Writ Appeal Nos. 565 of 2023 and 593 of 2023; Manager, Vocational Higher Secondary School, Chathiyara, Thamarakulam v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 WA NO. 565 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 17999/ DATED 20.10.2022 OF HIGH COURT OF KERALA** ## **APPELLANT/5TH RESPONDENT:** **MANAGER, VOCATIONAL HIGHER SECONDARY SCHOOL, CHATHIYARA, THAMARAKULAM P.O., ALAPPUZHA DISTRICT, PIN690530** **BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN** **R.UDAYA JYOTHI** **M.M.VINOD** **M.SUSEELA** **KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K.** **C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S.** **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:** - **1 RESHMI R. CHANDRAN, AGED 32 YEARS** - **NALAYYATHU HOUSE, MUTHUKATTUKARA, NOORANAD P.O., ALAPPUZHA DISTRICT., PIN - 690504** **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** 2 Writ Appeal Nos.565 and 593 of 2023 - **3 THE DIRECTOR OF GENERALA EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN - 695014** - **4 DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA, PIN - 688001** - **5 DISTRICT EDUCATIONAL OFFICER, MAVELIKARA, ALAPPUZHA DISTRICT, PIN - 690101 BY ADV S.P.ARAVINDAKSHAN PILLAY B.VINITHA, SR.GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023 ALONG WITH WA 593/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Writ Appeal Nos.565 and 593 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 WA NO. 593 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 26192/2021 DATED 20.10.2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **MANAGER, VOCATIONAL HIGHER SECONDARY SCHOOL, CHATHIYARA, THAMARAKULAM P.O., ALAPPUZHA DISTRICT., PIN - 690530** **BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S.** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001** 4 Writ Appeal Nos.565 and 593 of 2023 - **2 THE DIRECTOR OF GENERAL , JAGATHI, THIRUVANANTHAPURAM DISTRICT, PIN - 695014** - **3 THE REGIONAL DEPUTY DIRECTOR OF GENERAL EDUCATION CHENGANNUR, ALAPPUZHA DISTRICT, PIN - 689121** - **4 THE DISTRICT EDUCATION OFFICER MAVELIKKARA, ALAPPUZHA DISTRICT, PIN - 690101** - **5 RESMI R. CHANDRAN AGED 32 YEARS** - **D/O R. REMADEVI AMMA, NALAYATHU HOUSE, MUTHUKATTUKARA, NOORANADU P.O., MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN – 690504** - **BY ADV S.P.ARAVINDAKSHAN PILLAY B.VINITHA, SR.GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023 ALONG WITH WA 565/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 Writ Appeal Nos.565 and 593 of 2023 **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. ----------------------------------------------Writ Appeal Nos.565 and 593 of 2023 ----------------------------------------------Dated this the 10[th] day of April, 2023.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** These appeals arise from the common judgment in two writ petitions namely W.P.(C) No.17999 of 2021 and W.P.(C) No.26192 of 2021. As the writ petitions were disposed of by a common judgment, the appeals are also disposed of by this common judgment. Parties and documents are referred to in this judgment for convenience, as they appear in W.P.(C) No.17999 of 2021. 2. The mother of the petitioner, R.Remadevi Amma died in harness on 29.01.1989, while working as High School Assistant in the Vocational Higher Secondary School of which the fifth respondent is the Manager. The petitioner and her elder 6 Writ Appeal Nos.565 and 593 of 2023 sister were the only children of the deceased. Both of them were minors at the time of the death of their mother. The elder sister of the petitioner, Remya R. Chandran, on attaining majority, preferred an application before the Manager of the School for employment assistance invoking Rule 51B of Chapter XIVA of the Kerala Education Rules (the KER). The application preferred by the sister of the petitioner for employment assistance was not considered by the Manager. Instead, the Manager appointed another candidate in the vacancy that was existing at the time when the application was made. The dispute relating to the claim raised by the sister of the petitioner ultimately reached this Court and though this Court recognised the statutory right of the sister of the petitioner for employment assistance, the claim was turned down by this Court on the ground that the sister of the petitioner was not major as on the date of occurrence of the vacancy. 