K.M. Anandavally vs State Of Kerala And Ors

This writ petition is filed seeking the following prayers:-

(i) Declare that the petitioner is entitled to be appointed as PTCM in Chembakassery T.T.I under the 4th respondent management against the

resultant vacancy arose out of promotion given to Smt.Shamla with effect from 01.06.2017.

(ii) Declare that the appointment of the 5th respondent is null and void.

(iii) Call for the records leading to Exhibit P14 and may quash the same by issuing a writ in the nature of certiorari.

(iv)Issue a writ in the nature of mandamus commanding the respondents 1 to 3 to realize the loss caused to the Government, from the 4th

respondent, treating that the same as arrears on Land Revenue,as provided under the statute.

(v) Issue a writ in the nature of mandamus commanding the 4th respondent to compensate the petitioner for denial of employment.

Heard the learned counsel for the petitioner and the learned Government Pleader.

The learned counsel for the petitioner submits that the petitioner was appointed as P.T.C.M in the Chembakassery T.T.I managed by the 4th

respondent w.e.f. 01.06.2002. It is submitted that while she was awaiting for approval, she was denied employment w.e.f. 11.12.2003. On

representation being submitted by the petitioner, an enquiry was conducted by the Deputy Director of Education, Ext.P4 report was submitted. It was

found in Ext.P4 that the petitioner was terminated without any reason and that she is entitled to reinstatement. By Ext.P5 letter dated 22.07.2008, the

Government required the Director of Public Instruction to instruct the Manager to reinstate the petitioner. By Ext.P6, the DEO approved the

petitioner's appointment and also directed the Manager to reinstate the petitioner.

Smt.Shamla, who was appointed as P.T.C.M in the petitioner's place, had challenged Ext.P6 order by filing W.P. (C) No.32103/2008 while the

petitioner filed W.P.(C) No.20306/2009 seeking the benefits of approval. The writ petitions were heard together and Ext.P7 common judgment was

rendered directing the approval of the petitioner's appointment from 01.06.2002 to 10.12.2003 and payment of salary for the said period. It is

contended that approval was granted by the Educational Authorities as directed. It is stated that a vacancy of P.T.C.M arose in the school on

01.06.2017. The petitioner raised a claim for appointment, which was allowed by the DEO by Ext.P9. When the order was not implemented, the

petitioner filed W.P.(C) No.11222/2018 wherein it was contended by the Manager that statutory revision petitions had been filed against Ext.P9. By

Ext.P13 judgment dated 03.07.2018, the writ petition was disposed of directing the consideration of the revision petitions filed by respondents 4 & 5 by

the Government, after hearing all concerned. Ext.P14 order passed by the Government allowing the revision petitions and rejecting the claim of the

petitioner is under challenge herein.

The learned counsel for the petitioner submits that the petitioner admittedly has approved service as part time contingent menial in the T.T.I from

01.06.2002 to 10.12.2003. It is, therefore, contended that the petitioner's claim for appointment against the vacancy of P.T.C.M which arose on

01.06.2017 is a statutory claim and, as such, the rejection of such claim without any valid reason was unwarranted. It is further contended that the

revision petitions filed against Ext.P9 were highly belated and that the conduct of the Manager was clearly against the provisions of the Act and

Rules.

The learned counsel for the petitioner placed reliance on an unreported judgment of this Court in W.P.(C) No.9446/2006 to contend that approval

granted to an appointment cannot be reopened in Revision by the Government after a long lapse of time. In W.A No.595/2008, by judgment dated

13.03.2008, a Division Bench of this Court held that though there is no time limit prescribed in Rule 92, Chapter XIVA, KER, the power of revision

can be exercised only within a reasonable time limit. A decision of a Division Bench of this Court in Manager M.M.H.S vs. Deputy Director (1994

KHC 82) is also relied on to contend that where appointments under Rule 51A of Chapter XIVA of KER are denied, the wronged teacher is entitled

to claim damages from the Manager for the delay in granting appointment.

A counter affidavit is filed on behalf of respondents 4 & 5. It is contended that even in Ext.P4 enquiry report, there is clear reference to the fact

that the petitioner had produced a 'Jathakam' showing her date of birth as 08.05.1962 and two school admission registers showing two other dates, ie;

03.12.1963 and 03.12.1956 respectively. It is stated that when she was confronted with the differing dates in the documents produced by her, the

petitioner had abandoned her job and it was in the above background that the proposal for approval was withdrawn by the Manager. Ext.R4(C) which

is a copy of the counter affidavit filed by the Joint Managers in W.P.(C) No.32103/2008 is produced and relied on in support of these contentions. It is

submitted that a reading of Ext.P7 judgment would reveal that these facts were noticed by this Court and approval was granted to the appointment of

the petitioner from 01.06.2002 to 10.12.2003 for the limited purpose of permitting her to draw salary. It is submitted that the fact that this Court did not

interfere with the appointment of Smt.Shamla w.e.f 16.07.2007 would show that the approval granted to the petitioner was for the limited purpose of

salary and that the claim raised now is therefore totally misconceived. It is further submitted that the claim is clearly barred by the principles of res

judicata and constructive res judicata. It is submitted that several appointments had been made in non teaching posts after the petitioner left the post

and the claim now raised against a post in 2017 is clearly on an experimental basis and is devoid of merits.

The 6th respondent has also filed a counter affidavit supporting the Manger.

I have considered the contentions advanced. Though a reply affidavit is filed by the petitioner to the counter affidavit filed on behalf of respondents

4 & 5, the contentions that the petitioner had produced three conflicting proofs of date of birth and that she abandoned service stand uncontroverted. I

notice that the approval granted to the petitioner's appointment by Ext.P6 was subject to challenge and it was only by Ext.P7 judgment that the issue

was considered by this Court. A reading of paragraph 5 of Ext.P7 and the directions therein would show that the approval to the petitioner's

appointment was for the limited purpose of enabling her to draw salary for the period from 01.06.2002 to 10.12.2003. The subsequent appointment of

Smt.Shamla was left undisturbed. It is, therefore, clear that the petitioner's claim for preferential appointment is totally misconceived.

The decisions relied on by the petitioner refer to cases where approved appointments, which were not subjected to challenge being unsettled after

decades. That is not the case here. It is only by Ext.P9 order that the petitioner's appointment stood approved pursuant to Ext.P7. The contention with

regard to long unexplained delay in filing revision petition is therefore not applicable in the instant case.

The Government, in Ext.P14 considered the contentions of the parties in detail and found that this Court had not accepted the claim of the

petitioner for preferential appointment against the post which arose in 2007. It was therefore found that the petitioner had no claim against posts

arising thereafter either. All the relevant facts were considered in the impugned order. In the facts and circumstances of the instant case, I am of the

opinion that the preferential claim raised by the petitioner is totally misconceived. I find no patent illegality in the impugned order warranting

interference.

The writ petition fails and the same is accordingly dismissed.