V.C. Padmavathy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933** **WPC.No. 27067 of 2005 (V)** - **====================** - **PETITIONER(S) =============** - **1 V.C.PADMAVATHY, AGED 57 YEARS, W/O.NARAYANAN SANKRIT TEACHER THERUR U.P.SCHOOL (51-A CLAIMANT) REIDING AT VENGAPETTA HOUSE P.O. EACHUR KANNUR DISTRICT.** - **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** ## **RESPONDENT(S)** - **=============** - **1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT SECRETARIAT THIRUVANANTHAPURAM.** - **2 THE ASSISTANT EDUCATIONAL OFFICER, MATTANNUR P.O. MATTANNUR KANNUR DISTRICT.** - **3 THE SECRETARY/MANAGER, THERUR EDUCATION SOCIETY THERUR P.O.EDYANNUR KANNUR DISTRICT.** - **BY GOVERNMENT PLEADER SMT. LOWCY A. BY ADVS. SRI. K.V. PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2012 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DCS** ## **WPC.No. 27067 of 2005 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** **EXT.P1 COPY OF THE JUDGMENT IN O.P. NO. 6775/2001-F EXT.P2 COPY OF THE ORDER NO. K. DIS. B. 1387/01 OF THE 2ND RESPONDENT EXT.P3 COPY OF THE PETITION SUBMITTED BEFORE THE IST RESPONDNET EXT.P4 COPY OF THE PETITION SUBMITTED BEFORE THE IST RESPONDNET EXT.P5 COPY OF THE PETITION SUBMITTED BEFORE THE IST RESPONDNET EXT.P6 COPY OF THE PETITION SUBMITTED BEFORE THE IST RESPONDNET EXT.P7 COPY OF THE PETITION SUBMITTED BEFORE THE HON'BLE MINISTER FOR EDUCATION, KERALA EXT.P8 COPY OF THE DECISION REPORTED IN 2005(3) K.L.T. 362** ## **' RESPONDENT S EXHIBITS:-** **EXT. R3 (a) COPY OF THE ORDER NO.C/2050/04 DATED, 29.05.2004, BEFORE THE ASSISTANT EDUCATIONAL OFFICER, MATTANNUR EXT. R3 (b) COPY OF THE COMMON ORDER IN O.P. NO. 3229/99 AND 20318/1999, DATED 03/11/1999** **EXT. R3 (c) COPY OF THE JUDGMENT IN A.S. NO. 130/2001, DATED 30/09/2003 BEFORE THE SUBORDINATE JUDGE, THALASSERY EXT. R3 (d) COPY OF JUDGMENT IN R.S.A. 824/2004 DATED 17.02.2005** ## **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **T.R. RAMACHANDRAN NAIR, J.** **---------------------------------------** ## **W.P.(C) No.27067 OF 2005 --------------------------------------Dated this the 5[th] day of January, 2012.** ## **J U D G M E N T** The petitioner herein is seeking for a direction to grant various service benefits as if the petitioner served as Sanskrit Teacher from 01.06.2000 to 31.03.2004 as well as retirement benefits including gratuity. 2. The petitioner is a claimant under Rule 51A of Chapter XIV-A of Kerala Education Rules in view of the initial approved appointment as Sanskrit Teacher from 01.10.1980 to 19.12.1980. A retirement vacancy arose on 31.03.2000 and it is alleged that since the Manager did not appoint her against the said vacancy in spite of the request, the petitioner approached this Court by filing O.P.No.20825/2000 and pursuant to the directions issued by this Court, the Assistant Educational Officer was directed to consider the matter. Since the decision of the Assistant Educational Officer was against her, she filed O.P.No.6775/2001 challenging the same wherein this Court **W.P.(C) No.27067/2005** **2** directed the Assistant Educational Officer to pass fresh order as per Ext.P1 judgment. After hearing the parties, the Assistant Educational Officer passed an order as per Ext.P2. According to the petitioner, in spite of the direction to appoint her in the retirement vacancy with the concurrence of this Court, no reappointment order was issued by the Manager. The requests made by the petitioner have been produced as Exts.P3 to P5. Subsequent petitions were also filed as Exts.P6 and P7. 3. Heard the learned counsel for the Manager and the learned Government Pleader. 4. In the counter affidavit filed by the Manager, it is pointed out that even though he was approved as Manager, a dispute was raised by a rival claimant. The matter was pending before the Civil Court and the Second Appeal was dismissed by this Court by Ext.R3(d) which is dated 17.02.2005. It is pointed out that during the pendency of the above matters, there was an interim order restraining the Manager from making the appointment and therefore, the Manager could not have made the appointment. **W.P.