Kerala High Court
Dincy Davis vs The State Of Kerala on 25 March, 2025
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W.P(C) No.29378 of 2019 2025:KER:25087
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
WP(C) NO. 29378 OF 2019
PETITIONER:
DINCY DAVIS, AGED 31 YEARS,
W/O. JOGY ISSAC, FULL TIME MENIAL,
MATHA HIGH SCHOOL, MANNAMPETTA,
THRISSUR DISTRICT-680 325.
BY ADVS.
BRIJESH MOHAN
RESMI G. NAIR(K/1692/1999)
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT ANNEXURE-11,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM-695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION,
AYYANTHOLE, THRISSUR DISTRICT-680 003.
4 THE DISTRICT EDUCATIONAL OFFICER,
THRISSUR-680 001.
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5 THE CORPORATE MANAGER,
CORPORATE EDUCATIONAL AGENCY,
ARCHDIOCESE OF THRISSUR, THRISSUR-670 005.
BY GOVERNMENT PLEADER, SRI.T.JAYAN
BY SRI.TONY GEORGE KANNANTHANAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2025,
THE COURT ON 25.03.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner has filed the captioned writ petition seeking
to challenge the appointment granted to her pursuant to Ext.P6
in the post of Full Time Menial (FTM) issued by the 5th respondent
Corporate Management, pointing out that she was entitled for
consideration for appointment alteast from 2009 onwards.
2. The petitioner's mother was working with the 5th
respondent, Corporate Management, as an L.G. (Hindi) teacher.
The petitioner's mother is stated to have passed away on
12.09.1993. The petitioner attained majority on 27.06.2006 and
submitted an application seeking compassionate appointment on
13.04.2007. The Manager refused to extend the appointment as
above. The matter was considered by the Government pursuant
to a revision petition filed by the petitioner. The Government
found that insofar as the application filed did not contain the
required documents, the rejection of the application by the 5th
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respondent was in order. At the same time, it was further found
that the Manager should have given a reasonable time for
resubmitting the application. Therefore, the petitioner was
directed to submit the revised application with the required
documents within a time frame, further directing the Manager to
appoint the petitioner "in the existing vacancy or arising vacancy
if no vacancy is existing in the school", provided the petitioner
satisfies the conditions laid down in the Government Order
referred to earlier.
3. The petitioner preferred W.P(C) No.3237 of 2012,
seeking implementation of the above. The Manager filed W.P(C)
No.7160 of 2012 seeking to challenge the same. This Court, by
Ext.P2 judgment dated 21.10.2016, disposed of both the writ
petitions by a common judgment. It was found by this Court in
Ext.P2 judgment that the petitioner(claimant) was not qualified
for the post of LPSA/UPSA either on the date of submission of
the application or on the last date for submission of the
application. At the same time, this Court further found that since
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the petitioner had passed SSLC and plus two qualifications within
the time limit, she was qualified to hold the post of FTM, which
comes within the zone of compassionate appointment scheme in
the aided schools. In paragraph 37 of the judgment, this Court
recorded the contention raised by the learned counsel for the
petitioner as under:
"Though the claimant was not qualified to hold the post of
LPSA/UPSA within the time limit as per the compassionate
scheme, the counsel for the claimant has now submitted that
in view of these findings of this Court, this Court may direct
the consideration of the claimant for appointment to the post
of full time menial in the existing vacancy or in the arising
vacancy and that the petitioner's consequential benefits in
that regard should also be duly protected by this Court."
(Underlining supplied)
Taking note of the contentions raised as above, this Court
ultimately issued the following directions:
"40. Accordingly, the following directions are issued:
(i) The direction in the impugned revisional order as per
G.O(Rt.)No.5081/ 2000/G.Edn. dated 17.11.2011 to the
extent it orders that the claimant is eligible to be considered
for the post of L.P.S.A./U.P.S.A. under the compassionate
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appointment scheme, is illegal and ultra vires. To that extent,
the said direction will stand rescinded.
(ii) The direction issued in the above referred impugned
revisional order that "The Manager is directed to appoint the
petitioner in the existing vacancy or arising vacancy, if no
vacancy is existing, in the school, only if the applicant satisfies
all conditions laid down in G.O(P) No.12/99/ dated 24.5.1999..