3. It is seen that when the sister of the petitioner got married later, she relinquished her claim for employment assistance in favour of the petitioner. Accordingly, the petitioner preferred an application before the Manager for employment Writ Appeal Nos.565 and 593 of 2023 7 assistance. In the meanwhile, a few vacancies arose in the School in which the sister of the petitioner could have been accommodated, but the Manager filled up those vacancies ignoring the claim of the sister of the petitioner. The sister of the petitioner took up the matter before the Director of General Education and the said authority, in turn, directed the Manager to accommodate the sister of the petitioner in the next arising vacancy in the School according to her qualification. The Manager challenged the said direction of the Director of General Education before the Government in revision and it was while the said revision was pending that the sister of the petitioner relinquished her claim in favour of the petitioner. In the revision, the Government affirmed the impugned order of the Director of General Education and having regard to the fact that the sister of the petitioner had relinquished her claim in favour of the petitioner, the Government directed the Manager to appoint the petitioner as full-time menial in the School. Ext.P4 is the order issued by the Government in this regard. Ext.P4 order was challenged by the Manager in W.P.(C) No.32844 of 2010. The 8 Writ Appeal Nos.565 and 593 of 2023 petitioner was the fifth respondent in the said writ petition. As per the judgment in the writ petition, though this Court affirmed the direction issued by the Government to the Manager to provide employment assistance to the petitioner, set at naught the direction in Ext.P4 order to appoint the petitioner as full-time menial in the School as she had also not attained the age of majority at the time of occurrence of the vacancies existed at the time of her application. The above writ petition, in the circumstances, was disposed of modifying Ext.P4 order to that limited extent and directing that the petitioner shall be considered for appointment in any of the vacancies that arise after 01.10.2007. Ext.P5 is the judgment in W.P.(C) No.32844 of 2010. Though Ext.P5 judgment was challenged by the Manager in W.A.No.2208 of 2012, this Court affirmed Ext.P5 as per Ext.P7 judgment. 4. The Manager did not offer employment assistance to the petitioner inspite of Ext.P5 judgment, though several vacancies to which the petitioner could have been considered for appointment, having regard to her qualification, 9 Writ Appeal Nos.565 and 593 of 2023 arose after 01.10.2007. The petitioner brought the above fact to the notice of the Educational Officer. The Educational Officer, in turn, issued Ext.P10 communication directing the Manager to appoint the petitioner in the next arising vacancy as teacher in the School, as she acquired, in the meanwhile, the qualifications necessary for appointment as teacher. The Manager did not act upon the direction contained in Ext.P10 communication also. The petitioner, in the circumstances, preferred Ext.P11 representation before the Deputy Director of Education, requesting him to take action against the Manager as provided for under Rule 7 of Chapter III KER for not having complied with the direction contained in Ext.P10 communication. There was no action on Ext.P11 representation also. The writ petition was instituted in the above background seeking, among others directions commanding the authorities to ensure that the petitioner is appointed in the first vacancy that arose in the School after 01.10.2007 in a post to which she could be considered for appointment, having regard to her qualifications. 5. W.P.(C) No.26192 of 2021 is one instituted by the 10 Writ Appeal Nos.565 and 593 of 2023 Manager challenging Ext.P10 communication of the Educational Officer and also seeking a declaration that the petitioner is not entitled to invoke Rule 51B of Chapter XIVA KER, as the said Rule is incorporated with effect from 30.03.1990 for claiming employment assistance, as the death of her mother occurred on 29.01.1989. 6. The learned Single Judge rejected the contentions raised by the Manager in W.P.(C) No.26192 of 2021 and consequently, dismissed the said writ petition and allowed W.P.(C) No.17999 of 2021 declaring that the petitioner is entitled to get appointment in the School in the first vacancy that arose after 01.10.2007 in a post to which she is qualified to be considered for appointment, and directing the official respondents to ensure the appointment of the petitioner in the School in terms of the declaration made. The learned Single Judge also restrained the authorities from approving other appointments made in the School until the petitioner is appointed and her appointment is approved. It is aggrieved by the said decision of the learned Single Judge, that the Manager has preferred these appeals. Writ Appeal Nos.565 and 593 of 2023 11 7. Heard the learned counsel for the Manager as also the learned Government Pleader. 