Ratheesh T. Nair v. Manager, V.K.N.M. High School, Vayyattupuzha; District Educational Officer, Pathanamthitta; State of Kerala, rep. by Secretary to Government, General Education Department Secretariat, Thiruvananthapuram; Addl. 4. Prasadkumar P.K., S/o Kesavan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD DAY OF SEPTEMBER 2013/12TH BHADRA, 1935 WP(C).No. 3501 of 2008 (P) --------------------------- PETITIONER: - -------------- RATHEESH T.NAIR, VILANGIL HOUSE, VAYYATTUPUZHA P.O., (VIA) CHITTAR PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENTS: - ----------------- 1. MANAGER, V.K.N.M.HIGH SCHOOL, VAYYATTUPUZHA, PATHANAMTHITTA. 2. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 3. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. - ADDL. 4. PRASADKUMAR P.K., S/O.KESAVAN NAIR, AGED 38 YEARS, PERUMPATTETHU HOUSE, MALAYALAPUZHA, THAZHAM PO PATHANAMTHITTA DISTRICT. - ( ADDL.R4 IS IMPLEADED AS PER ORDER DATED 3.9.2013 IN I.A.NO.10823/2013) R1 BY ADV. SRI.S.D.ASOKAN R2 & R3 BY GOVERNMENT PLEADER SRI.T.R.RAJESH R4 BY ADV. SRI.P.HARIDAS THIS WRIT PETITION (CIVIL) HAV ING BEEN FINALLY HEARD ON 03-09-2013, ALONG WITH WPC. 27889/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3501 of 2008 (P) ## APPENDIX PETITIONER'S EXHIBITS: - EXT.P1: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER SEEKING EMPLOYMENT UNDER DYING IN HARNESS SCHEME BEFORE THE 1ST RESPONDENT DT. 7.6.2000. - EXT.P2: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 31.8.2007. - EXT.P3: TRUE COPY OF THE ORDER NO.LDIS B3-12733/2007 DATED 5.12.2007 PASSED BY THE 2ND RESPONDENT. - EXT.P4: A TRUE COPY OF THE G.O.(Rt)NO.4396/12/G.EDN. DT. 18.9.2012 OF THE 3RD RESPONDENT. - EXT.P5: A TRUE COPY OF THE INTERIM ORDER DATED 26.11.2012 IN W.P.(C) NO.27889/2012 OF THIS HON'BLE COURT. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)Nos.3501 of 2008 and 27889 of 2012 ---------------------------- ## Dated 3[rd] September, 2013 ## **JUDGMENT** The petitioner in the former writ petition is a claimant under Rule 51B of Chapter XIV-A of the Kerala Education Rules (for short `KER') and the petitioner in the latter writ petition is a claimant under Rule 51A of Chapter XIV-A of KER as regards the Educational Agency of V.K.N.M High School, Vayyattupuzha in Pathanamthitta District. Since the issues involved in these writ petitions are intrinsically interrelated they are taken up for joint hearing and disposal. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their status in W.P.(C)No.27889 of 2012 and the documents are also referred to in the order they are set out in the said writ petition unless otherwise specifically mentioned as all the parties in W.P.(C)No.3501 of 2008 are parties to W.P.(C)No.27889 of 2012. A short narration of facts in respect of the claims of the petitioner and the 8[th] respondent who is the petitioner in the former writ petition as hereunder is necessary for the disposal of these cases:- The father of the 8[th] respondent died-in-harness on 20.10.1995 leaving behind his widow and his son, the 8[th] respondent. At the time of father's death the 8[th] respondent was minor and he WP(C).No.3501/2008 & 27889/2012 2 attained majority in the year 2000. Thereafter, he fled Ext.P1 application dated 7.6.2000, referred as such in the former writ petition, claiming the benefits under Rule 51B of Chapter XIV-A, KER. The 5[th] respondent Manager did not take any action on Ext.P1 as there was no vacancy during the year 2000 for considering his claim. Later, coming to know that a vacancy would arise on 1.4.2007 consequent to the retirement of one Gopinathan Nair, the 8[th] respondent submitted another representation on 23.11.2006. On account of the inaction on the part of the 5[th] respondent Manager on that representation the 8[th] respondent moved the fourth respondent the District Educational Officer, Pathanamthitta through Ext.P2, referred as such in the former writ petition. Subsequently, he filed W.P.(C)No.30594 of 2007 before this Court against the action on the part of the 5[th] respondent Manager in effecting appointments ignoring his claim under Rule 51B. That writ petition was disposed of with a direction to the fourth respondent to consider the representation submitted by him. After considering the representation the fourth respondent passed Ext.P3 order dated 5.12.2007. Evidently, as per Ext.P3, referred as such in the former writ petition, claim of the 8[th] respondent under Rule 51B was upheld and the 5[th] respondent Manager was directed to appoint the 8[th] respondent as Peon against the leave vacancy of one N.B.Prasad immediately, without WP(C).No.3501/2008 & 27889/2012 3 harming the claim of N.B.Prasad who got preferential claim under Rule 51A of Chapter XIV-A, KER. A perusal of Ext.P3 would reveal that the right of the 8[th] respondent under Rule 51A of Chapter XIV-A KER was also considered. It was found that as per the amendment brought in KER as per G.O.(P)No.187/2005/G.Edn. dated 17.6.2005 the 8[th] respondent is entitled to get appointment as Clerk. It is the failure on the part of the respondents to take appropriate action even after Ext.P3 that constrained the 8[th] respondent to approach this Court by filing W.P. (C)No.3501 of 2008 with the prayer to issue writ of mandamus commanding commanding the fifth respondent to comply with Ext.P3 order passed by the District Educational Officer, Pathanamthitta, the fourth respondent. The further prayer is for issuance of a writ of mandamus commanding respondents 2 and 3 therein viz., the DEO and the State, to ensure the compliance of Ext.P3 order by the Manager. 