.... ." will stand upheld to the extent it is applicable to any posts
other than L.P.S.A/U.P.S.A., for which the claimant had
acquired all the qualifications as on 30.5.2009.
(iii) As the claimant contends that she had all the requisite
qualifications for holding the post of Full Time Menial, even as
on the date of submission of the claim in April, 2007, the
respondent corporate manager will consider the eligibility of
the claimant for appointment to the said post and examine
whether she had attained all the requisite qualifications to hold
that post at least as on 30.5.2009 (prescribed last date for
submission of the application) and examine whether the
claimant satisfies all the conditions laid down in
G.O(Rt.)No.12/99/P&ARD dated 24.5.1999 and consider the
claim of the claimant for appointment to the post of Full Time
Menial in terms of the directions issued in the impugned
revisional order and in terms of the provisions contained in
Ext.R-1(a) scheme. In that regard, it is made clear that the
income criteria that is to be reckoned by the manager is as to
whether the claimant has satisfied the prescribed income limit
criteria as on April 2007, in case the claimant has satisfied all
W.P(C) No.29378 of 2019 2025:KER:25087
the qualifications to hold the post of Full Time Menial at that
time. Necessary steps in this regard should be completed by
the corporate manager without much delay, at any rate, within
a period of 3 months from the date of production of a certified
copy of this judgment.
(iv) The contentions raised by the claimant regarding
consequential benefits are left open and it is for the claimant
to agitate such claims as mentioned hereinabove, before the
appropriate authorities, at the appropriate time."
Thus, this Court, by Ext.P2 judgment, found that the Manager is
to consider the eligibility of the petitioner for appointment to the
post of FTM and to examine whether the petitioner had obtained
the requisite qualification atleast as on 30.05.2009. The
judgment at Ext.P2 was not accepted by the Manager, who filed
Writ Appeal No.111 of 2017.
4. On 20.02.2017, a Division Bench of this Court while
admitting the appeal, issued the following order:
"Admit. Government Pleader takes notice for the first
respondent. Issue urgent notice by speed post to the second
respondent. In the meantime, the appellant shall consider the
application submitted by the second respondent evidenced by
Exts.P3 and P3(a) as directed in Clause 3 of paragraph 40 of
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the judgment appealed against to a post to which the second
respondent was qualified to be considered as on the last date
on which she could have sought appointment under the Dying
in Harness Scheme. She shall also be provisionally appointed,
subject to further orders in this writ appeal."
The appeal stood finally disposed of on 21.12.2018 by a Division
Bench of this Court as evidenced by Ext.P3 judgment. The
findings in Ext.P2 judgment by the learned Single Judge were
upheld. In paragraph 20 of the judgment while dismissing the
appeal, the Division Bench of this Court noticing that the matter
is quite old, issued the following further directions:
"We direct the Manager to appoint her as expeditiously as
possible at any rate within a period of two months from the
date of receipt or production of a copy of this judgment."
(underlining supplied)
The Manager further preferred a review petition - R.P.No.220 of
2019 in W.A.No.111 of 2017, seeking review of Ext.P3 judgment.
Another Division Bench of this Court as per Ext.P4 order dated
29.07.2019, dismissed the review petition. Complaining that
even on the face of all the above, the petitioner was not
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appointed, she preferred Cont.Case(C) No.1051 of 2019 and by
Ext.P5 judgment dated 19.08.2019, the Contempt of Court Case
was disposed of recording the subsequent development as
above, however, permitting the petitioner to work out her
remedies in accordance with law. It is in such circumstances,
the petitioner has filed the captioned writ petition, seeking the
following reliefs:
i. Call for the records relating to Ext.P6, and set aside the
original of the same to the extent it failed to grant
appointment against the first arising vacancy occurred in the
category of non-teaching staff after 27.06.2009 by way of a
writ of certiorari or other appropriate writ or order.
