Amarnath G.K. v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 12[TH]DAY OF JANUARY 2023 / 22ND POUSHA,1944 ``` ## **`WP(C) NO. 22031 OF 2022`** ## **`PETITIONER/S:`** ``` AMARNATH.G.K AGED 27 YEARS, S/O.KARUNAN K.T, KANAV (HOUSE), CHANGARAMKULAM, KAYAKKODI P.O. KUTTIYADI VIA, KOZHIKODE-673508. BY ADVS. KALEESWARAM RAJ THULASI K. RAJ ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, MANANCHIRA, NEAR HEAD POST OFFICE, KOZHIKODE- 673 001. 4ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KUNNUMEL, MODERI P.O, KOZHIKODE-673507. 5MANAGER, A.M.U.P.SCHOOL, KAYAKKODI, KAYAKKODI P.O., KUTTIYADI VIA, KOZHIKODE-673508. 6ROSHNI P. T UPST, A.M.U.P.SCHOOL, KAYAKKODI, KAYAKKODI P.O., KUTTIYADI VIA, KOZHIKODE- 673508. ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 2 ``` ``` BY ADVS. T.T.MUHAMOOD V.A.MUHAMMED APARNA NARAYAN MENON A.RENJITH V.E.ABDUL GAFOOR A.MOHAMMED SAVAD T.R.VISHNU M.SAJJAD JOGGY MATHUNNI CHINNU MARIA ANTONY ``` ``` SMT ANIMA M GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON12.01.2023,ALONGWITHWP(C).11793/2020,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 3 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 12[TH]DAY OF JANUARY 2023 / 22ND POUSHA,1944 ``` ## **`WP(C) NO. 11793 OF 2020`** ## **`PETITIONER/S:`** ``` AMARNATH G.K. AGED 27 YEARS, S/O.KARUNAN K.T., KANAV (HOUSE), CHANGARAMKULAM, KAYAKKODI P.O., KUTTIYADI VIA, KOZHIKODE-673508. BY ADVS. KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, 695014. 3DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, MANANCHIRA, NEAR HEAD POST OFFICE, KOZHIKODE-673001. 4ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KUNNUMEL, MODERI P.O., KOZHIKODE-673507. 5MANAGER, A.M.U.P. SCHOOL, KAYAKKODI, KAYAKKODI P.O., KUTTIYADI VIA, KOZHIKODE-673508. ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 4 ``` ``` BY ADVS. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD SRI.A.MOHAMMED SAVAD SHRI.T.R.VISHNU ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON12.01.2023,ALONGWITHWP(C).22031/2022,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 5 ``` ## **JUDGMENT** The petitioner Sri. Amarnath G.K. staked a claim under Rule 51B of Chapter XIV A of the Kerala Education Rules for employment assistance as his father had died in harness. The DEO issued orders directing the Manager to appoint the petitioner herein, which was overturned by the Government by Exhibit P14 order, which is the subject matter of the challenge in W.P.(C.) No. 11793/2020. While the said writ petition was pending consideration, the Government issued Exhibit P15 order produced in W.P.(C.) No. 22031/2022 ordering the approval of appointment to certain Roshni. P.T., the 6th respondent in the said writ petition. The said order is under challenge in W.P.(C.) No. 22031/2022. 2. As common issues are involved in both these writ petitions, both are taken up and disposed of by a common judgment. The parties and exhibits shall be referred to as described in W.P.(C) No. 22031/2022. 3. Short facts are as under: a) Sri. Karunan K.T., the father of the petitioner, while working as a Teacher at the AMUP School, Kayakkodi, passed away on 07.04.2015. The petitioner states that he filed an application on 15.06.2016 before the Manager seeking an appointment under the compassionate employment scheme. In Exhibit P1 application, he had stated that he had completed ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 6 ``` his Bachelor of Arts (B.A.) and Master of Arts (M.A.) Courses in English Literature and was undergoing B.Ed. Course in English. b) When no action was taken by the Manager, the petitioner is stated to have submitted Exhibits P3, P4(a), P4(b), and P5 representations. In response, the Manager issued a letter dated 03.08.2019 intimating that the petitioner was not entitled to the benefit of employment assistance under Rule 51B Chapter XIVA of the KER as he had not filed the application within two years of the death of his father. c) The petitioner states that this matter was taken up before the AEO concerned, who issued directions on 28.06.2019 directing the Manager to appoint the petitioner. d) Challenging the orders issued by the AEO concerned, the Manager preferred a Revision Petition before the Government. Pursuant to the orders issued by this Court, the 1st respondent issued order dated 07.05.2020 rejecting the claim of the petitioner. The said order has been produced as Ext.P14 in W.P.(C) No.11793/2020. In the said writ petition, the petitioner has sought a declaration that he is entitled to get appointment as UPST with effect from 6.6.2019 in the HTV vacancy or at least in the retirement vacancy and other incidental reliefs. ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 7 ``` e) The petitioner asserts that, in the meantime, the Manager appointed Smt. Roshni P.T., and based on her request, the Government has come up with an order dated 07.05.2020 granting approval to the appointment of the said teacher subject to the decision to be taken in the writ petition filed by the petitioner. The said order is produced as Ext.P15 in W.P.(C) No.22031/2022. The above writ petition is filed seeking a declaration that the claim for appointment of the petitioner as a Rule 51B claimant cannot be curtailed by Ext.P15 order issued by the 1st respondent and also for a declaration that the 6th respondent therein is not entitled to approval on any of the grounds stated in Ext.P15. 4. A counter affidavit has been filed by the 5th respondent in W.P.(C) No.22031/2022. It is stated therein that the petitioner has not submitted any application on 15.06.2016, as contended. The petitioner had forwarded an application for the first time only on 3.4.2019, and the same was received by the Manager on 5.4.2019. As the application was not in a proper format, without any supporting documents, and as it was submitted after the expiry of the time limit fixed, the same was rejected by the Manager. It is further stated that the assertion in the writ petition that the petitioner had submitted Ext.P3 request on 23.8.2018 was also incorrect. It is stated that the petitioner had acquired the B.Ed. Degree ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 8 ``` qualification on June 2018 and K-TET qualification on 29.8.2019, much after the expiry of two years from the date of death of his father. The family members of the petitioner are well off, and they are not facing any immediate contingency on account of their father. The claim made by the petitioner has no proximity with the death of the employee who had died in harness. It is stated that Smt. Roshni was appointed as UPST on 16.7.2021, and she had worked in the school on daily wages prior to the appointment. 5. In the counter affidavit filed by the 6th respondent, it is stated that Ext.P2 cannot be relied upon for any purpose. It is asserted that Exts.P1 and P2 have been cooked up for the purpose of this case. The application for employment assistance was made belatedly without any supporting documents. 6. Smt. Thulasi K. Raj, the learned counsel appearing for the petitioner, would point out that the order issued by the Government cannot be sustained under law. According to the learned counsel, the application filed by the petitioner was well within time, and reliance is also placed on an affidavit filed by one Rajendran to substantiate the same. According to the learned counsel, a learned Single Judge of this Court in **Baiju Kumar v. DEO Trivandrum** [2003 (3) KLT 240] has held that when a teacher of ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 9 ``` a school dies, it has to be presumed that the Manager is aware as to who the dependants are and whether any of them is eligible to appointments. The application could not have been rejected on the ground that it was not in proper form. Insofar as Ext. P15 order passed in W.P.(C) 22031 of 2022 is concerned, the learned counsel would contend that the same was passed in clear violation of the principles of natural justice. The fact that the petitioner had approached this Court and had preferred W.P.(C) No.11793/2020 was known to the 1st respondent. It is submitted that the order was issued with the intention to deprive the petitioner of the benefits to which he is entitled to. Finally, it is submitted that the very same Government has issued Ext.P16 order granting employment assistance by relaxing the rules, and there is no reason why the same benefit is not extended to the petitioner. 7. Sri. M. Sajjad, the learned counsel appearing for the party respondent, would reiterate the contentions in his counter. He would highlight the discrepancies in Exhibits P3, P4(a), and P4(b), and it is pointed out that the documents are cooked up to make it appear that the application was filed well within time. The learned counsel would then rely on the law laid down by the Apex Court in **Shreejith L. v. Deputy Director (Education) Kerala and others** [2007 (12) SCC 248], and it is ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 10 ``` argued that the order issued by the Government is in order and no interference is warranted. In response to Exhibit P16, the learned counsel would point out that the order has been stayed by this Court in W.P.(C.) No. 15558/2021. The learned counsel would finally urge that a learned Single Judge of this Court in W.P.(C.) No. 3237/2012 had occasion to hold that the qualifications acquired by the applicant as on the last date prescribed for filing of the application alone can be reckoned for the grant of appointment and this judgment has been upheld by their lordships of the Division Bench in W.A. No. 111/2017. 8. I have considered the submissions advanced and perused the records. 9. Admittedly, the father of the petitioner had expired on 7.4.2015. The Government of Kerala has issued G.O. (P) No. 12/99/P&ARD dated 24.5.1999, which is a revised order governing compassionate employment to the dependents of Government servants who die in harness. Among other eligibility conditions, the modified order prescribes a time limit for preferring applications vide 19 of the above Government Order. The same reads as follows: 19. The time limit for preferring applications under the scheme will be 2 years from the date of death of Govt. servants. In the case of minor, the period will be within 3 years after attaining majority. ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 11 ``` 10. In **Manager, Parli High School v. Narayanan** [2002 (3) KLT 912], this Court has held that the requirement of a time limit has to be read into the Rules, as it stood prior to the date of Government Order. 11. In **Parli** (supra), it was observed that the object of compassionate appointment is to tide over the sudden financial crisis resulting due to the death of the bread-earner. It is not as if, on the death of an employee, the claim of the dependant is kept open forever. Once a dependant is not always a dependant. There cannot be reservation of vacancy till such time the applicant becomes major or till such time the applicant acquires qualification. It was indicated that the provisions like Rule 51B and other Government orders pertaining to compassionate appointments are all made on humanitarian considerations. It is always in the nature of an exception to the general provision. An exception cannot always occupy the place of the main provision and thereby nullify or dilute the efficacy of the main provision by denuding the right conferred by the main provision to persons otherwise eligible. 