Basheer Mather vs The State of Kerala

Antony Dominic, J.—Petitioner in W.P(C). 14957/06 is the appellant. The issue raised in the writ petition was the legality of Exts. P6 and P7 orders passed by the Government and the District Supply Officer respectively. The controversy in this writ petition is in relation to the appointment of ARD No. 141 of Ranni taluk. By Ext. P7 order, the 5th respondent was appointed as the ARD and it was this order, which was challenged in the writ petition. In the judgment under appeal, learned single Judge held that the appellant was ineligible and the application made by the 5th respondent was also defective. On that basis, learned single Judge ordered the respondents to invite applications afresh for appointment. It is this judgment, which is under challenge before us.

Heard the learned counsel for the parties and considered the submissions.

Facts of the case are that in 1995, applications were invited by the District Supply Officer for appointment of ARD No. 141 of Ward No. VII of Ranni taluk. There were three applicants. The application submitted by the 5th respondent was rejected by the District Supply Officer for the reason that he had not produced necessary documents along with the application and the appellant was appointed as the ARD. His appointment was finally confirmed by the Government by dismissing a revision filed by the 5th respondent.

The 5th respondent challenged the above proceedings in O.P. 21334/97 before this Court. That OP was disposed of by Ext. P5 judgment, directing the Government to reconsider the revision filed by the 5th respondent in the light of the principles laid down by this Court in Varkey v. State of Kerala (1984 KLT 567). The Government considered the matter afresh and by Ext. P6 order, remitted the matter to the DSO for fresh consideration. It was accordingly that the DSO reconsidered the matter and issued Ext. P7 order, whereby, the 5th respondent was appointed. It was in these circumstances, the appellant filed the writ petition challenging Exts. P6 and P7.

Before the learned single Judge, contentions raised were threefold. First one was whether the petitioner was ineligible to be considered on the ground that he was not a resident of Ward No. VII of Cherukole panchayat. Second was whether he was ineligible for the reason that his wife was a permanent ARD and the third question was whether the non-production of the documents by the 5th respondent before the DSO rendered his application defective.

In so far as the first question is concerned, placing reliance on Ext. P8 certificate issued by the Secretary of Cherukole grama panchayat, certifying that the appellant is a resident of Ward No. VII, learned single Judge held him eligible on that ground. However, on the second question whether he was disqualified for the reason that his wife was a permanent ARD, placing reliance on circular No. 10/83, learned single Judge held that he was ineligible on that ground. Proceeding to consider the third question, whether non-production of the documents by the 5th respondent before the DSO rendered his application defective, learned single Judge held that at the stage when the DSO considered the matter and issued Ext. P1 order appointing the appellant, the 5th respondent had not produced the documents which were later produced before the District Collector along with the appeal and therefore, the application of the 5th respondent was defective. With the above reasoning, learned single Judge held that the 5th respondent is ineligible for the benefit of the principles laid down by this Court in Varkey (supra). It is based on the above conclusions that the learned single Judge ordered that applications be invited afresh and appointments be made.

In so far as this writ appeal is concerned, the only question survives is whether the conclusion of the learned single Judge that the appellant was ineligible for appointment on account of the fact that his wife is a permanent ARD is legal or not. Admittedly, circular 10/83 issued by the Board of Revenue provides that both husband and wife cannot be appointed as ARDs. This circular is not under challenge in the writ petition. If that be so, subordinate officers like DSOs are bound by such circulars and if so, both husband and wife cannot be appointed as ARDs or AWDs as the case may be. If that be the position, naturally, appellant is ineligible and that conclusion of the learned single Judge does not suffer from any vitiating circumstances.

However, we notice from the memorandum of appeal that the appellant had produced Annexure A which shows that his wife expired on 7.4.2009. Therefore, according to the learned counsel, the disqualification projected against him no longer survives. We are unable to agree. The eligibility of the appellant for appointment will have to be assessed with reference to the date when the notification was issued, viz., January, 1995. As on that date, his wife was a permanent ARD. Therefore, the fact that his wife expired in the year 2009 cannot operate to his benefit. In other words, this factual position does not in any way render the conclusion of the learned single Judge incorrect.

From the above, it can be seen that the learned single Judge ordered that applications be invited afresh because he has found that the appellant was ineligible and the application made by the 5th respondent was defective. In such circumstances, we cannot say that the learned single Judge has committed any illegality, warranting interference.

Writ appeal fails. It is accordingly dismissed.