2. The petitioner (the petitioner in the latter writ petition) was appointed as a Full Time Menial in V.K.N.M. High School, Vayyattupuzha as per Ext.P1 with effect from 18.11.1996. The said appointment was against a leave vacancy. On the strength of Ext.P1 he continued till 17.11.1999. Subsequently, he was given appointment as per Ext.P2. The period of appointment covered by Ext.P2 was from WP(C).No.3501/2008 & 27889/2012 4 1.4.2000 to 24.3.2003. Indisputably, both the appointments were approved by the fourth respondent and later, for want of sanctioned post he was retrenched from service with effect from 15.7.2001. While so, a post of Clerk fell vacant with effect from 27.5.2000 in the said school on account of the death of one P.K.Raveendran Nair who is none other than the petitioner's brother. On the date of occurrence of the said vacancy the petitioner was working there as Full Time Menial. The petitioner, thereupon, requested the fifth respondent Manager to promote him to the post of Clerk. Over looking his claim the fifth respondent made appointment from open market. The said action on the part of the fifth respondent was challenged by the petitioner in appeal and then, in revision. Aggrieved by the revisional order he filed W.P.(C)No.25482 of 2002. Meanwhile, the fifth respondent appointed another person, namely, N.Santhosh Kumar as LD Clerk. The said Santhosh Kumar left the service on getting employment in Government service. In the resultant vacancy when appointment was about to be made the petitioner again approached this Court by filing W.P.(C)No.28854 of 2006. Both the said writ petitions were dismissed by a common judgment dated 20.2.2008 in W.P.(C)Nos.25482 of 2002 and 28854 of 2006 and against which the petitioner filed W.A.No.1148 of 2008. Obviously, the petitioner claimed the benefit of amendment of Rule 51A WP(C).No.3501/2008 & 27889/2012 5 of Chapter XIV-A, KER. The said writ appeal was disposed of as per Ext.P4 common judgment dated 16.9.2008 in W.A.Nos.1148 and 1149, of 2008. As per Ext.P4, this Court directed the Director of Public Instructions to consider the claim of the petitioner for appointment in the vacancy that occurred pursuant to the amendment brought in as per G.O.(P)No.187/2005/G.Edn. dated 17.6.2005 and pass appropriate orders with due notice to the Manager and respondents 8 and 9 therein. After hearing the parties in terms of the directions in Ext.P4 the second respondent rejected the claim of the petitioner for the benefit of amendment to Rule 51A, in other words, the benefit of Government order dated 17.6.2005 as per Ext.P5 and it was held that the benefit is limited only to the teaching posts. While so, the Manager appointed the 7[th] respondent as Clerk in the school. That appointment was challenged by the petitioner in W.P.(C)No.24579 of 2009. During the pendency of the said writ petition the petitioner and the fifth respondent settled the matters and a compromise petition was filed by them before this Court. Going by the same, the 5[th] respondent undertook to absorb the petitioner in a regular vacancy arising on the retirement of one C.P.Soman Nair who was then working in the school as Peon. Ext.P6 is the compromise petition. Taking into account the said compromise this Court as per Ext.P8 judgment disposed of W.P.(C)No.24579 of 2009. In terms of WP(C).No.3501/2008 & 27889/2012 6 Ext.P6 compromise the petitioner was served with Ext.P7 order of appointment by the fifth respondent Manager. That was an appointment against the post of Peon. Later, the said order of appointment was forwarded for approval of the fourth respondent. However, as per Ext.P9 the fourth respondent declined to approve the same holding that the vacancy in question should have been filled up by a protected hand of any other aided schools. The contention of the petitioner is that at the relevant point of time no protected menial part-time or full-time hand was available in the Educational District or in the Revenue District. While he was pursuing with his grievances against the said order he received a copy of the revision petition filed by the 8[th] respondent putting forth his compassionate appointment under Rule 51B of Chapter XIV-A, KER. The contention of the petitioner is that till such date he was not aware of such a claim or pendency of any revision petition in connection with the said issue. As per Ext.P16, the said revision petition was disposed of directing the Manager to appoint the 8[th] respondent in the next arising vacancy of Full Time Menial/peon under Rule 51B of Chapter XIV-A KER. It is aggrieved by the said direction in Ext.P16 that the petitioner filed the latter writ petition viz., W.P.(C)No.27889 of 2012 mainly with the prayer to quash Exts.P9, P10 and P11 and to issue a writ of mandamus commanding respondents 1 to 4 to approve the appointment of the WP(C).No.3501/2008 & 27889/2012 7 petitioner as Full Time Menial/Peon in the 5[th] respondent's school pursuant to Ext.P7 order. The further prayer of the petitioner is for a declaration that he is entitled for appointment in any existing or future vacancies of non-teaching staff arising in the school of the fifth respondent in preference to all others. Thus, it is obvious that while the petitioner claims appointment under the fifth respondent's school based on his claim under Rule 51A of Chapter XIV-A, KER the 8[th] respondent claims appointment on the strength of Rule 51B of Chapter XIV-A, KER claim. It is also to be noted that Ext.P3 also recognizes his claim under Rule 51A, as well. 3. I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 8[th] respondent, the learned counsel appearing for respondents 5 and 6 and also the learned Government Pleader. 4. As noticed hereinbefore, the 8[th] respondent, who is the petitioner in the former writ petition claimed appointment in the 5[th] respondent's school under Rule 51B of Chapter XIV-A, KER. As per Ext.P3 in the former writ petition the District Educational Officer, the 2[nd] respondent therein, found that the 8[th] respondent is eligible to claim for WP(C).No.3501/2008 & 27889/2012 8 appointment as Peon under the 5[th] respondent and subsequently directed the 5[th] respondent Manager to appoint him as Peon against the leave vacancy of one N.B.Prasad without harming the right of that person under Rule 51A or any other claimant as per rule. At the same time, it is evident that the 4[th] respondent while passing Ext.P3 in that writ petition found that the petitioner is a senior Rule 51A claimant and in respect of his claim admittedly, without issuing notice to the petitioner, the following observations were made in Ext.P3. “But there is a senior rule 51A claimant Sri.P.K.Prasadkumar remaining to be appointed as FTCM/Peon. As per amendment made in KER as per G.O.