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Judgment
This writ petition is filed seeking the following reliefs :-
“i) Declare that the petitioner is legally entitled for appointment as junior Hindi teacher â€" full time at BEMP Higher Secondary
School, Thalassery in the place of 5th respondent.
ii) Issue a writ of certiorari or other appropriate writ, direction or order quashing Exhibit.P6, P8 orders.
iii) Issue a writ of mandamus or other appropriate writ, direction or order directing the respondent educational authorities to appoint the
petitioner as junior Hindi teacher â€" full time at BEMP Higher Secondary School, Thalassery in the place of 5th respondent with effect
from 1/7/2015 with all consequential benefits including pay and allowances.â€
Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for respondents 4 and 5.
The petitioner is working as Part Time Hindi Teacher in one of the schools under the 4th respondent. He had joined service as Full Time Menial on
11.7.2012. He was promoted as peon on 2.6.2014. He became qualified for appointment as Lower Grade Hindi teacher on 30.4.2015 and the
qualification was endorsed in his service book on 12.5.2015. It is stated that a full time vacancy of Hindi teacher arose in the BEMP HSS, Thalassery
in the year 2015-16. The 5th respondent was appointed in the said vacancy. The approval for appointment of the 5th respondent was rejected by the
educational authorities. However, by Ext.P6, the 1st respondent found that the vacancy which arose consequent to the retirement of Smt.Shyma,
Junior Grade Hindi teacher, on 31.3.2015 was liable to be filled up by appointing the 5th respondent, who is a Rule 51B claimant. It was found that it is
only when there are no claimants under Rules 51A, 51B or Rule 43 of Chapter XIV A KER that a non-teaching staff would be eligible to be
considered for appointment against a teaching post. The appointment of the 5th respondent was, therefore, directed to be approved. The petitioner
challenged Ext.P6 order before this Court and by Ext.P7 judgment, a revision petition preferred against Ext.P6 was directed to be considered. The
Government, by Ext.P8 order, has upheld the view taken by the 1st respondent in Ext.P6 and found that the 5th respondent was eligible for
appointment, being a claimant under Rule 51B of Chapter XIV A KER.
The learned counsel for the petitioner submits that a Rule 51B claimant is not a teacher for the purpose of the Rules. It is stated that the claim of
the 5th respondent was clearly belated since the death was in 1983 and the 5th respondent admittedly became major in 1988. It is stated that the claim
raised is only in the year 2006 and that the decisions of this Court in Sreeja v. Chief Postmaster General [2001 (1) KLT 356], Deepak v. Secretary,
General Education Department [2002 (3) KLT 288] and Sukumaran Nair v. State of Kerala [2005 (1) KLT 430] are authority on the point that an
application for compassionate appointment is to get over the sudden crisis which befalls the family due to the death of the sole breadwinner and must
be proximate in time to the death. It is submitted that Note 1 to Rule 1(1) of Chapter XIV A KER specifically provides that a member of the non-
teaching staff shall be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for
promotion or for appointment to such post under the rules. It is contended by the learned counsel for the petitioner that the 5th respondent, who was
only a Rule 51B claimant, is not a teacher for the purpose of the rules and therefore, her claim is not liable to be considered.
A counter affidavit has been placed on record by the 4th respondent. It is contended that all the contentions of the parties have been examined in
full while passing Exts.P6 and P8 orders and that the said orders are perfectly legal and sustainable.
The 5th respondent has also placed a counter affidavit on record. It is stated therein that the application for compassionate employment was
submitted by the 5th respondent immediately after he became major in the year 1988. It is submitted that the provision for compassionate employment
had been introduced in the KER only on 30.3.1990. Thereafter also, the provision was under orders of stay, which was vacated only on 16.1.1997. It
is contended that the 5th respondent's claim was not considered on the ground that a special order from the Government is required for considering the
same. It is submitted that it was only by Ext.R5(a) communication dated 22.10.2007 that the 5th respondent was informed that the management could
consider his claim without any directions from the Government. It is submitted that a writ petition had been filed thereafter and Ext.R5(b) interim order
was passed directing consideration of the 5th respondent's claim. By Ext.R5(c) judgment, the writ petition was disposed of directing consideration of
the claim against any of the vacancies which arise after 1.4.2010. It is stated that all appointments made in the educational agency after Ext.R5(b)
interim order were questionable. It is stated that the petitioner in the writ petition was later appointed as Lower Grade Hindi Teacher â€" part time
with effect from 19.11.2015. Relying on the decisions of this Court in Sathyanarayanan v. AEO [2000 (3) KLT SN 14] and Reghu v. State of Kerala
[2000 (2) KLT 29], it is contended that a non-teaching staff is eligible for promotion and appointment as teacher only in the absence of claimants
under the Rules. It is submitted that since the 5th respondent is clearly a claimant under Rule 51B, he is eligible for appointment to the vacancy which
arose in 2014-15 in preference to the petitioner. It is further contended that the vacancy occurred due to a retirement on 31.3.2015 and that therefore,
the vacancy arose on 1.4.2015. As on the date of occurrence of vacancy, the writ petitioner is admittedly not qualified since he claims to have
acquired the qualification for appointment as Lower Grade Hindi Teacher only on 31.4.2015.
