Akhil K. Vimal v. The Manager, St. Joseph’s College, Moolamattom, Arakkulam P.O., Idukki District and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 10[TH]DAY OF MARCH 2022 / 19TH PHALGUNA,1943 ``` ``` WP(C) NO. 38209 OF 2018 ``` ## **`PETITIONER/S:`** ``` AKHIL K. VIMAL, AGED 21 YEARS S/O VIMAL KUMAR P.K., KARIMTHURATHEL, ARAKKAULAM P.O., IDUKKI DISTRICT. BY ADVS. M.SASINDRAN SRI.V.VENUGOPAL ``` ## **`RESPONDENT/S:`** ``` 1THE MANAGER, ST. JOSEPHS COLLEGE, MOOLAMATTO,, ARAKKULAM P.O, IDUKKI DISTRICT - 685591. 2THE DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM - 695 033. 3THEDEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOTTAYAM - 686 001. 4STATE OF KERALA REPRESENTED BY SECRETARY, PERSONAL AND ADMINISTRATION REFORM DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 5THE PRINCIPAL SECRETARY TO THE GOVERNMENT DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE ``` ``` WP(C) NO. 38209 OF 2018 ``` ``` 2 ``` ``` PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY KURUVILLA SABU CHRISTY THOMAS J.ANAKKALLUNKAL ``` ``` SRI JOSHY THANIKKAMATTOM GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON10.03.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 38209 OF 2018 ``` ``` 3 ``` ## **JUDGMENT** Being aggrieved by the denial on the part of the respondents in granting an appointment under the Compassionate Employment Scheme to the petitioner, he has approached this Court with this writ petition. 2. Late. Sri. Vimal Kumar, father of the petitioner, while working as Attender in the St. Joseph’s College, Moolamattom, expired on 27.01.2007. This fact is evident from Exhibit P1 Death Certificate. Sri. Vimal Kumar was survived by his wife and the petitioner, who was a minor, aged about 11 years then. After the death of her husband, the mother of the petitioner obtained employment as a part-time sweeper through the Employment Exchange. Exhibit P5 application was however filed by his mother on 30.09.2007 seeking Compassionate Employment. The respondents refused to consider her request as his mother had secured Government employment by then and as there was no scheme for Compassionate Appointment in Private Aided Colleges. 3. While so, Exhibit P6 order dated 07.10.2013 was issued by the Government as per which, Compassionate Employment Scheme was made applicable to the teaching and non-teaching staff of the dependents of ``` WP(C) NO. 38209 OF 2018 ``` ``` 4 ``` employees dying in harness in Private Aided Colleges. Permission was also granted to the Director to prepare a Draft Scheme for Compassionate Appointment. In the meantime, the petitioner passed his SSLC and thereafter, pursued the Plus Two Course and completed the same in the year 2014 as is evident from Exhibits P3 and P4. After attaining the majority, the petitioner submitted an application for Compassionate Appointment in the post of Last Grade Servants before the 3rd respondent. The petitioner asserts that though the application was filed on 19.11.2015, no action was taken by the 1st respondent. In the said circumstances, the petitioner approached this Court and pursuant to directions issued, the 1st respondent considered the request and rejected the same by Exhibit P11 order on the ground that 11 years have elapsed after the death of his father and also on the ground that his mother has secured Government Employment elsewhere. The petitioner contends that the order of rejection cannot be sustained under law. It is in the above backdrop that the petitioner is before this Court seeking to quash Exhibit P11 and for a direction to the 1st respondent to appoint the petitioner in one of the vacancies of Office Attendant or any other suitable post as notified in Exhibit P9 and for incidental reliefs. ``` WP(C) NO. 38209 OF 2018 ``` ``` 5 ``` 4. In the counter affidavit filed by the 1st respondent it is stated that when the mother of the petitioner filed an application for appointment under the Compassionate Employment Scheme, she had stated that she has got a Permanent Appointment as a Sweeper in the Health Services Department. It is further stated that Exhibit P6 order dated 7.10.2013 is not intended to create a legal right for anyone to claim an appointment under the scheme. As per Exhibit P6, a direction has been granted to the 2nd respondent to prepare and submit the Draft Scheme before the Government. Exhibit P6 was later followed up by Exhibit R1(a) Government Order vide G.O(P)No.10/2020/H.Edn dated 17.2.2020, by which the Compassionate Employment Scheme was made applicable to Private Aided Colleges. As per Exhibit R1(a), the Scheme has been made applicable only in respect of dependents of the deceased employee of Private Aided Colleges, who have died while in service on or after 07.10.2013. As the father of the petitioner had passed away on 27.01.2007, the petitioner would not come within the purview of the Compassionate Employment Scheme. 