High Court of KeralaDivision BenchThe appeals WA Nos. 2017, 2018, 2019 are allowe...
WA Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017 (S. Subha Peon and Nimmy/Nimmi Ayyappath House cases)
Case / Petition Number:WA Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- K. Vinod Chandran
- V. G. Arun
- Judgment Date
- 2019-09-23
- Court Decision / Holding
- WA No. 2017, 2018 and 2019 of 2017 would stand allowed. WA Nos. 2024, 2025 and 2030 of 2017 would stand rejected. The court partly interfered with the learned Single Judge’s directions, specifically reversing the directive to grant the Rule 51B claimant an appointment in the next arising post for Nimmi, while upholding the appointments of Sudarsanan and Gopakumar to subsequent posts. The parties shall bear their own costs.
- Final Disposition
- The appeals WA Nos. 2017, 2018, 2019 are allowed. WA Nos. 2024, 2025, 2030 are rejected. The judgment confirms the statutory nature of Rule 51B rights and clarifies the consequences of forfeiture upon refusal of an offered vacancy; costs awarded to the successful parties.
Parties to the Case
Appellants / Petitioners
- S. Subha Peon
- Nimmi Ayyappath House
- Nimmi D/O A.K.Paramu
Respondents
- T. G. Gopakumar
- State of Kerala represented by the Secretary to Government, General Education Department
- District Educational Officer, Thrissur
- The Deputy Director of Education, Thrissur
- The Director of Public Instruction, Thiruvananthapuram
- The Manager, A.K.M. Higher Secondary School, Poochatti
Legal Representation & Advocates
Counsels for Petitioners
- • Dr. George Abraham
- • R. Harishankar
- • Parvathy Nair
Counsels for Respondents
- • Sri. T.K. Sajeev
- • Sri. D. Sreekumar
- • Sri. T. Rajasekhara Nair
Case Synopsis & Summary
These consolidated writ appeals challenge the application of Rule 51B of the Kerala Education Rules, 1958 (KER, 1958) in dying-in-harness appointments in the aided A.K.M. Higher Secondary School. The appeals arise from Subha Peon (appeals WA 2017–2019) and Nimmy/Nimmi Ayyappath House (appeals WA 2024–2030) who claimed appointment under Rule 51B following the death of their mothers. The learned Single Judge had directed that two vacancies of Full-time Menial (FTM) arising after the applicants’ Rule 51B applications be filled in favour of the Rule 51B claimants, and that the claimant may be accommodated in the next arising vacancy. The Court’s factual matrix shows that the first vacancy (01.06.2001) was never intimated to the Rule 51B claimant; subsequent vacancies were offered but not necessarily accepted by the claimants. The Manager argued that Rule 43 has precedence over Rule 51B and that the Rule 51B claimant cannot insist on a particular post. The court discussed that rule 51B is a statutory claim, not subject to compassionate appointment schemes, and that acceptance/refusal of an offered vacancy can lead to forfeiture of the claim. Ultimately, the court partly interfered: it allowed WA 2017–2019 (Subha and Nimmy’s earlier appeals) and rejected WA 2024–2030 (Nimmi) with costs ordered against the parties. The judgment clarifies the interplay of Rule 51B, Rule 43, and forfeiture doctrines, and the statutory nature of 51B rights.
Provisions of Law Cited
Kerala Education Rules, 1958, Rule 51BKerala Education Rules, 1958, Rule 43Kerala Education Rules, 1958
Legal Doctrines & Maxims
- De hors the financial status of the family
- Rule 43 has precedence over Rule 51B claimant
- Forfeiture of claim on refusal to accept an offered vacancy
- Rule 51B claim is a statutory claim and not subject to compassionate appointment schemes
Submissions & Arguments
Contentions of Appellants / Petitioners
The applicants argued that Rule 51B creates a statutory right to appointment under dying‑in‑harness upon meeting the eligibility within the stipulated time; they contended the first vacancy arising on 01.06.2001 was never intimated, and that the later vacancy offered to the Rule 51B claimant should have been considered. They asserted that forfeiture cannot be invoked merely because of a later vacancy being offered, especially where the claimant’s initial claim originated under Rule 51B. They urged that the manager’s reliance on Rule 43 to defeat the Rule 51B claim be misapplied, and that the claim be left intact to its statutory basis. Subha emphasized that acceptance of a post would not derail the earlier entitlement, whereas Nimmy argued that the eventual appointment to post(s) arising after the application should be seen through the 51B lens rather than a purely post‑specific approach.