8. The learned counsel for the Manager reiterated the contention that the petitioner is not entitled to invoke Rule 51B of Chapter XIVA KER for seeking employment assistance in the School, inasmuch as the death of her mother occurred prior to the introduction of the said Rule in the KER. It was argued by the learned counsel that the two decisions of this Court namely, **Manager, Parli High School v. Narayanan** , 2002 (3) KLT 912 and **Somasundaran v. State of Kerala,** 2003 (1) KLJ 811, relied on by the learned Single Judge to reject the said contention, are not good law in the light of the decision of the Apex court in **P. Mahendran v. State of Karnataka** , (1990) 1 SCC 411 and the Full Bench decision of this court in **Neeli v. Padmanabha Pillai** , 1992 KHC 452. It was also argued persuasively by the learned counsel that the purpose of compassionate appointment being a means to provide the family of the deceased to get over the financial crisis on account of the death of the employee, the claim raised by the petitioner after almost two decades of the 12 Writ Appeal Nos.565 and 593 of 2023 death of the deceased employee, is unsustainable in law. The learned counsel has relied on a few decisions of the Apex Court, in support of the said proposition. 9. We have considered the arguments advanced by the learned counsel for the Manager. 10. As noted, as early as on 23.09.2010, in the revision petition filed by the Manager against the directions issued by the Director of General Education to accommodate the sister of the petitioner in the next arising vacancy in the School according to her qualification, the Government, as per Ext.P4 order, directed the Manager to provide employment assistance to the petitioner in the place of her sister, as her sister had relinquished her claim in favour of the petitioner. Though Ext.P4 order was challenged by the Manager in W.P.(C) No.32844 of 2010, this Court did not interfere with the direction in Ext.P4 order that the petitioner shall be provided employment assistance in the place of her sister, and the order was set aside only in so far as it directs the Manager to accommodate the petitioner in the vacancies existed at the time of application, as the petitioner had 13 Writ Appeal Nos.565 and 593 of 2023 not attained the age of majority as on the date of occurrence of those vacancies. Paragraph 7 and the operative portion of the judgment in W.P.(C) No.32844 of 2010 read thus: “7. Evidently, her right as such cannot be said to be without any merit. But her right to claim appointment in the vacancies which arose on 01/08/2006 and 01/10/2007 may not survive. Therefore, Ext.P12 order requires only a modification to that extent. Therefore, the writ petition is disposed of as follows:- There will be a direction to approve the appointments made by the Manager as per Exts.P2 and P6 orders. The claim of the fifth respondent will be considered in any of the vacancies in the light of Ext.P12 which may have arisen after 01/10/2007 and in future if so far no vacancies have arisen as she is entitled to be considered for an appointment under Rule 51B of Chapter XIVA K.E.R. No costs.” As noted, even though the Manager challenged Ext.P5 judgment in appeal, this Court affirmed the judgment as per Ext.P7 judgment. It is seen that the view taken by the learned Single Judge in the judgment impugned in the appeals is that, in the light of Exts.P5 and P7 judgments which are binding on the Manager, the Manager cannot be heard to contend that the petitioner is not entitled to employment assistance under Rule 51B of Chapter 14 Writ Appeal Nos.565 and 593 of 2023 XIVA KER. Having regard to the categoric findings in Ext.P5 and P7 judgments, the learned Single Judge cannot be found fault with for having taken the view aforesaid. Even though the learned Single Judge does not appear to have dealt with the contention raised by the petitioner that the claim for employment assistance made by the petitioner after almost two decades of the death of her mother is unsustainable in law specifically, we are of the view that in the light of the categoric findings in Exts.P5 and P7 judgments which are binding on the Manager, the Manager is precluded from raising the said contention as well. In the light of the discussions aforesaid, the writ appeals are devoid of merits and are accordingly, dismissed. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **SOPHY THOMAS, JUDGE.** Mn