] respondent for providing employment as a UPSA/LPSA, as the case may be, by virtue of the statutory right under Rule 51 B of Chapter XIV A KER, which was not acceded to. On taking up the matter before the 4[th] respondent, necessary instruction was given to the 5[th] respondent vide Ext.P2, order/communication dated 03.03.2007, to give preference to the petitioner, in the matter of appointment. Nothing turned out in the positive, while the 5[th] W.P.C. No. 27519 of 2011 -2- respondent chose to appoint somebody else, totally ignoring the claim of the petitioner. 3. In response to the application preferred under the RTI Act, it was let known vide Ext.P4 dated 15.11.2010 to the applicant that, approval of the appointment of the person already appointed was still to be ordered and that the petitioner could approach the 5[th] respondent, who was the appointing authority. The particulars of the appointment effected by the 5[th] respondent against the 'two' vacancies of Lower Grade Hindi Teacher and the reason for not granting approval for not having given appointment to any 'protected teacher' are discernible from Ext.P5 communication dated 31.8.2011, issued by the Public Information Officer, under the RTI Act. It is in the said circumstance, that the petitioner has approached this Court, seeking for a direction to be given to the 5[th] respondent to appoint the petitioner as UPSA/LPSA by virtue of her Rule 51 B claim and to declare that the appointment given by the 5[th] respondent to 'three' post of UPSA and one post of Lower Grade Hindi teacher as illegal, simultaneously seeking to restrain the 3[rd] W.P.C. No. 27519 of 2011 -3- and 4[th] respondents from granting approval to any such appointment till the petitioner is given appointment in the school. 4. The 4[th] and 5[th] respondents have filed separate counter affidavits. The particulars of various appointments effected and the relative claims have been given in the counter affidavit filed by the 4[th] respondent; stating that, even '4' years after the direction given by the 4[th] respondent vide Ext.P2, the 5[th] respondent Manager has not taken any action on the request of the petitioner. It has been added that the petitioner has not approached the 4[th] respondent, who is the controlling officer, for the redressal of the grievance, if any. It is also stated that copy of the application in the prescribed form, with the legal heirship certificate, income certificate, qualification certificate etc., was not forwarded to the 4[th] respondent/controlling officer. The 4[th] respondent also submits that the claim of the petitioner under Rule 51 B Chapter XIV KER is to be considered and decided by the 5[th] respondent, who is the appointing authority and that the approval of the concerned appointment effected by the 5[th] respondent has not been granted, more so, in view of the interim W.P.C. No. 27519 of 2011 -4- order passed by this Court on 18.10.2011. 5. The 5[th] respondent has pointed out in his counter affidavit that the mother of the petitioner was working as a UPSA in the school from 1.1.1981 to 11.1.1986 and on the last day, she bid farewell to this world. As per paragraph 19 of G.O.(P) No. 12/99/P&ARD dated 24.5.1999, the time limit for submitting application under Rule 51 B is '2' years from the date of death of the Government servant or in the case of the minor, it will be within '3' years after attaining majority. Referring to the date of birth of the petitioner as 25.05.1984, who attained majority on 25.05.2002, it is pointed out that, no application was ever given by the petitioner for compassionate appointment as a Rule 51 B claimant within stipulated time and that the very first application preferred by the petitioner was only on 19.2.2007, that too, not complete in all respects, as forwarded through the 4[th] respondent vide Ext.P2. It is asserted in paragraph '4' of the counter affidavit that, the deceased Radhamani, the mother of the petitioner, is survived by her elder daughter, who is not made a party to the present proceedings. It is also pointed out that, the W.P.C. No. 27519 of 2011 -5- version of the petitioner that she had submitted an application claiming appointment as UPSA/LPSA within time is patently wrong, for the admitted fact that she attained qualification of 'TTC' only on 29.9.2006. 6. During the course of hearing, the learned counsel for the petitioner sought to place reliance on the decision in **Baiju Kumar Vs. D.E.O. Trivandrum (2003 (3) KLT 240)** (wrongly typed as **2003 (3) KLT 214** in paragraph '4' and elsewhere in the writ petition); in **S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026)** , and also on the observation in the judgment rendered in W.A.No.1126/2005, as to the scope of Rule 51 B claim. It is also stated, with reference to the additional affidavit of the petitioner dated 1.10.2012, that the petitioner, along with her father, had approached the erstwhile Manager of the school, where the deceased mother was working and submitted an application for appointment to the post of Clerk, when she was told that the post of LDC will not be vacant in the near future and asked her to pursue her studies and obtain TTC and it was accordingly, that she joined for TTC after her W.P.C. No. 27519 of 2011 -6- graduation. It is also pointed out that, the vacancy occurred only in 2006 and as such, it was obligatory for the 5[th] respondent to have offered appointment in view of Rule 51 B claim. The learned counsel appearing for the 5[th] respondent with reference to the contents of the counter affidavit submits that, no application was preferred by the petitioner within the prescribed time and even the basic qualification to have appointed to the post of UPSA/LPSA was acquired only much later on 29.9.2006 and hence the petitioner is not entitled to have any relief. 