(C) No.27067/2005** **3** 5. It is the case of the learned counsel for the Manager that as the Civil Suits were pending and in the light of the interim orders passed by this Court, the Manager could not have made the appointment. It is pointed out that in Ext.P2 also, the direction by the Assistant Educational Officer was to get concurrence of this Court before making the appointment. 6. Heavy reliance is placed by the learned counsel for the petitioner on the decision of a Division Bench of this Court in _**Balakrishnan** vs._ _**Secretary to Government**_ (2005 (3) KLT 363), produced as Ext.P8. Learned counsel for the Manager submitted that the petitioner had crossed the age of retirement at the time of filing of the writ petition. 7. In similar circumstances, the Division Bench of this Court has held that as far as the claimants under Rule 51A are concerned, there is no upper age limit and therefore, their claims cannot be rejected on that ground. Paragraph 2 of Ext.P8 judgment is extracted below: “The contention of the appellant is that when the vacancy arose on 20.09.1999, the fifth respondent was over aged. It is not disputed that **W.P.(C) No.27067/2005** **4** maximum age limit is prescribed under the Kerala Education Rules and it is applicable to Government Schools as well as aided schools. The fifth respondent was not over aged at the time of her first appointment. She was a retrenched teacher in view of R.51A. This matter was correctly considered by this Court in Sr. Annamma C.V. v. State of Kerala & Anr., 1991(2) KLJ 868. There is no question of fixation of any upper age limit at all to retrenched teachers. Age limit has to be considered at the time of first appointment. Thereafter, her right under R.51A cannot be denied on a question of age limit. The vacancy of a Hindi teacher will arise in a private school rarely because there is only one post of Hindi teacher. If 51A claimants are denied appointment on the basis of age limit nobody will be absorbed under R.51A. In spite of the specific direction of the educational authorities the appellant/petitioner refused to employ fifth respondent. It is true that when she was out of employment, to avoid starvation she has done some job like agency of Mahila Pradhan Kshetriya Bachat Yojna. This will not prevent her from getting the due benefits denied to her. It is now submitted that fifth respondent has now reached the age of superannuation. But the benefit she ought to have received cannot be denied illegally. It is submitted that she reached the age of superannuation and Government Order in her favour **W.P.(C) No.27067/2005** **5** was stayed by this Court. But no person shall suffer due to the act of the Court. Exts.P4, P5 and P7 are affirmed by the learned Single Judge correctly. Government is directed to see that full justice is done to fifth respondent”. 8. In that case also, during the pendency of the matter before this Court, the claimant attained the age of superannuation and therefore, he could not be appointed. This Court directed the Government to see that full justice is done to the 5[th] respondent therein. Learned counsel for the petitioner submitted that the petitioner cannot be faulted in the matter and she was denied the service benefits without any justification. 9. The claim of the petitioner under Rule 51A cannot be of any doubt. Of course, the appointment could not be done for various circumstances including the pendency of the Civil Suits and the interim order passed by this Court. Therefore, the only benefit the petitioner can be granted at this distance of time is to reckon the period notionally and to consider the grant of exgratia pension in terms of the relevant rules. This aspect will be considered by the Government. There will be a direction to the Government to consider and **W.P.(C) No.27067/2005** **6** pass orders on Ext.P7 wherein the petitioner has sought for grant of minimum pension and appropriate orders will be passed within a period of five months from the date of receipt of a copy of this judgment, after hearing the petitioner and the Manager. This writ petition is disposed of as above. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp