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2017 Supreme(Ker) 342
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. ASHA, J.
MAYA.L. – PETITIONER
Versus
THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT AND ORS. – RESPONDENTS
W.P.(C).No.14892 of 2016
Decided On : 21-02-2017
For the Petitioner: ADV. SMT. T.B. REMANI
For the Respondent: GOVERNMENT PLEADER SRI. B. UNNIKRISHA KAIMAL, ADVS. SRI. V.A. MUHAMMED, SRI. V. RAJASEKHARAN NAIR
The main legal point established in the judgment is the entitlement of statutory claimants to appointment against vacancies, the impact of pupil strength on appointments, and the validity of non-teaching staff appointments in schools.
Headnote:
Rule 9A - Appointment Preference - Chapter XXIVA/Rule 51 B - The court discussed the entitlement of a claimant under Rule 9A of Chapter XXIVA or an FTM who was appointed but not approved consequent to reduction of post to preference against the first vacancy which arises in the School. The court highlighted the provisions of Rule 7A(2) and (3) of Chapter XIVA of KER, and the interpretation of these rules in relation to the appointment of non-teaching staff. The court also emphasized the significance of staff fixation orders and the impact of pupil strength on appointments in the school.
Fact of the Case:
The widow of a deceased peon challenged the denial of appointment by the school and the DEO's order stating no vacancy, despite the vacant position of her husband remaining unfilled. The petitioner sought compassionate appointment and filed a writ petition after no action was taken.
Finding of the Court:
The court found that the petitioner was entitled to appointment against the vacancy arising after her husband's death, and the appointment of the 5th respondent was not approved. The court also noted the petitioner's distress as a widow with minor children and ordered the respondents to appoint her within a month.
Issues: The key issues included the entitlement of the petitioner and the 5th respondent to the vacant positions, the validity of the 5th respondent's appointment, and the impact of pupil strength on appointments.
Ratio Decidendi: The court held that the petitioner, as a statutory claimant, was entitled to appointment against the vacancy, and the 5th respondent's appointment was not liable to be approved due to pupil strength considerations.
Final Decision: The court quashed the order denying the petitioner's appointment and directed the respondents to appoint her within a month.
The Petitioner who is the widow of a Peon who died while in service under the 4th respondent is challenging the denial of appointment to her by the 4th respondent and the order passed by the DEO saying that there is no vacancy to accommodate her, when the vacancy which occurred on the death of her husband continues to remain vacant without promoting the Full Time Menial (FTM) in the sanctioned post against that vacancy and appointing her against the consequential vacancy.
2. The question to be considered is whether a claimant under Rule 9A of Chapter XXIVA/Rule 51 B of chapter XIVA or an FTM who was appointed but not approved consequent to reduction of post is entitled to preference against the first vacancy which arises in the School.
3. The petitioner's husband died on 06.01.2016, while he was working as a Peon in the 4th respondent School. Petitioner aged 51 and 2 minor girl children aged 15 and 13 lost the only breadwinner of the family and are finding it difficult to survive. Petitioner submitted Ext.P4 application along with all the requisite documents before the 4th respondent on 14.01.2016. She thereafter approached the Educational Authorities also along with Ext.P7 and Ext.P8 letters. The petitioner submits that application was again submitted before the Manager, requesting for compassionate appointment.
4. As no action was taken, she filed this writ petition. On the basis of the interim order passed by this Court on 18.05.2016, the 3rd respondent considered the case of the petitioner and passed Ext.P10 order. Petitioner amended the writ petition incorporating the challenge against Ext.P10 order.
5. In Ext.P10 the DEO, after hearing the petitioner as well accommodate the petitioner under the 4th respondent School. It was further stated that there is a Rule 43 claimant against the vacancy of Peon. The total number of posts of non teaching staff, sanctioned in the staff fixation proceedings of 2015-2016 are 1 post of Clerk, 2 posts of Office Attender and 1 post of FTM. The DEO found that there was reduction in the strength of pupils in the year 2015-2016 and accordingly one post of FTM became surplus and the only available vacancy of Peon was liable to be filled up by the rule 43 claimant. It was further stated that the Manager had informed that petitioner would be granted appointment against the next arising vacancy.
6. The order Ext.P10 is challenged stating that the finding of the DEO that there is no established vacancy to accommodate petitioner is factually incorrect. It is her case that the vacancy of Peon held by her husband remains vacant. Sri. Suresh, the incumbent in the sanctioned post of FTM is eligible for promotion against that vacancy and she is liable to be appointed against the consequential vacancy of FTM. She points out that appointment of 5th respondent as Full Time Menial (FTM) as per order dated 22.05.2015 was null and void on several reasons and he has no right for that vacancy in preference to her.
7. The 4th respondent Manager has filed a counter affidavit. According to him, 2 posts of FTM were sanctioned in the School in the staff fixation proceedings for the year 2010-11. In G.O.(P) No.199/2011/G.Edn dated 1.10.2011, Government ordered to follow the staff fixation order for the year 2010-11 for the subsequent years. It was only when Ext R4(a) staff fixation order for the year 2015-16 was issued on 27.4.2016, that there was reduction of 1 post of FTM. At the same time in 2014-15 there were 2 posts. According to the Manager the appointment of 5th respondent was made against a vacancy which arose on promotion of the then incumbent as Clerk. In para.5 of counter affidavit it is stated as follows:
"A regular vacancy of FTM has to be occurred in the School on promotion of Sri. Suresh Babu the senior FTM as Peon against the vacancy occurred on the death of Sri. Aniyan Pillai, Peon, the husband of petitioner on 6.1.2016.The 5th respondent is entitled to continue till 27.4.2016 and he is liable to b