Contentions of Respondents
The respondents argued that Rule 43 has precedence over Rule 51B and that Rule 51B does not guarantee a post; it is a statutory claim that cannot be made subject to the vagaries of compassionate appointments. They urged that no right to a particular post exists under Rule 51B, and that the claimant’s refusal to accept a subsequent post can result in forfeiture of the 51B claim. They relied on the government orders (e.g., the 16.01.1997 order implementing Rule 51B) and the principle that a lower‑category post can be offered, with the higher‑post claim being subordinated, as supported by case law on forfeiture and the chain of promotions from FTM to Peon. They contended that the final allocation should reflect the statutory priority and existing vacancies, not an unlimited entitlement under Rule 51B.
Cited Precedents (6)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| St. Ignatius High School v. State of Kerala | 2005 (3) KLT 1000 | Positive | The court relied on the decision’s principles to characterize Rule 51B as a statutory right and to treat 51B claims as statutory. |
| Rajesh v. Secretary to Government | 2007(3) KLT 376 | Positive | Used to align with statutory interpretation of rights under Rule 51B. |
| S.N.G.S. High School v. Reji Sagar | 2008 (1) KLT 1026 | Positive | Cited to support statutory nature and procedure for Rule 51B claims. |
| Shreejith v. Deputy Director (Education) Kerala | 2012 (3) KLT 214 (SC) | Positive | Cited as supportive authority for the principles applicable to Rule 51B claims. |
| Umesh Kumar Nagpal v. State of Haryana and others | 1994 (4) SCC 138 | Positive | Used to justify offers to lower posts and the relevance of post‑offer consequences. |
| M.P.Raghavan Nair v. State Insurance Officer and Others | 1971 KLT 583 (F.B.) | Positive | Cited to illustrate the forfeiture principle in the context of post‑offer refusals. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941**
## **WA.No.2017 OF 2017**
**JUDGMENT IN WPC 24330/2010 OF HIGH COURT OF KERALA DATED 18.07.2017**
## **APPELLANT/(INTERESTED PARTY):**
**S.SUBHA PEON, A.K.M. HIGHER SECONDARY SCHOOL, POOCHATTY, ERAVIMANGALAM P.O, THRISSUR.**
**BY ADV. DR.GEORGE ABRAHAM**
## **RESPONDENT/S:**
**1 T.G.GOPAKUMAR CLERK, A.K.M. HIGHER SECONDARY SCHOOL, POOCHATTY, ERAVIMANGALAM P.O, THRISSUR DISTRICT.PIN- 680751.**
- **2 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.**
- **3 DISTRICT EDUCATIONAL OFFICER THRISSUR, PIN-680 020.**
- **4 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR-682 020.**
- **5 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-1**
- **6 THE MANAGER A.K.M. HIGHER SECONDARY SCHOOL, POOCHATTY P.O, ERAVIMANGALAM, THRISSUR DISTRICT, PIN-680751.**
W.A. Nos. 2017, 2018, 2019, 2024, 2025
& 2030 of 2017
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**7 NIMMY AYYAPPATH HOUSE, NADATHARA P.O, THRISSUR DISTRICT, PIN-680 651**
**R1 BY ADV. SRI.T.K.SAJEEV**
## **OTHER PRESENT:**
**SR.GP SRI.T.RAJASEKHARAN NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH WA.2018/2017, WA.2019/2017, WA.2024/2017, WA.2025/2017, WA.2030/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941**
**WA.No.2018 OF 2017**
**JUDGMENT IN WPC 19769/2010 DATED 18-07-2017 OF HIGH COURT OF KERALA**
## **APPELLANT/(INTERESTED PARTY):**
**S.SUBHA PEON, A.K.M HIGHER SECONDARY SCHOOL,POOCHATTY, ERAVIMANGALAM PO, THRISSUR.**
**BY ADV. DR.GEORGE ABRAHAM**
## **RESPONDENT/S:**
**1 A.P.NIMMY D/O A.K PARAMU, EDATHILAKKALAM HOUSE,NELLISSERY, THRISSUR DIST. PIN.680657. 2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.695001.**
**3 DISTRICT EDUCATIONAL OFFICER THRISSUR, PIN. 680020.**
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W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
