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Judgment
T.R. Ramachandran Nair, J.—The Manager of a school is aggrieved by Ext.P8 order passed by the Government, wherein the Government directed the District Educational Officer to compute the amount to be recovered from him towards compensation to a Rule 51A claimant, viz. the third respondent herein. The factual matrix of the dispute is the following: A vacancy of H.S.A. Hindi arose in the school with effect from 5.6.2000 on the retirement of Smt. V.K. Syamaladevi, H.S.A., Hindi on 30.3.2000. The petitioner promoted a Rule 43 claimant who was working as U.P.S.A. (Hindi), in that vacancy. The same was challenged by the third respondent and the District Educational Officer, after considering the claims of both parties, passed Ext.P1 order, whereby it was held that the third respondent is the eligible person for appointment.
The rule 43 claimant, viz. Smt. Neema Rajan challenged the same before this Court in O.P.No.31323/2000 along with another, which resulted in Ext.P2 judgment, which directed the parties concerned to file a representation before the Government, with a further direction that until the matter is decided, the order passed by the District Educational Officer shall not be implemented. Before the judgment was rendered, the third respondent was appointed as H.S.A., reverting Smt. Neema Rajan to the post of U.P.S.A., in implementation of Ext.P1 and the position was reversed after the judgment was received. The Government finally passed an order, Ext.P3 whereby the eligibility of the third respondent for appointment as a Rule 51A claimant, was upheld. Thereafter, the Manager issued Ext.P4 order appointing the third respondent and the said appointment has been approved already by the District Educational Officer.
After the grant of approval, the third respondent filed a representation as per Ext.P5, requesting for consideration of her claim for appointment from 5.6.2000, without salary eligibility, retrospectively from that date. This Court, by Ext.P7 judgment, directed the Government to consider the matter.
Ext.P8 order has two parts. Regarding the claim of the third respondent for appointment from 5.6.2000, it is stated in para 5 that there is no rule in the Kerala Education Rules to appoint a claimant with retrospective effect and hence the request in Ext.P3 representation lacks merit and the same is rejected. But it was further directed "that as per Rules 4 and 4(a) of Chapter III K.E.R., the Manager is liable to pay the loss sustained to the Rule 51A claimant i.e. the petitioner (third respondent herein), by denying appointment to her from the period 5.6.2000 to 29.1.2001, failing which the amount is to be recovered from the Manager under Revenue Recovery Act."
Heard learned counsel for the petitioner, learned counsel for the third respondent and learned Government Pleader.
Learned counsel for the petitioner submitted that during the pendency of the writ petition, the District Educational Officer communicated Ext.P10 letter to the Manager, so as to remit an amount of Rs.52,599/-. The third respondent, by Ext.P12, informed the District Educational Officer that the third respondent is not interested in getting the compensation. Paragraphs 4 and 5 therein are relevant and they are extracted below:
I may say that at no point of time I had made any claim against the Manager for any compensation for my delayed appointment. Further I honestly believe that the delay caused in making my appointment is not due to any fault of the Manager. Since I had not made any claim for compensation either before the Government or the Manager, I hereby forfeit the claim for compensation as ordered by the Government and it is requested your good self not to proceed with any action to recover any amount from the Manager towards compensation as ordered by the Government in G.O.(Rt) No.4254/2007/G.Edn. Dated 18.09.2007.
This representation is filed before your good self since I was informed that your good self has called upon the Manager to pay the amount due to me and to report the matter to your good self by communication dated 04/06/2011.
Learned counsel for the petitioner is right in submitting that the only issue raised before the Government by the third respondent is regarding the plea for approval of appointment from 5.6.2000, and that too without any claim for payment of salary. At no point of time the third respondent raised a claim for compensation before the Government. Evidently, therefore, that part of Ext.P8 whereby the proceedings have been directed to be issued against the Manager, for recovery of amounts due to the third respondent from 5.6.2000, is without notice to anybody and in the absence of any claim by the third respondent. Therefore, it was not an issue before the Government and as rightly pointed out by the learned counsel for the petitioner, the Government has erred in issuing a direction as such. The third respondent has also submitted Ext.P12 representation before the District Educational Officer informing that she is not interested in getting any compensation from the Manager. The said representation was rejected by the District Educational Officer as per Ext.P13.
Hence, Ext.P8 to the extent to which the direction to pay compensation, is not justified in the absence of a claim by the third respondent. Nowhere it is mentioned by the third respondent in the representation, that she is claiming any compensation from the Manager. Apart from that, the order which rejected the claim of the third respondent for approval from 5.6.2000, is not challenged by her and therefore the first part of the order has become final. Learned counsel for the petitioner is also right in submitting that it is in the light of Ext.P2 judgment the third respondent, even though was appointed earlier from 5.6.2000, was retrenched and Smt. Neena Rajan was promoted as H.S.A. Evidently, in Ext.P2 judgment this Court directed to keep in abeyance the proceedings of the District Educational Officer issued as per Ext.P1. Therefore, during the period in which the third respondent claimed appointment, Smt. Neena Rajan was actually working, but without approval. The said fact is also therefore important. The Manager has only obeyed the operative part of Ext.P2 judgment. These aspects have not been considered in Ext.P8. In that view of the matter, the writ petition is allowed. Ext.P8 to the extent to which there is a direction to recover the amount equivalent to the salary and allowances due to the third respondent for the period from 5.6.2000 to 31.1.2011, as compensation from the Manager, is vacated. The recovery proceedings, if any, will stand quashed.