(P)187/05 dated, 17.6.05 he is entitled to get ” appointmented as clerk. (emphasis supplied) After making such observations vide Ext.P3 the 4[th] respondent directed the Manager to appoint the 8[th] respondent against the leave vacancy of one N.B.Prasad without harming his claim for a preferential claim under Rule 51A or any other claimant as per rule. True that such an order was passed as early as on 5.12.2007. Evidently, despite Ext.P3 dated 5.12.2007 no action was taken by the 5[th] respondent Manager to appoint the 8[th] respondent as Peon in his school. The fact that despite Ext.P3 the WP(C).No.3501/2008 & 27889/2012 9 8[th] respondent was not given appointment was also taken into consideration while passing Ext.P16 order. Obviously, the petitioner and respondents 5 and 8 were heard prior to the passing of Ext.P16 order. After referring to Ext.P3 order the first respondent held that the Manager had effected appointments disregarding the directions given by the District Educational Officer. The fact that as per Ext.P3 the petitioner was found qualified for being appointed as clerk as per the proviso to Rule 51A was also not taken note of. In Ext.P16 it is stated that as per Ext.P3, referred as such in the former writ petition, the Manager was directed to appoint the 8[th] respondent and while giving such a direction a further direction was issued not to harm the Rule 51A claim of the petitioner as he is fully qualified for being appointed as clerk under proviso to Rule 51A of Chapter XIV-A, KER. I may hasten to add that a bare perusal of the amended provision would make it clear that the right of the petitioner to claim under Rule 51A would not be and could not be limited as claim is only for the post of clerk as in Ext.P3 itself what was stated with respect to the right of the petitioner is that he is a senior claimant under Rule 51A remaining to be appointed as Full Time Menial/Peon. It is thereafter that taking note of the amendment brought on 17.6.2005 it was stated by the 4[th] respondent that the petitioner is entitled to be appointed as clerk. As noticed hereinbefore, such WP(C).No.3501/2008 & 27889/2012 10 observations were made without affording an opportunity of being heard to the petitioner. But, at the same time, as rightly contended by the fifth respondent, it essentially is an observation in favour of the petitioner. The endeavour of the 8[th] respondent is to canvass the position that in the light of the amendment to Rule 51A as per Government order dated 17.6.2005 and in view of the manner of occurrence of vacancies in the post of Peon, as noted hereinbefore, the Rule 51A claim of the petitioner could have been and should have been considered only against the post of clerk. In that context, it is also to be noted that as per Ext.P8 judgment this Court taking note of Ext.P6 compromise entered into between the petitioner and the 5[th] respondent disposed of W.P.(C) No.24579 of 2009 and the relevant portion of Ext.P6 was extracted thereunder thus:- “1. 5[th] respondent has already issued order of appointment to the petitioner as a full time menial in a leave vacancy. True copy of the Order of appointment is produced herewith and marked as Exhibit P-11. 5[th] respondent shall absorb him in a regular vacancy arising on retirement of Shri.C.P.Soman Nair Peon. If any vacancy of full time menial/peon arise on an earlier point of time 5[th] respondent shall appoint petitioner in such vacancy. 5[th] respondent shall take all earnest effort to see that petitioner's appointment will be regularized and salary will be paid to him at the earliest. Petitioner agrees that the 7[th] respondent may continuing service and challenge against the appointment of the 7[th] respondent is hereby withdrawn.” WP(C).No.3501/2008 & 27889/2012 11 5. Evidently, W.P.(C)No.24579 of 2009 was disposed of as per Ext.P8 judgment in terms of Ext.P6 compromise with the specific observation that it would be binding on the petitioner and the 5[th] respondent Manager. The above extracted portion from Ext.P6 in Ext.P8 would reveal that the 5[th] respondent Manager thus issued an order of appointment to the petitioner as Full Time Menial/Peon in a leave vacancy and that order was produced in that writ petition as Ext.P11. Ext.P6 compromise petition also contained a clause that the 5[th] respondent should absorb the petitioner in a regular vacancy of Peon held then, by Sri.C.P.Soman Nair upon his retirement. Obviously, the terms of compromise also contained a clause to the effect that as against any vacancy of Full Time Menial/Peon occurring at an earlier point of time the 5[th] respondent would appoint the petitioner. The challenge against the appointment of the 7[th] respondent was withdrawn. The recording of the said fact assumes relevance in the context of the latter writ petition. In the light of Ext.P6 compromise and Ext.P8 judgment which was rendered in terms of Ext.P6 agreement there cannot be any doubt with respect to the position that the petitioner cannot challenge the appointment of the 7[th] respondent. In the light of Ext.P6 the petitioner sought for withdrawing the challenge against the appointment of the 7[th] respondent. WP(C).No.3501/2008 & 27889/2012 12 Obviously, the challenge against the appointment of the 7[th] respondent was the main issue involved in W.P.(C)No.24579 of 2009. It is realising and acknowledging these aspects that the petitioner desisted himself from mounting any challenge against the appointment of the 7[th] respondent in the latter writ petition. Even then, he has chosen to make Aneesh.K.R. as a party to the writ petition. In fact, he is arrayed as the 7[th] respondent. Though notice has been served on the 7[th] respondent in W.P.(C)No.27889 of 2012 the said Annesh.K.R. has not chosen to enter appearance and contest the matter. I will deal with that issue a little later. Now, in regard to the dispute between the petitioner and the 8[th] respondent the latter contended that in fact, there is no scope for any dispute between them as in Ext.P3 no adverse finding was made against the petitioner. According to the learned counsel appearing for the 8[th] respondent, the observations thereunder were made taking note of the amended provision of Rule 51A and based on that it was found that the petitioner is entitled to get appointment as clerk. It is true that no adverse finding has been entered into in Ext.P3 from the view point of the 5[th] and 8[th] respondents. At the same time, certain other aspects have to be looked into. Even after passing Ext.P16 order the direction in Ext.P3 was not implemented. It is relevant to note that as per Ext.P3 it was found that the petitioner is the senior most Rule 51A claimant WP(C).No.3501/2008 & 27889/2012 13 remaining to be appointed as Full-Time Menial/Peon. It is after making such an observation that taking note of the amendment a further observation on his entitlement for appointment as clerk was made. As long as Rule 51A provides for staking such claim against a post occurring in the same or higher grade the question is whether such right flowing from the statute could be restricted by an order passed by an educational authority that too, without hearing the person concerned. An order passed by an educational authority should be one in accordance with the position of law. Obviously, by virtue of the statutory provision a person may be entitled to stake claim for the same category or higher category under Rule 51A. But, that would not enable the authority to hold that the concerned person has to confine his claim only to a higher post even without hearing him. Had that been the intention of the statute definitely a specific provision would have been made thereunder confining such a power on the educational authorities. Even going by Ext.P3 it is evident that the petitioner was the senior most Rule 51A claimant then, remaining to be appointed as Full Time Menial/Peon. The further finding that he was entitled to get appointment as clerk was made taking note of the amended provision to Rule 51A which in no way adversely affected the right of the petitioner to get appointment as Full Time Menial/Peon but, only augmented his prospects in getting WP(C).No.3501/2008 & 27889/2012 14 appointment in V.K.N.M. School. For a proper appreciation of the claims and contentions in this writ petition it is only proper and profitable to refer to Rule 51A of Chapter XIV-A, KER. It reads thus:- “ **51A** . Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified that may arise if there is no claimant under rule 43 in the lower category in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Provided that a teacher who was relieved under rule 49 or rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief: Provided further that the first preference under this rule shall be given to protected teachers belonging to the same Educational Agency. **Note 2** . Manager should issue an order of appointment to the teacher by Registered post acknowledgement due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited.” WP(C).No.3501/2008 & 27889/2012 15 Obviously, as per G.O.(P)No.187/2005/G.Edn. dated 17.6.2005 an amendment was brought into Rule 51A whereby making a claimant under Rule 51A eligible for appointment against the same or higher or lower category of teaching posts. In the context it is also relevant to refer to Rule 7 of Chapter XXIV-B, KER. Going by the said rule, the proceedings contained in Chapter XIV-A applicable to teachers of aided school would apply to the non-teaching staff in aided schools. The term `appointment' employed in Rule 7 is capable of taking in the claims under Rule 51A and a combined effect of Chapter XXIV-B Rule 7 and Rule 51A of Chapter XIV-A is that even in the case of a non-teaching staff in an aided school it is obligatory on the part of the Manager concerned to follow the procedures prescribed under Note 2 to Rule 51A in the case of a non-teaching staff in the Aided school. Certainly, this court was fully astute to that aspect and position while accepting the compromise entered into between the petitioner and the 5[th] respondent under Rule 51A and also of the right of the petitioner by virtue of the provisions under Rule 51A in the matter of appointment under the 5[th] respondent school. In this context, it is also to be noted that in W.P.(C) No.24579 of 2009 which was disposed of as per Ext.P8 judgment the challenge was against the action on the part of the 5[th] respondent in WP(C).No.3501/2008 & 27889/2012 16 appointing the 7[th] respondent as LD clerk in a vacancy that occurred in the school ignoring the claim of the petitioner under Rule 51A. It is after mounting a challenge against the appointment of the 7[th] respondent as LD Clerk that on account of the compromise entered into between himself and the 5[th] respondent the petitioner has chosen to limit his claim to accept the order of appointment as Full Time Menial as against a leave vacancy offered to him as per Ext.P11 and further accepting appointing against any future vacancy in the post of Full Time Menial/Peon. Evidently, as per the compromise he had withdrawn his challenge against the appointment of the 7[th] respondent. Therefore, as regards the petitioner, one cannot find fault with him in not challenging the appointment of the 7[th] respondent as LD Clerk in W.P.