The 3rd respondent has also placed a counter affidavit on record. It is stated that the 5th respondent was appointed as Full Time Hindi Teacher in
the BEMP HSS, Thalassery with effect from 1.7.2015 in the vacancy of Smt.Shyma, Hindi Teacher, who retired on 31.3.2015. It is contended that
since the 5th respondent was a 51B claimant, who was available as on the date of occurrence of vacancy, the 5th respondent is liable to be appointed
against the said vacancy.
The learned counsel for the petitioner thereafter produced Exts.P9 to P11 documents to show that though the certificates of the petitioner were
dated 30.4.2015, the examination was conducted in March, 2015 and therefore, he should be deemed to have been qualified as on the date of
occurrence of the vacancy.
I have considered the contentions advanced. It is true that the 5th respondent's mother had died in the year 1983 and the 5th respondent had
become major in 1988. At that time, there was no rule providing for compassionate appointment in aided schools in the KER. It appears that the
petitioner had raised a claim for appointment in the school. The said claim was returned on the ground that special orders from the Government are
required for considering such a claim. The 5th respondent appears to have approached the Government in 2006. The 5th respondent was informed
that no special order is required for a consideration of the request for compassionate appointment. This was in the year 2007. The 5th respondent
approached this Court and Ext.R5(b) interim order was issued directing the 3rd respondent therein to consider his claim for appointment as Lower
Grade Hindi Teacher or at least as Full Time Menial in any existing vacancy. Such consideration was not done. Ultimately, the writ petition was
disposed of by Ext.R5(c). Taking note of the contention of the Manager that no vacancy of a Full Time Menial or Junior Hindi Teacher was available
on any of the schools to appoint the 5th respondent, this Court directed the 3rd respondent to consider the claim of the 5th respondent for appointment
in any of the schools under the corporate management against any of the vacancies which occurred with effect from 1.4.2010. It was made clear that
the 3rd respondent shall not effect any further appointment without considering the claim of the 5th respondent under Rule 51B as recognised by the
3rd respondent in Ext.P4. This judgment has long become final. The facts pleaded in the writ petition would show that it was only on 11.7.2012 that
the petitioner was appointed as Full Time Menial in the CMS High School, Arapetta. If that be so, even the said appointment was against the
directions issued by this Court. The writ petitioner cannot, at this distance of time, challenge the concluded findings that the 5th respondent is a Rule
51B claimant. It is too late in the day, in the light of Ext.R5(b) order and Ext.R5(c) judgment to contend that the claim of the 5th respondent was
belated and ought not to have been considered by the 4th respondent.
Therefore, the only further question which arises for consideration is whether the petitioner has a better claim for appointment against the post of
Full Time Junior Language Teacher against which the petitioner was appointed. Note 1 to Rule 1(1) of Chapter XIV A KER reads as follows :-
“Note:- (1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for
appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post
under these rules.â€
The contention of the petitioner is that it is only the claim of a teacher which is liable to be considered and that therefore, only a Rule 43 claimant
would be entitled to preference as against a member of the non-teaching staff, who claims the appointment as teacher. However, this Court, in the
decisions relied on by the learned counsel for the 5th respondent, has specifically held that a member of the non-teaching staff with prescribed
qualification can claim appointment as a teacher only when there is no teacher eligible for promotion or for appointment. It was held that a claimant
under Rule 51A is also a teacher for the purpose of the Note. The language of the Note 1 would make it clear that the reference is not only to existing
teachers, but also to claimants for appointment under the Rules. If that be so, a claimant for compassionate appointment would also be liable to be
considered before a non-teaching staff is given appointment as teacher. Moreover, it is the specific case of the petitioner that he became qualified for
appointment as Junior Grade Hindi Teacher on 30.4.2015. It is clear that since the vacancy arose on account of a retirement on 31.3.2015, the date of
occurrence of vacancy was 1.4.2015. The vacancy could be filled up only on the reopening day on account of the restrictions contained in the rules.
Therefore, even going by the petitioner's own showing, his certificates being dated 30.4.2015, he was not qualified as on the date of occurrence of
vacancy for appointment as Hindi Teacher. For these reasons and in view of the fact that the contentions raised have been properly considered in
Exts.P6 and P8 orders, I am of the opinion that the prayers sought for in the writ petition cannot be granted.
The writ petition fails and the same is, accordingly, dismissed.