- **4 THE MANAGER**
- **A.K.M HIGHER SECONDARY SCHOOL,POOCHATTY PO, ERAVIMANGALAM, THRISSUR DIST.PIN.680751.**
- **5 A.V SUDARSAN**
- **A.K.M HIGHER SECONDARY SCHOOL,POOCHATTY PO, ERAVIMANGALAM, THRISSUR DISTRICT, PIN.680751.**
- **6 T.G GOPAKUMAR**
- **A.K.M HIGHER SECONDARY SCHOOL,POOCHATTY PO, ERAVIMANGALAM,THRISSUR DISTRICT. PIN.680751.**
**R1, R5 BY ADV. SRI.D.SREEKUMAR**
**R1, R6 BY ADV. SRI.T.K.SAJEEV**
**SR.GP SRI.T.RAJASEKHARAN NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH WA.2017/2017, WA.2019/2017, WA.2024/2017, WA.2025/2017, WA.2030/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941**
## **WA.No.2019 OF 2017**
**JUDGMENT IN WPC 17274/2010 OF HIGH COURT OF KERALA DATED 18.07.2017**
## **APPELLANT/S:**
**S. SUBHA PEON, A.K.M. HIGHER SECONDARY SCHOOL, POOCHATTY, ERAVIMANGALAM P.O., THRISSUR.**
**BY ADV. DR.GEORGE ABRAHAM**
## **RESPONDENT/S:**
|**1**|**MANAGER, A.K.M. HIGHER SECONDARY SCHOOL**|
|---|---|
||**POOCHATTY, ERAVIMANGALAM P.O.,**|
||**THRISSUR, PIN - 680 751.**|
|**2**|**STATE OF KERALA**|
||**REPRESENTED BY SECRETARY TO GOVERNMENT,**|
||**GENERAL EDUCATION DEPARTMENT, GOVERNMENT**|
||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**|
|**3**|**THE DISTRICT EDUCATIONAL OFFICER**|
||**THRISSUR, PIN - 680 001.**|
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- **4 SMT. A.P. NIMMI AYYAPPATH HOUSE, NADATHARA P.O., THRISSUR DISTRICT, PIN - 680 751.**
- **5 A.V. SUDARSANAN FULL TIME MENIAL, A.K.M. HIGHER SECONDARY SCHOOL, POOCHATTY, ERAVIMANGALAM P.O., THRISSUR, PIN - 680 751.**
- **6 T.G. GOPAKUMAR CLERK, A.K.M. HIGHER SECONDARY SCHOOL, POOCHATTY, ERAVIMANGALAM P.O., THRISSUR, PIN - 680 751.**
**R1, R6 BY ADV. SRI.T.K.SAJEEV**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH WA.2017/2017, WA.2018/2017, WA.2024/2017, WA.2025/2017, WA.2030/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941**
**WA.No.2024 OF 2017**
**JUDGMENT IN WPC 24330/2010 DATED 18-07-2017 OF HIGH COURT OF KERALA**
## **APPELLANT/S:**
**A.P.NIMMI AYYAPPATH HOUSE, NADATHARA P.O, THRISSUR DISTRICTPIN 680 657**
**BY ADVS. SRI.R.HARISHANKAR SMT.PARVATHY NAIR**
## **RESPONDENT/S:**
**1 T.G.GOPAKUMAR, CLERK, A.K.M.HIGHER SECONDARY SCHOOL POOCHATTY P.O, ERAVIMANGALAM,THRISSUR DISTRICT, PIN 680 751 2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM,PIN 695 001**
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W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
- **3 THE DISTRICT EDUCATIONAL OFFICER THRISSUR, PIN 680 020**
- **4 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR,PIN 680 020**
- **5 THE DIRECTOR OF PUBLIC INSTRUCTOR THIRUVANANTHAPURAM, PIN 695 001**
- **6 THE MANAGER**
- **A.K.M HIGHER SECONDARY SCHOOLPOOCHATTY P.O, ERAVIMANGALAM,THRISSUR DISTRICT, PIN 680 751**
**R1 BY ADV. DR.GEORGE ABRAHAM R1-2 BY SR.GP SRI.T.RAJASEKHARAN NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH WA.2017/2017, WA.2018/2017, WA.2019/2017, WA.2025/2017, WA.2030/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941**
**WA.No.2025 OF 2017**
**JUDGMENT IN WPC 17274/2010 DATED 18-07-2017 OF HIGH COURT OF KERALA**
## **APPELLANT/S:**
**A.P.NIMMI AYYAPPATH HOUSE, NADATHARA P.O, THRISSUR DISTRICT PIN 680 657**
**BY ADVS. SRI.R.HARISHANKAR SMT.PARVATHY NAIR**
## **RESPONDENT/S:**
|**1**|**THE MANAGER, AKM HIGHER SECONDARY SCHOOL**|
|---|---|