(C)No.27889 of 2012 viz., the latter writ petition, as in the light of the withdrawal of his challenge which was recorded by this Court while rendering Ext.P8 judgment and also on the ground of principles of _res judicata_ he cannot raise any challenge against the appointment of the 7[th] respondent in this proceedings. The learned counsel appearing for the 8[th] respondent submitted that such a compromise entered into between the petitioner and the fifth respondent shall not be permitted to defeat the right of others. But, what is his better or larger right vis-a-vis the right of the petitioner? The 8[th] respondent further contended that challenging the WP(C).No.3501/2008 & 27889/2012 17 appointment of the 7[th] respondent the petitioner has already approached the statutory authority. Since that is not subject matter of these writ petitions and there is absolutely no challenge against the appointment of the 7[th] respondent I do not think it appropriate to consider the said contention any further and it is up to the petitioner and the others, if any, interested to pursue with it in accordance with law at the appropriate stage. I may hasten to add that I shall not be understood to have stated that the petitioner is having a legal right to challenge it or the appointment of the 7[th] respondent was not made in tune with the provisions. There is yet another reason for not considering the correctness or otherwise of the appointment of the 7[th] respondent in this proceedings. Admittedly, in none of these writ petitions a direct challenge is posed against the appointment of the 7[th] respondent. In fact in W.P.(C) No.3501 of 2008 the 7[th] respondent in the latter writ petition is not at all a party and obviously no relief has been sought against him in the said writ petition. Even though Aneesh.K.R. is impleaded as the 7[th] respondent in the latter writ petition, evidently no relief is sought against him. In the circumstances, if the 7[th] respondent has not chosen to enter appearance and to contest the said writ petition he cannot be found fault with as no relief is actually sought for against him. Even though the 8[th] respondent, the petitioner in the former writ petition WP(C).No.3501/2008 & 27889/2012 18 attempts to mount a challenge against the appointment of the 7[th] respondent in the circumstances and reasons expatiated above I am not inclined to look into such aspects, any further, in these proceedings. 6. Now, reverting to the cases on hand, there can be no dispute with respect to the position that in these writ petitions the question to be decided is who among the petitioner and the 8[th] respondent is entitled to seek for a posting under the 5[th] respondent's school against the existing vacancy of Peon. As noticed hereinbefore, the claim of the 8[th] respondent is that in the light of Ext.P3 he is entitled to get it. The contention of the petitioner is that he being the senior claimant under Rule 51A of Chapter XIV-A, KER and taking into account the fact that the 8[th] respondent is claiming such appointment under Rule 51B of Chapter XIV-A, KER and in view of the settled position that a claimant under Rule 51A is entitled to get appointment over a Rule 51B claimant, he is entitled to get appointment in preference to the 8[th] respondent. The learned counsel appearing for the 8[th] respondent did not dispute the said position of law but, at the same time, contended that the action on the part of the petitioner in abandoning the claim against a vacancy occurred in the post of clerk should be construed as an abandonment of his claim towards the post of Peon and in essence, the WP(C).No.3501/2008 & 27889/2012 19 very claim under Rule 51A itself. It is further contended by the learned counsel appearing for the 8[th] respondent that, as a matter of fact, a vacancy of Peon occurred firstly in the 5[th] respondent's school and the vacancy of Clerk occurred only after about four months. In fact, according to the learned counsel, the vacancy of Peon occurred on 1.8.2007 and the vacancy in the post of a Clerk occurred in the school on 1.12.2007. The contention is that despite the occurrence of vacancy in the post of Peon on 1.8.2007 the petitioner had not raised any claim against the said post for appointment under Rule 51A. At the same time, he staked the claim for appointment against the post of Clerk occurred on 1.12.2007. The learned counsel appearing for the petitioner submitted that no such specific averment has been taken by the 8[th] respondent in his counter affidavit and that apart, it is contended that it is not obligatory on the part of a Rule 51A claimant to stake claim against a particular post occurred in the concerned school by virtue of Rule 51A. It is further contended that going by the position settled by this Court and also by virtue of relevant provisions under Note 2 to Rule 51A it is mandatory on the part of the Manager concerned to intimate the claimant regarding the occurrence of vacancy and any such claim under Rule 51A could be abandoned only if the concerned Manager takes appropriate action in tune with the provisions under Note 2 Rule 51A and WP(C).No.3501/2008 & 27889/2012 20 therefore it cannot be contended that a duty is cast upon the concerned Rule 51A claimant to stake any claim for appointment on occurrence of the vacancy. There is nothing on record to show that on occurrence of vacancy in the post of Peon on 1.8.2007 the 5[th] respondent took steps in tune with Note 2 to Rule 51A of Chapter XIV-A, KER and in fact, the 5[th] respondent did not raise any such specific contention. There cannot be any doubt with respect to the fact that Note 2 to Rule 51A prescribes the procedures mandatorily to be followed by the concerned Manager in respect of a claimant under Rule 51A of Chapter XIV-A, KER. It ordains that the Manager should issue an order of appointment to the teacher by registered post acknowledgment due and give a period of 14 clear days to the teacher to join duty. It further provides that if the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 clear days. If nothing is heard during that time also, the preferential right under the rule would be regarded as forfeited. Thus, a bare perusal of the relevant provision would reveal that it contemplates only a forfeiture of the preferential right under Rule 51A and the forfeiture of such a right would occur only on compliance with the mandatory procedures by the Manager and also on expiry of the time WP(C).No.3501/2008 & 27889/2012 21 stipulated specifically under the said provisions, as mentioned above. In this context, it is relevant to refer to a Division Bench decision of this Court in **Abdurahiman** v. **Government of Kerala (2009 (2) KLT 105)** . In the said decision the Division Bench held that the right under Rule 51A would be lost only in circumstances contemplated under Note 2 to Rule 51A. I have already referred to the said relevant provision and the procedures to be followed mandatorily. The question of forfeiture would arise only on expiry of the said 7 clear days mentioned in the second limb of Note 2 to Rule 51A. No other provision is brought to my notice which would extinguish the right under Rule 51A. The learned counsel appearing for the 8[th] respondent relied on a decision of this Court in **Krishnakumar M.