7. True, this Court had occasion to explain the scope of Rule 51 B claim on many an occasion. Affirming the law laid down in **Baiju Kumar Vs. D.E.O. Trivandrum (2003 (3) KLT 240)** , a Division Bench of this Court had held in **S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026)** , that, the Manager can make appointment on the open market only if there is no claim under Rule 43 or Rule 51 A or Rule 51 B of Chapter XIV A KER or Rule 9 A of Chapter XIV A KER. This Court had also an occasion to observe in W.A.No.1126/2005 that, Rule 51 B stands on a different pedestal and that the onus is heavy on the W.P.C. No. 27519 of 2011 -7- shoulders of the Manager to substantiate that, he had taken necessary steps to give appointment to the legal heir of the deceased, having a claim under Rule 51 B, by giving a notice in writing, as and when the vacancy arose, before proceeding to fill up the vacancy. But the said verdict was taken up in appeal before the Apex Court and as per the recent decision rendered in **Shreejith v. Deputy Director (Education) Kerala (2012 (3)** **KLT 214 (SC))** , the Apex Court has observed that, there is no obligation for the Manager to go in search of the legal heirs of the deceased employee or to educate them about their right to seek an appointment under the Scheme. If a person is eligible for the benefit under the Scheme, he can and indeed should approach the institution and seek an appointment. It has also been observed by the Supreme Court that irrespective of the fact whether any vacancy exists or not, it is obligatory for the claimant to have preferred the application, well within time. It is seen that, the law declared by this Court as per **Baiju Kumar** **Vs. D.E.O. Trivandrum (2003 (3) KLT 240)** stands overruled by Supreme Court as per the decision in **Shreejith v. Deputy** W.P.C. No. 27519 of 2011 -8- **Director (Education) Kerala (2012 (3) KLT 214 (SC))** . As such, it is no more open for the petitioner to mould a case on the basis of **Baiju Kumar Vs. D.E.O. Trivandrum (2003 (3) KLT 240)** or **S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026)** . 8. Applying the law declared by the Apex Court to the facts of the present case, the petitioner has not stated the actual date of death of her mother, the date of attaining her majority, the date of acquisition of requisite qualification to apply for the post of UPSA/LPSA and also as to the date of application, if any, preferred before the 5[th] respondent. No copy of application has been produced, despite granting an opportunity in this regard, but for filing an additional affidavit dated 1.10.2012, stating that, she along with her father had approached the erstwhile Manager for the post of clerk and had submitted an application . Going by the contents of the affidavit filed by the 5[th] respondent, the mother of the petitioner expired on 11.1.1986. The date of birth of the petitioner is 25.5.1984 and she attained majority on 25.5.2002. As such, she ought to have submitted the application W.P.C. No. 27519 of 2011 -9- on or before 25.5.2005. It also remains an admitted fact that the petitioner obtained the qualification of 'TTC' only on 29.2.2006 and as such, there was no chance to have submitted any valid application, to have obtained appointment to a post for which the requisite qualification is 'TTC'. Particulars of such application, if any, are also not discernible from Ext.P2, wherein, the reference made is only to the letter dated 19.9.2007, preferred by the petitioner. 9. In the above facts and circumstances, this Court finds that, the petitioner has not succeeded in substantiating the filing of an application claiming appointment under Rule 51 B of Chapter XIV A KER, before the 5[th] respondent within the prescribed time. The submission of the petitioner that the vacancies arose only after 2006 by itself is not enough to have her application dated 19.07.2007 entertained, in view of the law declared by the Apex Court in **Shreejith v. Deputy Director (Education) Kerala (2012 (3) KLT 214 (SC)).** As a natural consequence, it cannot be held that, the petitioner is entitled to project a valid claim under Rule 51 B of Chapter XIV A KER. As it W.P.C. No. 27519 of 2011 -10- stands so, the appointment given by the 5[th] respondent to the respondents (respondents 6 to 9) is not liable to be intercepted in any manner. Writ petition fails and the same is dismissed accordingly. **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-