||**POOCHATTY P.O, ERAVIMANGALAM, THRISSUR**|
||**DISTRICT, PIN 680 751**|
|**2**|**THE STATE OF KERALA**|
||**REPRESENTED BY THE SECRETARY TO**|
||**GOVERNMENT,GENERAL EDUCATION DEPARTMENT**|
||**SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001**|
|**3**|**THE DISTRICT EDUCATIONAL OFFICER**|
||**THRISSUR, PIN 680 020**|
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& 2030 of 2017
**4 A.V SUDARSANAN TULL TIME MENIALA.K.M HIGHER SECONDARY SCHOOLPOOCHATTY P.O, ERAVIMANGALAM, THRISSUR DISTRICT, PIN 680 751**
**5 T.G GOPAKUMAR CLERK, A.K.M HIGHER SECONDARY SCHOOLPOOCHATTY P.O, ERAVIMANGALAM,THRISSUR DISTRICT, PIN 680 751**
**R1, R5 BY ADV. DR.GEORGE ABRAHAM R1, R4 BY ADV. SRI.D.SREEKUMAR SR.GP SRI.T.RAJASEKHARAN NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH WA.2017/2017, WA.2018/2017, WA.2019/2017, WA.2024/2017, WA.2030/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941**
## **WA.No.2030 OF 2017**
**JUDGMENT IN WPC 19769/2010 DATED 18-07-2017 OF HIGH COURT OF KERALA**
## **APPELLANT/S:**
**A.P.NIMMY D/O.A.K.PARAMU EDATHILAKKALAM HOUSE,PO., NELLISSERI, THRISSUR PIN-680657**
**BY ADVS. SRI.R.HARISHANKAR SMT.PARVATHY NAIR**
## **RESPONDENT/S:**
- **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001**
- **2 THE DISTRICT EDUCATIONAL OFFICER THRISSUR, PIN-680020**
- **3 THE MANAGER A.K.M HIGHER SECONDARY SCHOOL,POOCHATTY PO, ERAVIMANGALAMTHRISSUR DISTRICT, PIN-680751**
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& 2030 of 2017
- **4 SHRI.A.V.SUDARSAN A.K.M.HIGHER SECONDARY SCHOOL,POOCHATTY PO., ERAVIMANGALAM THRISSUR DISTRICT, PIN-680751**
- **5 SHRI.T.G.GOPAKUMAR A.K.M.HIGHER SECONDARY SCHOOL, POOCHATTY PO., ERAVIMANGALAM THRISSUR DISTRICT, PIN-680751**
**R1, R5 BY ADV. DR.GEORGE ABRAHAM SR.GP SRI.T.RAJASEKHARAN NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH WA.2017/2017, WA.2018/2017, WA.2019/2017, WA.2024/2017, WA.2025/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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& 2030 of 2017
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## **JUDGMENT**
## **K.VINOD CHANDRAN, J.**
These appeals are filed, three by one Nimmi, a Rule 51B claimant and three by Subha, a person who was appointed as Peon; who would be thrown out if the impugned judgment is allowed to be sustained.
2. The claim was under Rule 51B of the Kerala Education Rules, 1958 [for brevity “KER”] on Nimmi's mother dying-in-harness. There arose two vacancies after the application was submitted by the dependent-daughter; first of which vacancies was not even intimated to the applicant. Later when a vacancy arose, again in the post of Full-time Menial [for brevity “FTM”], the same was offered to the claimant, which, however was not accepted. The claimant asserts that the denial of acceptance was only on account of
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her claim being, appointment as a Peon, which vacancy arose immediately after her application was made.
3. The learned Single Judge, considering the entire matter as also the statutory provisions, directed appointments made, to the two vacancies of FTM, which arose after the application under Rule 51B was made, to be affirmed. The learned Single Judge further directed that the Rule 51B claimant may be accommodated in the next arising vacancy. It was to that next arising vacancy that Subha, the appellant in three of the appeals herein, was appointed on 28.07.2008 as a Peon. The claimant-Nimmi has also filed appeals, again asserting her claim to the post of Peon which arose on 01.06.2001.