** v. **P.Kunhiraman and others (ILR 2011(2) 85).** In that case before the Division Bench the concerned person failed to accept employment offered by the Manager and there cannot be any doubt with respect to the position that in such circumstances, it would extinguish the right of the person under Rule 51A and the Manager would obtain a right to effect appointment of another person against the post which ought to have been filled up by the said claimant. In the case on hand, it is nobody's case that on occurrence of a vacancy in the post of Peon or in the post of Clerk an order of appointment was given to the petitioner and he failed to join duty within a period of 14 days and not WP(C).No.3501/2008 & 27889/2012 22 exercised the right even within the time limit of 7 days of second notice. In such circumstances, going by the provisions under Note 2 to Rule 51A of Chapter XIV-A, KER and in the light of the decision relied on by the 8[th] respondent in **Krishnakumar's** case (supra) there cannot be any question of forfeiture or extinguishment of the right of the petitioner under Rule 51A. The Manager might fail in offering appointment on occurrence of a vacancy, but, such a lapse on the part of the Manager, be wilful or otherwise, cannot and will not defeat the right of Rule 51A claimant and his claim under Rule 51A can be said to be forfeited or extinguished only upon failure to accept the appointment issued by the Manger in compliance with the mandatory provisions under Note 2 to Rule 51A. 7. In the case on hand, the 8[th] respondent has also contended that Ext.P6 compromise which was accepted by this Court and recorded while disposing of W.P.(C)No.24579 of 2009 shall not be worked out to defeat his claim. I have already extracted the relevant portion of Ext.P6 compromise as has been extracted in Ext.P8 judgment. The said compromise referred to in Ext.P8 judgment is produced in the latter writ petition as Ext.P6. It is evident that the Manager who was the 5[th] respondent in that writ petition issued Ext.P11 order of appointment referred as such in WP(C).No.3501/2008 & 27889/2012 23 that writ petition to the petitioner as Full Time Menial in a leave vacancy. Further, it was stated therein that the Manager would absorb him in a regular vacancy then to be occurred on the retirement of one C.P.Soman Nair in the post of Peon. It was further stated therein that if any vacancy of Full Time Menial/Peon occurred on an earlier point of time the Manager would appoint the petitioner against such vacancy. In the said circumstances, the petitioner herein accepted the offer made by the Manager. This Court in Ext.P8 taking note of Ext.P6 compromise held that, that agreement would be binding on the petitioner and the Manager, the 5[th] respondent therein. As noticed hereinbefore, there is no case for any of the parties in these writ petitions that the Manager had followed the mandatory procedures prescribed under Note 2 to Rule 51A and even thereafter the petitioner herein had failed to join duty either in the post of Peon or in the post of Clerk. True that on coming to know about the appointment of the 7[th] respondent ignoring his rightful claim under Rule 51A the petitioner took up the matter before the competent authorities and it was with such remedies that he filed W.P. (C)No.24579 of 2009. Going by Rule 51A the petitioner herein is having a right to be appointed against the same or higher or lower category post. Thus, a reading of the provisions would reveal that being a Rule 51A claimant the petitioner should have been appointed against the post WP(C).No.3501/2008 & 27889/2012 24 of Peon or the post of Clerk. It was in W.P.(C)No.24579 of 2009 which carried a challenge against the appointment of the 7[th] respondent that the Manager issued Ext.P11, referred as such in W.P.(C)No.24579 of 2009 offering appointment to the petitioner as Full Time Menial against a leave vacancy as part of Ext.P6 compromise. Obviously, as per Ext.P6, the Manager assured that the petitioner would be absorbed against a regular vacancy in the post of Peon on the retirement of one C.P.Soman Nair and further assured that he would be appointed against any earlier vacancy, if occurs, in the post of Full Time Menial/Peon. The petitioner who is having a right under Rule 51A against the same, higher or lower category of posts had evidently chosen to accept the appointment issued to him as per Ext.P11 relinquishing his claim for appointment against the vacancy which was filled up by effecting appointment of the 7[th] respondent. Obviously, while accepting such an offer made by the 5[th] respondent the petitioner accepted the appointment made as per Ext.P11 and after the expiry of the period covered by Ext.P11 was waiting for an appointment in the post of Full-Time Menial/Peon. It is also evident from Ext.P8 that while accepting the said order he has withdrawn his challenge against the 7[th] respondent. As noticed hereinbefore, it is in in view of Exts.P8 and P9 that the petitioner while filing the latter writ petition did not move any challenge against the appointment of the 7[th] respondent. WP(C).No.3501/2008 & 27889/2012 25 As noticed hereinbefore, the learned counsel for the 8[th] respondent submitted that the 8[th] respondent filed petitions before the competent authorities challenging the appointment of the 7[th] respondent against the post of