5. I have heard Sri. M. Sasindran, the learned counsel appearing for the petitioner and Sri Peter Jose Christo, the learned Counsel who ``` WP(C) NO. 38209 OF 2018 ``` ``` 6 ``` represented the 1st respondent and the learned Government Pleader. 6. I have considered the submission advanced. ## 7. The claim raised by the petitioner has to be decided against him in view of the law laid down by the Hon’ble Supreme Court in **State of M.P. v. Ashish Awasthi [(2022) 2 SCC 157]** . 8. In this case, the undisputed fact is that the father of the petitioner had passed away on 27.1.2007. On going through Exhibit R1(a), it is apparent that the Government has accorded sanction to implement the Compassionate Appointment Scheme for the dependents of deceased employees of Private Aided Colleges/Private Aided Training Colleges/Private Aided Arabic Colleges/Private Aided Polytechnic Colleges/Private Aided Engineering Colleges only on 17.2.2020. It would be apposite to extract the relevant portion for convenience. ## “Date of effect. 2. The dependants of the deceased employees of the Private Aided Colleges/Private Aided Training Colleges/Private Aided Arabic Colleges/Private Aided Polytechnic Colleges/Private Aided Engineering Colleges who have died while in service, on or after 7.10.2013 i.e. the date of the order implementing the Compassionate Employment Scheme in Aided Colleges, shall be covered by this Scheme.” Thus there cannot be any iota of doubt that the provisions of the Scheme ``` WP(C) NO. 38209 OF 2018 ``` ``` 7 ``` became applicable only to employees who have died while in service on or after 7.10.2013. 9. In **Ashish Awasthi** (supra), the Apex Court in identical circumstances had held that for appointment on Compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy. It was held as follows in para 5 and 6 of the judgment “5. As per the settled proposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy. 6. In Indian Bank v. Promila, it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on the date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in State of M.P. v. Amit Shrivas. It is required to be noted that in Amit. Shrivas the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside.” 10. Admittedly there was no Scheme prevalent on the date of death of the father of the petitioner and the operation of the Scheme came into force much later. In that view of the matter, the petitioner cannot claim any ``` WP(C) NO. 38209 OF 2018 ``` ``` 8 ``` entitlement for appointment under the Compassionate Employment Scheme. This writ petition will stand dismissed. No costs. ## **Sd/-** # **RAJA VIJAYARAGHAVAN V JUDGE** avs ``` WP(C) NO. 38209 OF 2018 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 38209/2018`** ## **`PETITIONER EXHIBITS`** |`EXHIBIT P1`|`A TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY`| |---|---| ||`THE REGISTRAR OF BIRTHS AND DEATHS, ARAKKULAM`| ||`GRAMA PANCHAYATH.`| |`EXHIBIT P2`|`A TRUE COPY OF THE SURVIVING CERTIFICATE`| ||`ISSUED BY THE TAHSILDAR, THODUPUZHA.`| |`EXHIBIT P3`|`A TRUE COPY OF THE MARK LIST ISSUED TO THE`| ||`PETITIONER FOR THE S.S.L.C.`| |`EXHIBIT P4`|`A TRUE COPY OF THE MARK LIST ISSUED TO THE`| ||`PETITIONER FOR THE PLUS TWO COURSE.`| |`EXHIBIT P5`|`A TRUE COPY OF THE APPLICATION DATED 30/9/2007`| ||`SUBMITTED BY THE PETITIONER'S MOTHER.`| |`EXHIBIT P6`|`A TRUE COPY OF THE G.O.(MS) NO.636/2013 DATED`| ||`7/10/2013.`| |`EXHIBIT P7`|`A TRUE COPY OF THE COMMUNICATION DATED`| ||`5/12/2015 ISSUED BY THE DEPUTY DIRECTOR OF`| ||`COLLEGIATE EDUCATION, THE 3RD RESPONDENT.`| |`EXHIBIT P8`|`A TRUE COPY OF THE APPLICATION SUBMITTED BY`| ||`THE PETITIONER BEFORE THE 1ST RESPONDENT.`| |`EXHIBIT P9`|`TRUE COPY OF THE NOTIFICATION PUBLISHING THE`| ||`MATHRUBHUMI DAILY DATED 8/2/2017.`| |`EXHIBIT P9`|`A TRUE COPY OF THE APPLICATION SUBMITTED BY`| ||`THE PETITIONER FOR THE POST OF NON TEACHING`| ||`STAFF.`| |`EXHIBIT P10`|`A TRUE COPY OF THE JUDGMENT IN W.P.(C)`| ||`NO.13869 OF 2017 DATED 12/4/2017.`| ``` WP(C) NO. 38209 OF 2018 ``` ``` 10 ``` ``` EXHIBIT P11A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 10/12/2017. EXHIBIT P12A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 21/2/2018. Exhibit P13TRUE COPY OF THE APPLICATION INVITED BY THE 1ST RESPONDENT PUBLISHED IN THE MALAYALA MANORAMA NEWS DAILY DATED 06/10/2021. ```