ii. Issue a writ of mandamus or writ order or direction
commanding the 5th respondent to grant appointment to the
petitioner as FTM against the existing vacancy under the
management on 26.06.2009 or the first vacancy occurred
thereafter and grant promotion as LPSA/UPSA subsequent
to the appointment of the FTM against the first vacancy
occurred after 26.06.2009 and HAS (Maths) occurred after
26.03.2014 in terms of Rule 43 Chapter XIVA KER.
iii. To declare that the petitioner is entitled to get notional
appointment as non teaching staff occurred against the 1 st
vacancy that arose on or after 27.06.2009 under the
management and Rule 43 promotion as UPSA/LPSA against
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the first vacancy occurred thereafter subsequent to
16.10.2009 and HSA(Maths) vacancy occurred after
25.03.2014.
iv. Issue a writ of mandamus directing the respondents to grant
appointment to the petitioner against the 1st non-teaching
vacancy that has arisen on or after 27.06.2009 and grant
Rule 43 promotion as UPSA/LPSA vacancy occurred
thereafter subsequent to 16.10.2009 and HSA(Maths)
vacancy occurred after 25.03.2014.
5. I have heard Sri.Brijesh Mohan, the learned counsel for
the petitioner, and Sri.Kurian George Kannanthanam, the learned
senior counsel for the 5th respondent Corporate Manager.
6. Sri.Brijesh Mohan would contend that the petitioner's
claim for appointment to the post of FTM has crystallized
pursuant to her original application as well as Ext.P1 Government
Order as modified by Ext.P2 judgment. In the light of the afore,
he points out that the appointment by Ext.P6 order has taken
place only on 29.07.2019, pursuant to Ext.P5 order. Therefore,
according to him, the petitioner is to be atleast notionally
directed to be appointed against the 1st arising vacancy in the
category of non-teaching staff after 27.06.2009 (3 years from
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maturity) as prayed for in the writ petition. He would rely on the
judgment of this Court in Lekha K.R. v. District Educational
Officer and Others [2015 (3) KLT 609].
7. Per contra, Sri.Kannanthanam, the learned senior
counsel, would contend that the petitioner has claimed for
appointment against the first arising vacancy after 27.06.2009,
which cannot be accepted in view of the fact that the Government
while issuing Ext.P1 has upheld the rejection of the application
by the Manager, that the directions in Ex.P1 if at all was for
appointment to the post of LPSA/UPSA under the dying in
harness scheme, that the ultimate eligibility for appointment to
the post of FTM has crystallized only when Ext.P2 judgment was
issued on 21.10.2016, etc. He would also contend without
prejudice to the contention raised as above, that even if the
petitioner only seeks for notional benefits insofar as various other
teachers are sought to be disturbed, without impleading them in
the party array, the petitioner may not be entitled to maintain
this writ petition.
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8. I have considered the rival submissions as well as the
connected records.
9. The facts are not in dispute. The short issue arising for
consideration is the petitioner's entitlement to appointment to
the post of FTM from an anterior date to Ext.P6 order.
10. As already noticed, the petitioner's application seeking
appointment was originally rejected. It is against the afore
rejection, the matter was taken to the Government leading to
Ext.P1 order. The Government has categorically upheld the
rejection of the application. It is thereafter, the petitioner was
permitted to submit a revised application with relevant records
within a time frame directing the petitioner to be appointed in
the "existing vacancy or arising vacancy". From this, it is quite
clear that assuming that the petitioner becomes eligible for
appointment to any post, that is only with reference to the
revised application to be presented after the date of Ext.P1
Government Order - 17.11.2011. In the light of the afore, the
prayers in the writ petition seeking appointment in the first
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arising vacancy after 27.06.2009, may not be available to the
petitioner.
11. Sri.Kannathanam raised a technical contention that
since the claim is with reference to the first vacancy to arise after
27.06.2009, in the light of the wordings of Ext.P1 Government
order, the petitioner may not be entitled for any of the reliefs.
On a literal consideration of the prayers in the writ petition, the
contention raised deserves to be accepted. But I am of the
opinion that the petitioner's claim is not to be rejected on such a
hypertechnical interpretation of the prayers in the writ petition.
Sri.Brijesh would also contend that the petitioner was entitled to
be considered in any of the subsequent vacancies reflected in
Ext.R5(a) chart of regular vacancies of FTM under the 5th
respondent, to contend that the petitioner could have been
accommodated in any of the vacancies to which appointments
were effected after the date of Ext.P1 Government Order. At
first blush, this contention appears attractive.