4. On admitted facts it has to be noticed that Nimmi's mother, an Upper Primary School Assistant, died on
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07.02.1994. Rule 51B was brought into the KER on 30.03.1990 and notified. However the Government on the strength of certain representations by the Managers of aided schools and their Association kept in abeyance the provision. Later on consideration of the issue as per the directions issued by this Court, the order keeping in abeyance Rule51B was reviewed and the same given full force, by a Government order of 16.01.1997.
5. Immediately thereafter on 17.04.1997, Nimmi applied for the post of Clerk/Attender. It is also clear that Nimmi's was after on application attaining majority 26.09.1994. Rule 51B adopts government orders with respect to dying-in-harness appointments in Government service. The relevant order stipulates an application to be made within three years of attaining majority. Though the
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**==> picture [23 x 9] intentionally omitted <==**
right for appointment under dying-in-harness was not available at the time of death of Nimmi's mother, definitely on her attaining majority she gets a claim; by reason of introduction of Rule 51B, which has been properly addressed by an application within three months from the date of notification and within three years from the date of attaining majority.
6. The first vacancy in the post of Peon arose on 01.06.2001, which even the Manager does not have a claim of having intimated to the applicant or having called her for an appointment. However, the fact remains that, to the vacancy in the post of Peon, there was a claim under Rule 43 of the KER, for promotion from the post of FTM. After the promotion was made, the resultant vacancy of FTM was filled up by one Sudarsanan on 05.06.2001. This was behind
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the back of the Rule 51B claimant and if the facts remained as such, the Rule 51B claimant has a case to be agitated for the appointment to that particular post of FTM.
7. The further facts reveal that on 13.05.2002, a further application was filed, again for appointment as a non-teaching staff. A further vacancy arose, again in the post of FTM on promotion of Sudarsanan to the post of Peon, on 01.07.2002. The Manager offered an appointment in that vacancy of FTM to Nimmi, when it arose on 01.07.2002. However, she asserted her claim to be appointed to the post of Peon which arose on 01.06.2001, as is seen from Exhibit P8 produced in W.P(C) No.17274 of 2010 [W.A.No.2025 of 2017]. A statutory proceeding was also taken against the denial of appointment on 01.06.2001. After the first round of the proceedings under the statute, the Government approved
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**==> picture [23 x 9] intentionally omitted <==**
the claim of the applicant for being considered to the post of FTM on 01.06.2001. A challenge was made before this Court, in which there was a direction to consider afresh the claim. The claim was again allowed in favour of the Rule 51B claimant, which has been challenged in two writ petitions – one filed by Gopakumar, who was appointed to the post of FTM, which arose on 01.07.2002 and the other by the Manager of the School. Nimmi too filed a writ petition seeking implementation of the order of the Government and all consequential benefits.
8. The learned Counsel appearing for Nimmi would argue that the first vacancy, which arose on 1.6.2001, was never intimated to her and that she has a claim, if not to the post of Peon at least to the post of FTM. Only when a subsequent vacancy of FTM arose, that too by the promotion
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of the earlier appointed person to the post of Peon, the vacancy of FTM was intimated to her. Hence, if she had been appointed on 1.6.2001 as a FTM, she would also have been promoted as Peon on the next arising vacancy under Rule 43 of the KER. It is also contended that there was no forfeiture of her claim since it has its genesis way back on 1.6.2001 and not on 1.7.2002. It is also contended that the Manager's contention, as stated in the counter affidavit, was that the first post was not intimated to Nimmi, since it was that of FTM and she had made a claim to the post of Clerk/Attender. 9. The learned Counsel placed before us the following decisions of this Court to further the case:-
_**St.Ignatius High School v. State of Kerala [2005 (3) KLT 1000], Rajesh v. Secretary to Government [2007(3) KLT 376], S.N.G.S.High School v. Reji Sagar [2008 (1) KLT**_ **1026]**
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## _**and Shreejith v. Deputy Director (Education) Kerala [2012 (3) KLT 214 (SC)]**_
10. The other appellant Subha, who was appointed to the subsequent post, would be thrown out if the judgment of the learned Single Judge is sustained and she argued for forfeiture of claim of Nimmi. It is the contention of the said appointee that Rule 51B claimant cannot be appointed to her post and it is for the Manager to decide as to which post the Rule 51B claimant is entitled to. It is also argued that the claim under Rule 43 has precedence over the claim under Rule 51B. _**Umesh Kumar Nagpal v. State of Haryana and others [1994 (4) SCC 138]**_ was also placed before us in support of the contention that the offer made to the lower post was perfectly in order.
