P.R. Raman, J.

Appellant in the Writ Appeal is-the 1st respondent in O.P. No. 1088/2000. The 1st respondent herein filed an Original Petition seeking a writ of mandamus commanding the Assistant Educational Officer, the 2nd respondent in the Original Petition to direct the Manager, the appellant in the Writ Appeal to give appointment to the petitioner under dying in harness scheme as provided under Chap.XIV A R.51B of the Kerala Education Rules, (hereinafter referred to as 'the K.E.R.') and also for restraining the A.E.O. from approving the appointment of any other person as Peon in Olavilam U.P. School before appointing the petitioner.

2. Petitioner is the son of one K.K. Kumaran who was an Assistant Teacher of Olavilam U.P. School. The said Kumaran died on 15.7.1975 while he was in service leaving behind his wife Leela and 3 children, namely, Pradeep Kumar (petitioner herein), Dinesh Kumar and Manoj Kumar. The claim of the petitioner is that since his father died while he was in service, his dependent is entitled to get appointment in any existing or next arising vacancy in the school and that the petitioner is fully qualified and eligible for being appointed to the post of Peon. He placed reliance on R.44 of the Chap.XIVA of the K.E.R. For his appointment as a dependent the petitioner submitted an application on 3.7.1998 before the 1st respondent-manager (appellant in the Writ Appeal). Since the Manager did not take any action, the petitioner filed O.P. No.16014/98 wherein a direction was given to the Manager to pass appropriate orders as per the judgment in the said Writ Petition as evidenced by Ext.P1. But according to the petitioner, instead of appointing him the Manager appointed the 4th respondent for the post of Peon on 1.9.1998 before passing orders in compliance with the judgment. Subsequently on 28.9.1998 as per Ext.P2 order, the Manager rejected the claim of the petitioner stating that the application was not in proper form and that in the application his educational qualification was not shown. It was further stated that the petitioner was an accused in a pending criminal case before the Judicial First Class Magistrate, Thalassery as C.C. No.801/96 and hence his application cannot be considered before a decision is rendered in the said criminal case. According to the petitioner, thereafter, he submitted an application in proper form as per Ext.P3. He also submitted that the rule regarding appointment under dying in harness has retrospective operation in the light of the judgment of this Court and that mere pendency of a criminal case is no bar for appointment. He preferred Ext.P4 appeal before the Assistant Educational Officer and ultimately Ext.P6 order was passed on 13.4.1999 holding that the petitioner is entitled to be appointed as a claimant under R.51B of Chap.XIV of the K.E.R. and he refusedto approve the appointment of the 4th respondent made by the Manager. Aggrieved there by the Manager preferred an appeal before the higher authorities which was dismissed by Ext.P7 order. According to the petitioner, even after passing Ext.P7 order the Manager did not appoint the petitioner. It was in these circumstances that Original Petition was filed by the petitioner seeking appropriate relief for redressal of his grievance.

3. The learned Single Judge by judgment dated 27th July, 2000 directed the Manager to appoint the petitioner subject to the result of the Revision Petition if any pending, after holding that pendency of the criminal case is not a bar of any appointment in terms of the Kerala Education Rules.

4. Thereafter, the Revision Petition filed by the Manager before the Government was also dismissed. Challenging the same the Manager preferred O.P. No.25865/2000. In view of the pendency of the Writ Appeal, the said Original Petition was also referred to be heard along with the Writ Appeal. Hence, both the Writ Appeal as well as the Original Petition are disposed of by this common judgment.

5. R.51B of