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12. However, as already noticed, while rendering Ext.P2
judgment on 21.10.2016, in paragraph 37, the contention raised
by the petitioner for consideration for appointment to the post of
FTM in the "existing vacancy or in the arising vacancy" is
specifically noticed. Therefore, Sri.Brijesh, may not be justified
in staking a claim with reference to the date of Ext.P1
Government Order.
13. Sri.Brijesh Mohan would further contend that atleast
the petitioner ought to have been appointed with reference to
the vacancy which arose after Ext.P2, relying on the interim
order of the Division Bench dated 20.02.2017 noticed earlier.
However, I find that when the Division Bench finally rendered
Ext.P3 judgment, in paragraph 20, the Manager was directed to
make the appointment within a period of two months from the
date of receipt or production of the copy of the judgment. Ext.P3
judgment was issued on 21.12.2018. If two months' time is
calculated from that date, the Manager had time till 20.02.2019
to make an appointment. The petitioner has been admittedly
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accommodated in the next vacancy as seen from Ext.R5(a) at
serial No.43. Hence, I am of the opinion that the Manager has
acted on the basis of the directions contained in Ext.P3 and the
petitioner cannot have any grievance for that reason.
14. Apart from the above, I notice that the petitioner is
seeking notional benefits from a date anterior to Ext.P6 and that
would definitely affect the rights of some other person/s who
were employed with the 5th respondent herein. The petitioner
has not chosen to implead the affected person/s even after the
requirement has been made clear through Ext.R5(a) by the 5th
respondent. In such circumstances, I am of the opinion that the
petitioner is not entitled for any of the reliefs as prayed for in this
writ petition.
Resultantly, this writ petition would stand dismissed.
Sd/-
HARISANKAR V. MENON, JUDGE
ln
W.P(C) No.29378 of 2019 2025:KER:25087
APPENDIX OF WP(C) 29378/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GO(RT) NO 5081/2011/G.EDN
DATED 17.11.2011.
EXHIBIT P2 TRUE COPY OF JUDGMENT IN WPC NO 3237/2012 DATED
21.10.2016.
EXHIBIT P3 TRUE COPY OF JUDGMENT IN WA NO 111/2017 DATED
21.12.2018.
EXHIBIT P4 TRUE COPY OF ORDER IN R.P NO 167/2019 DATED
29.7.2019.
EXHIBIT P5 TRUE COPY OF JUDGMENT IN CC (C)NO 1051/2019
DATED 19.8.2019.
EXHIBIT P6 TRUE COPY OF THE APPROVAL ORDER DATED 29.7.2019
EXHIBIT P7 TRUE COPY OF THE ORDER IN SLP NO.32524/2019
DATED 23.09.2019.
RESPONDENTS' EXHIBITS:
EXHIBIT R5(A) COPY OF CHART SHOWING THE REGULAR VACANCIES OF
FTM, UNDER THE VARIOUS SCHOOLS UNDER THE
CORPORATE EDUCATIONAL AGENCY.
EXHIBIT R5(B) COPY OF INTERIM ORDER DATED 9-9-2016 IN
WP(C)NO.7160/12 OF THIS HON. COURT.
EXHIBIT R5(C) COPY OF ORDER DATED 20-2-2017 IN WA.NO.112/2017
OF THIS HON. COURT.
W.P(C) No.29378 of 2019 2025:KER:25087
EXHIBIT R5(D) COPY OF JUDGMENT DATED 19-8-2019 IN CON.CASE(C)
1051/19 IN WPC. 3237/12 OF THIS HON. COURT.
EXHIBIT R5(F) COPY OF ORDER DATED 22-12-2022 IN W.P(C)NO.
29378/19 OF THIS HON. COURT.
EXHIBIT R5(G) COPY OF JUDGMENT DATED 5-6-2023 IN CON. CASE
(C) 480/2023 OF THIS HON. COURT.
EXHIBIT R5(E) COPY OF G.O(RT)NO. 810/2023/GEDN DATED
30-1-2023
