State Of Kerala vs Jasil. P.M

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated 06.08.2021 in W.P.(C) No.2455 of 2021. Respondents 1 to 4 in the writ petition are the appellants in the appeal. Parties and documents are referred to in this judgment, as they appear in the writ petition.

The petitioners were appointed on 12.06.2018 as Full Time Contingent Menials in Sanskrit High School, Vattoli (the school). Earlier on 04.07.2016, one K.K.Bijosh preferred an application before the Government for condoning the delay in preferring a claim for appointment in the School under Rule 51B of Chapter XIV-A of the Kerala Education Rules (KER). The said fact was not brought to the notice of the Manager of the School by the Government. As such, the Manager was not aware of the pendency of this application when the petitioners were appointed in the School. However, by the time the proposals made by the Manager for approval of the appointments came up for consideration before the Educational Officer, the Government allowed the request made by K.K.Bijosh, and the delay on his part in preferring the claim for appointment under Rule 51B was condoned. The Manager, on coming to know of the said decision of the Government, challenged the same in W.P.(C) No.20794 of 2019 before this Court. Consequently, the proposals made by the Manager for approval of the appointment of petitioners 1 and 3 were returned by the Educational Officer with liberty to resubmit the same after the disposal of the writ petition preferred by the Manager. The proposals made by the Manager for approval of the appointment of the second petitioner was, however, rejected by the Educational Officer pointing out a few defects. The Manager challenged those decisions in appeals and revisions before the statutory authorities. While those matters were pending, the petitioners approached this court in the writ petition seeking to quash the orders issued by the authorities on the proposals made for approval of their appointments and orders directing the Educational Officer to approve their appointments.

The learned Single Judge considered the writ petition along with W.P.(C) No.20794 of 2019. As far as W.P.(C) No.20794 of 2019 is concerned, having noticed that there was a delay of almost 14 years in preferring the claim for appointment under Rule 51B and the contention of the Manager that the Government has no authority to condone such a long delay, the learned Single Judge took the view that an order in the nature of one passed by the Government ought not have been passed without affording to the petitioners an opportunity of hearing. Consequently, the learned Single Judge set aside the order of the Government and directed the Government to consider the application afresh after affording K.K.Bijosh as also the Manager an opportunity of hearing. As far as the writ petition is concerned, the learned Single Judge took the view that since the petitioners were appointed before orders had been passed by the Government on the application preferred by K.K.Bijosh, there cannot be any impediment in approving the said appointments. Consequently, the writ petition was allowed directing the Educational Officer to approve the appointments of the petitioners, if the same are otherwise in order, within two months. The official respondents have no grievance against the decision of the learned single Judge in setting aside the order issued by the Government on the request made by K.K.Bijosh and directing reconsideration of the same. They are, however, aggrieved by the direction issued by the learned Single Judge to approve the appointments of the petitioners. Hence this appeal.

In the meanwhile, pursuant to the impugned judgment, the Manager submitted proposals afresh for approval of the appointment of the petitioners. While those proposals were pending, the Government considered the request made by K.K.Bijosh afresh as directed by this Court in W.P.(C) No.20794 of 2019 and the delay in raising the claim for appointment under Rule 51B was condoned again. The order passed by the Government in this regard is part of the records in the writ appeal as Annexure A1. Consequent on the Annexure A1 order, it is seen that the proposals made by the Manager for approval of the appointment of the petitioners pursuant to the impugned judgment have been rejected again by the Educational Officer. The orders passed in this regard by the Educational Officer are also part of the records in the writ appeal as Annexures A2, A3 & A4 respectively. In the said orders, a few defects found in the proposals are also mentioned.

Heard the learned Government Pleader as also Adv.R.K.Muraleedharan, the learned counsel who appeared for both the petitioners and the Manager of the School.

The learned Government Pleader submitted that the view taken by the learned Single Judge that since the appointments of the petitioners were made prior to the decision of the Government on the application made by K.K.Bijosh, the same are liable to be approved, is unsustainable inasmuch as the appointments were made at a time when the request made by K.K.Bijosh was pending and since the same was subsequently allowed, the order relates back to the date of application and the Manager therefore, was not entitled to make fresh appointments. It was also submitted by the learned Government Pleader that insofar as a claim is made for appointment under Rule 51B, the authorities cannot be found at fault with for having withheld the approval of other appointments which are likely to affect the claim until the disputes relating to the claim are finally resolved.

Per contra, the learned counsel for the petitioners as also the Manager of the School contended that in the absence of any claim for appointment under Rule 51B within the time stipulated, there cannot be any impediment for the Manager in making appointments in the School, and the authorities cannot decline approval of the appointments lawfully made on the ground that the Government has subsequently condoned the delay in preferring the claim under Rule 51B. It was also pointed out that Annexure A1 order has also been challenged by the Manager before this court in W.P.(C) No.15558 of 2022 and the same is pending.

We have considered the contentions raised by the learned counsel for the parties on either side.

There is no dispute to the fact that K.K.Bijosh has not raised any claim for appointment under Rule 51B within the time stipulated. There is also no dispute to the fact that it is after almost 14 years that he had preferred the application before the Government for condoning the delay. Further, there is also no dispute to the fact that insofar as the order passed on the said application by the Government has been set aside by this Court, the application aforesaid is still pending. It was while the said application was pending that the Manager has appointed the petitioners in the School on 12.06.2018. The short question is as to whether the educational authorities were justified in withholding the proposals for approval of the appointment of the petitioners on the ground that an application for condoning the delay in raising a claim for appointment under Rule 51B preferred prior to the appointment has been subsequently allowed. There is certainly force in the submission made by the learned Government Pleader that if a claim is made for appointment under Rule 51B, it may not be appropriate for the Manager to fill up an existing vacancy without considering the said claim and the educational authorities would also be justified in withholding the approval of appointments made ignoring such a claim. But, in a given case where there is no claim under Rule 51B, there cannot be any impediment for the Manager to make appointments, and mere pendency of a request made by the dependent of a staff who died in harness, for condoning the delay in raising the claim, does not preclude the Manager from making appointments. The reason being that, in terms of the provisions contained in the Kerala Education Act and the KER, the Manager is obliged under law to fill up the vacancies in the School and the Manager is not expected to withhold the appointments until the Government takes a decision on the request for condoning the delay in preferring the claim, for the Government may or may not condone the delay. The learned Single Judge, in the circumstances, cannot be faulted for having disposed of the writ petition directing the educational authorities to approve the appointments of the petitioners, if the same are otherwise in order.

On a query from the Court, the learned counsel for the Manager conceded that if the appointments of the petitioners are approved as directed by the learned Single Judge, in the event of the dismissal of the writ petition preferred by the Manager against Annexure A1 order, there would not be any vacancy to accommodate K.K.Bijosh. Insofar as K.K.Bijosh is not a party to this proceedings and having regard to Annexure A1 order, we deem it appropriate to clarify that the compliance of the direction issued by the learned Single Judge for approving the appointment of the petitioners will be subject to the outcome of W.P.(C) No.15558 of 2022. It is also clarified that the Manager would be bound to clarify the defects noted in the proposals.

The writ appeal, in the circumstances, is dismissed with the above observation.