11. The contention of the Manager that the Rule 51B
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claimant had not sought for appointment as FTM cannot be countenanced since the claimant would not be aware of the post arising to which she is entitled to be appointed. Further even if the claimant under Rule 51B claims a particular post, it is for the Manager to concede the first available vacancy to the claimant and if there is a failure to accept the same, whatever the grounds be of refusal, there is a forfeiture of the claim. There was no intimation of the first vacancy to the Rule 51B claimant, but an offer of appointment was made to the next arising vacancy on 1.7.2002; which was declined by Nimmi.
12. We need not independently discuss the decisions placed before us, since on principle we agree with all the declarations made therein. We reiterate that the claim under Rule 51B is a statutory claim and the principle applicable to
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a compassionate appointment under a scheme formulated by the Central Government or State Government or other public authorities would not be applicable to a Rule 51B claimant. The pecuniary condition of the family or the marital status of the claimant would not at all be relevant for consideration. When there is an application made within the time as stipulated in the Government Orders, there arises a statutory claim for appointment under Rule 51B, _de hors_ the financial status of the family. We also accept the contention of the Manager that Rule 43 has precedence over Rule 51B claimant and that the refusal to join in a post offered would amount to forfeiture of the claim as such. The Rule 51B claimant also cannot assert an appointment to a particular post.
13. In the present case, however, the facts give rise to
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some complexity. Insofar as the first post arising on 1.6.2001, it was never offered to Nimmi. Hence, Rule 51B claimant definitely could assert her case as against the first appointment made of an FTM after her application was placed on record ie: to the vacancy which arose on 1.6.2001.
The fact that, in her application she claimed for Clerk/Attender post also would not disentitle her from being considered for the post of FTM. But, difficulty arises insofar as the second post having been offered to her, which was declined of acceptance.
14. In fact, if the second post had been accepted by the Rule 51 B claimant, then she could have, sitting in that post, raised a claim against the post which arose earlier and which arose first after the application was filed. The refusal of the Rule 51B claimant to accept the second post resulted in
W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
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rights being created of third parties. Gopakumar was appointed to the post of FTM, which Nimmi refused to accept. In this context, it is also relevant to notice that Sudarsanan, who was appointed as FTM on 1.6.2001, was later promoted; which resulted in the vacancy in the post of FTM, which was offered to the Rule 51B claimant as arising on 1.7.2002. Though challenge was made to the appointment of Sudarsanan on 1.6.2001, Rule 51B claimant failed to challenge the promotion of Sudarsanan to the post of Peon. This resulted in one another person; Gopakumar, being appointed on 1.7.2002. The appointment of Gopakumar was also only on account of the refusal of Rule 51B claimant to take up the post of FTM that arose in the School on 1.7.2002. In such circumstances, it has to be found that Nimmi; the Rule 51B claimant, forfeited her claim for compassionate
W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
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appointment by her refusal to take up the appointment offered to her.
15. In such circumstances, the appointment of Sudarsanan and Gopakumar, which were not upset by the Government or the learned Single Judge would stand upheld. Subsequent promotion of Sudarsanan to the post of Peon was never challenged by the Rule 51B claimant. The claimant under Rule 51B hence, cannot challenge the appointment of Sudarsanan, without having challenged his further promotion **[** _**M.P.Raghavan Nair v. State Insurance Officer and Others [1971 KLT 583 (F.B.)**_ **]** . Having accepted the approval of appointment of Sudarsanan and Gopakumar to the post of Peon and FTM respectively, the Rule 51B claimant forfeited her claim for appointment. It was on a subsequent vacancy of Peon, that Subha was appointed;
W.A. Nos. 2017, 2018, 2019, 2024, 2025 & 2030 of 2017
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which cannot be upset on the basis of the claim of Rule 51B of Nimmi, especially since she had failed to take up the post of FTM offered to her on 1.7.2002, and forfeited her claim as such.
In the above circumstances, we partly interfere with the directions of the learned Single Judge and reverse the directions insofar as granting Nimmi; the Rule 51B claimant, appointment in the next arising post. W.A.Nos.2017, 2018 and 2019 of 2017 would stand allowed. W.A.Nos.2024, 2025 and 2030 of 2017 would stand rejected. The parties shall suffer their respective costs.
## **Sd/-**
**K.VINOD CHANDRAN JUDGE sd/V.G.ARUN JUDGE**
vku/Scl/24.09