Clerk which was initially claimed by the petitioner herein and the claim against which was abandoned by him later. The right or otherwise of the 8[th] respondent to challenge the 7[th] respondent's appointment is not called upon to consider in the former writ petition filed by him. As noticed hereinbefore, it is for the parties to pursue with the said challenge, in accordance with law, in appropriate proceedings. The learned counsel for the 8[th] respondent submitted that when the first vacancy occurred in the post of Peon the 8[th] respondent staked a claim. It is the inaction on the part of the 5[th] respondent Manager to recognize his claim under Rule 51B and sanction the same by giving an order of appointment that constrained him to approach the Government. He approached the authorities and obtained Ext.P3 order. Evidently, the former writ petition was filed by him on being aggrieved by the further inaction on the part of the 5[th] respondent despite Ext.P3 order. At the same time, it is evident from Ext.P16 order in the latter writ petition that even at that point of time the order in Ext.P3 was not implemented. The learned counsel appearing for the petitioner submitted that a perusal of paragraph 4 of the counter affidavit filed by the 8[th] respondent in the WP(C).No.3501/2008 & 27889/2012 26 latter writ petition would reveal that as against Ext.P3 order dated 5.12.2007 which was produced along with the said counter affidavit as Ext.R8(a), the Manager preferred a petition to the Director of Public Instructions and revision before the Government. If is further stated therein that Government considered all the representations/ revisions/judgments of this Court and passed Ext.P16 order. But, at the same time, a scanning of Ext.P16 order would reveal that no revision petition which was filed against Ext.P3 (Ext.R8(a)) was taken up for consideration while passing that order though there is a reference about Ext.P3 order dated 5.12.2007. In other words, there cannot be any doubt with respect to the position that no decision against any revision filed against Ext.P3 is seen considered while passing Ext.P16. But, at the same time, as noticed hereinbefore, it is evident from Ext.P16 that the Manager had not complied with the directions in Ext.P3 even while the matters were taken up and, later, culminated in Ext.P16. The 8[th] respondent is perfectly justified in contending that the Manager was fully aware of the existence of Ext.P3 order. Whether the Manager was fully aware of the said order or had failed to comply with the directions thereunder, there cannot be any doubt with respect to the position that the failure on the part of the 5[th] respondent Manager to comply with Ext.P3 order or to take up appropriate challenge against Ext.P3 order WP(C).No.3501/2008 & 27889/2012 27 would not/could not adversely affect the rights under Rule 51A of the petitioner. It is to be noted that even as per Ext.P3 the petitioner is the senior claimant under Rule 51A of Chapter XIV-A, KER. As noticed hereinbefore, his right under Rule 51A could be forfeited or extinguished only in the manner statutorily provided. There is no case for the respondents that the right of the petitioner was extinguished or forfeited in the prescribed manner. Now, the contention of the 8[th] respondent is that the petitioner could have pursued with his challenge against the appointment of the 7[th] respondent when the provisions confers a right to him, for being considered for appointment against the same or higher or lower category of posts and when he accepted an offer of appointment against a post of Peon after abandoning his claim against the post of Clerk. It cannot be legally contended that by abandoning his claim against the Clerk post he had forfeited his right under Rule 51A to the extent it pertains to the other post. In this context, it is to be noted that while his challenge against the appointment of the 7[th] respondent against the post of Clerk under the 5[th] respondent was pending consideration before this Court in W.P.(C)No.24579 of 2009 that he was offered with Ext.P11 order of appointment against a Full Time Menial post and he accepted it and joined duty. In Ext.P6 agreement entered into between himself and the 5[th] respondent along with the offer of appointment vide WP(C).No.3501/2008 & 27889/2012 28 Ext.P11 he was also offered appointment against a regular vacancy either in the post of Full Time Menial or Peon whichever occurs under the 5[th] respondent at an earlier point of time. Thereafter, admittedly, a post occurred in the post of Peon on the retirement of one C.P.Soman Nair. That vacancy is specifically referred to in Ext.P11, as is obvious from Ext.P8 judgment. In view of the provisions under Rule 51A, the decision of this Court in **Abdul Rahiman's** case (supra) and also Ext.P8 judgment it cannot be contended that the petitioner cannot have a rightful claim against the said post. I have already made it clear that it will be open to the 8[th] respondent to pursue with his challenge, if any, against the appointment of the 7[th] respondent and his right to get appointment would necessarily depend upon the success or otherwise of his claim against the appointment of the 7[th] respondent, if he had already taken up. The learned counsel appearing for the 5[th] respondent Manager submitted that all issue precipitated on account of the finding of the Government that the petitioner is not eligible to be appointed as Clerk. I am unable to uphold the said contention for more than one reason. A perusal of Ext.P3 in W.P.