DEEPTHY SUSAN JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner's father died on 6. 8. 1993. A vacancy of hsa arose and the petitioner claimed appointment under the dying-in-harness scheme, which was recognised under R. 51b of Chapter xiv-A KER. He filed O. P. No. 13203/1994 which resulted in Ext. P3 judgment. This court allowed the above Original Petition and a direction was given to the fourth respondent-Manager to consider Ext. P1 and to pass appropriate orders within a period of two months from the date of receipt of a copy of the judgment. THE fourth respondent was further directed not to make any further appointments defeating the claim of the petitioner, if any. THE matter was taken in appeal and the Division Bench by Ext. P-4 judgment only modified the time granted for passing orders as one month from the date of receipt of a copy of the judgment of the Writ Appeal. THEreafter, Ext. P-6 was passed by the fourth respondent. In the above order, the petitioner was informed that there are several claimants for appointment under R r. 43 and 51a of Chapter XIV-A KER. THErefore, the petitioner was informed that the fourth respondent was not in a position to give him employment.

(2.) THE fourth respondent has filed a counter affidavit. In Paragraph 11 of the counter affidavit, it has been stated that there are persons who were appointed before 1993 and who were entitled to preference under R. 51a of Chapter XIV KER on account of their termination of earlier service. THEre are also persons who are working as U. P. S. A. and they are entitled to be promoted under R. 43 of Chapter XIV-A KER. THErefore, I am of the view that when conflicting claimants are there under Rr. 43,51a and 51b, the R. 51b claimants must wait till all the persons who have already acquired a vested right for appointment under Rr. 43 and 51a are appointed to the vacancies. Only after exhausting the claims of those persons covered by Rr. 43 and 51 A, the claimants under R. 51b are entitled to get appointment. Otherwise it will be an injustice to the persons who had already worked and were thrown out for want of vacancies. THEre are persons who are already working in the feeder categories and are entitled to get promotion under R. 43 even in preference to the claimants under R. 51 -A (as held by this court in a number of decisions ). THEir rights will be defeated by a new claimant under r. 51b whose near relation died and thereby accrued a right for appointment. I do not think it is possible to take a view in favour of R. 51b claimants in such cases because it will defeat the vested rights of persons who came under Rr,43 and 51 A.