(C)No.3501 of 2008 would reveal that the said order was passed on 5.12.2007. Obviously, the petitioner was not put on notice while passing Ext.P3. But, at the same time, it is evident that the Manager was fully aware about Ext.P3 order. In that context, it is to WP(C).No.3501/2008 & 27889/2012 29 be noted that it is the case of the Manager that he has not taken up the order in Ext.P3 further before any authority. If the case of the 5[th] respondent is that he had not taken up the order in Ext.P3 further before any authority it can only be said that he was under an obligation to implement the same in the absence of any order to the contrary. But, the 5[th] respondent Manager did not implement Ext.P3 or intimate the factum of issuance of Ext.P3 and thereby his inability to offer appointment in the post of Peon to the petitioner. In Ext.P3 order the District Educational Officer found that the 8[th] respondent is entitled to be considered for appointment against the post of Peon and by virtue of amended provision of Rule 51A the petitioner is entitled to be considered for appointment to the post of Clerk. It is to be noted that at that point of time the petitioner was also pursuing his claim against the post of Clerk. Subsequently, he filed W.P.(C)No.24579 of 2009 against the appointment of the 7[th] respondent ignoring his rightful claim for appointment against the post of Clerk honouring his rightful claim under Rule 51A. That writ petition was disposed of only on 15.2.2010. The Manager who was fully aware about Ext.P3 order had not cared to bring it to the notice of this Court that Ext.P3 order dated 5.12.2007 was passed by the DEO in favour of the 8[th] respondent and at the same time, what was contended is that the petitioner was not entitled to be WP(C).No.3501/2008 & 27889/2012 30 considered for appointment against the post of Clerk. There is no case for the 5[th] respondent Manager that at the time of filing of W.P.(C) No.24579 of 2009 or at the time of its disposal by Ext.P8 judgment dated 15.2.2010 he was absolutely unaware of the pendency of W.P.(C) No.3501 of 2008. He is also not having any case that he has not received any notice in W.P.(C)No.3501 of 2008. It is a fact that the Manager received notice in W.P.(C)No.3501 of 2008 much prior to the filing of W.P.(C)No.24579 of 2009. It is after the receipt of notice and entering appearance in W.P.(C)No.3501 of 2008 that the 5[th] respondent Manager failed to bring that fact to the notice of this Court. Obviously, the petitioner is not a party to W.P.(C)No.3501 of 2008. In such circumstances, the Manager cannot feign ignorance about the existence of Ext.P3 order in the former writ petition. I have no hesitation to hold that the Manager, the 5[th] respondent in fairness should have brought to the notice of this Court at the time of disposal of W.P.(C)No.24579 of 2009 that Ext.P3 order was passed in favour of the 8[th] respondent herein and in fact, in and vide Ext.P3 a more favourable order was passed in favour of the petitioner, as well. At the same time, the Manager preferred to enter into Ext.P6 compromise with the petitioner herein. In such circumstances, the 5[th] respondent cannot wriggle out of the responsibility and liability. However, all such reasons cannot defeat or deprive the right of the WP(C).No.3501/2008 & 27889/2012 31 petitioner under Rule 51A. The long and short of the above discussions is that the petitioner in W.P.(C)No.27889 of 2012 is entitled to the post of Peon which is now available under the 5[th] respondent and he is bound to issue an order of appointment honouring the rightful claim of the petitioner under Rule 51A and also Ext.P8 judgment. The Manager cannot wriggle out of the said liability. I have already taken note of the submission made on behalf of the 8[th] respondent that the 8[th] respondent has already taken up the challenge against the appointment of the 7[th] respondent. It is up to the 8[th] respondent to pursue with that matter. I do not want to make any observation with respect to anything regarding the said challenge said to have been made by the 8[th] respondent against the appointment of the 7[th] respondent. That apart, in view of Ext.P3, in case of occurrence of any other vacancy, on account of any circumstances the 8[th] respondent can stake claim under Ext.P3 for appointment under the 5[th] respondent. In the said circumstances, Ext.P16 to the extent it orders for appointment of the 8[th] respondent in preference to the petitioner will stand quashed. It is made clear that quashing of Ext.P16 will not defeat the right of the 8[th] respondent recognized and acknowledged under Ext.P3 to the extent it is not against the interest of the petitioner. The learned counsel appearing for the petitioner submitted that the petitioner has further grievance to be WP(C).No.3501/2008 & 27889/2012 32 redressed. Ext.P9 would reveal that his request for approval of appointment as Peon from 8.2.2010 was not approved. It is contended that the said appointment was not approved holding that the school in question is a newly opened school. The learned counsel appearing for the petitioner submitted that in Ext.P12 the claim of a person working as Full-Time Menial in a newly opened school was dealt with and further contended that the school of the 5[th] respondent will not fall under the category of newly opened school. The question whether it will fall under the category of newly opened school or newly upgraded school is not to be considered in these writ petitions. It is not discernible from Ext.P9 order as to why the order of appointment of the petitioner as Peon from 8.2.2010 was not approved. The contention of the petitioner is that it was not approved on the ground that the question whether any protected retrenched hands were available for appointment in the educational Sub District was not looked into by the Manager before effecting appointment of the petitioner. In that context, it is to be noted that there is nothing on record to show that any such person was awaiting appointment when appointment of Peon was given to the petitioner from 8.2.2010. In such circumstances, liberty is granted to the petitioner to approach the appropriate authority seeking for consideration of his claim for approval of appointment as Peon from 8.2.2010. In case the petitioner prefers to WP(C).No.3501/2008 & 27889/2012 33 do so, he may approach the competent authority within three weeks from the date of receipt of copy of this judgment. Both the writ petitions are disposed of accordingly. Sd/C.T.RAVIKUMAR Judge TKS