12. In **Shreejith L v. Deputy Director (Education) Kerala and Others** [2012 (7) SCC 248], while considering an identical issue, the Hon’ble Supreme Court had occasion to observe as follows in paragraphs 18 and 19:- ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 12 ``` “18. The High Court appears to have confused an application required to be filed within the period stipulated for the purpose with the availability of a vacancy against which such an application could be considered by the Manager. These were two distinctly different matters. What was important was the making of an application for appointment on compassionate basis within the period stipulated for the purpose. Whether or not a vacancy is available had nothing to do with the making of the application itself. 19. An application could and indeed ought to have been made by Respondent 1 within the time stipulated, regardless of whether there was a vacancy already available or likely to become available in the near or distant future. Respondent 1, having failed to do that, could not claim a compassionate appointment, especially when there was nothing on record to suggest that the family was in penury, notwithstanding the lapse of a considerable period since the demise of the breadwinner; during which period Respondent 1 had got married and settled down in life and supports a family. The High Court was in that view clearly in error in issuing a mandamus to the Manager to appoint the respondent on compassionate basis which order calls for interference and is hereby reversed.” 13. The Apex Court, while elaborating on the scope and ambit of Rule 51B of the KER, observed that a plain reading of the provision would show that the statutory rules are further regulated in terms of the Government Orders issued on this subject. Referring to the Government ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 13 ``` Order dated 24.05.1999, the Apex Court observed that the time limit for preferring the applications under the scheme will be two years from the date of death of a Government servant. 14. Going by the law laid down by this Court in **Parli** (supra) and the Government Orders, the petitioner ought to have filed the application for employment assistance on or before 6.4.2017. Though the petitioner asserts that he had put in Ext.P1 on 15.6.2016, there are no materials to substantiate the said fact. He has not sent the request by registered post, and he has also not alerted the educational authorities. Admittedly, the petitioner acquired his B.Ed qualification only in June 2018, and he acquired K-TET only on 29.8.2019. The only acceptable material before this Court to substantiate that an application was filed by the petitioner seeking employment assistance is Ext.P7, wherein the date of the application submitted by the petitioner is shown as 06.06.2019. This application is also much beyond the time. No reliance can be placed on Ext.P2, an affidavit signed by a colleague of the father of the petitioner, as it can be accepted only if proven in accordance with law. Furthermore, the deponent is not even made a party to the proceeding. As rightly submitted by the learned counsel appearing for the respondents, Ext.P3 dated 23.8.2017 cannot be relied upon as the petitioner has stated therein ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 14 ``` that he has completed his B.Ed. by that time, which clearly is erroneous as admittedly he had completed his B.Ed only during June 2018. I conclude that there are no records to substantiate that the petitioner had filed the application for employment assistance within a period of two years from the date of the death of his father. The entire aspect of the matter was considered by the educational authorities while rejecting the request made by the petitioner and in rejecting his request for compassionate assistance. Insofar as Ext.P16 order produced in W.P.(C) No.22031/2022 is concerned, as I have already held that the rejection of the request made by the petitioner is in order, I am of the view that the petitioner has not made out any ground for interfering with the same. These writ petitions will stand dismissed. There will be no order as to costs. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 15 ``` ## **`APPENDIX OF WP(C) 11793/2020`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE APPLICATION DATED 15.6.2016 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXHIBIT P2TRUE COPY OF THE AFFIDAVIT DATED 5.2.2020 SIGNED BY SRI.RAJENDRAN. EXHIBIT P3TRUE COPY OF THE REQUEST DATED 23.8.2017 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXHIBIT P4(A)TRUE COPY OF THE REQUEST DATED 03.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P4(B)TRUE COPY OF THE REQUEST DATED 3.4.2019 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXHIBIT P5TRUE COPY OF THE REPRESENTATION DATED 19.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P6TRUE COPY OF THE LETTER DATED 6.6.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P7TRUE COPY OF THE LETTER NO.2482/19/B/K.DIS DATED 28.6.2019 PASSED BY THE 4TH RESPONDENT. EXHIBIT P8TRUE COPY OF THE LETTER DATED 31.12.2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P9TRUE COPY OF THE LETTER DATED 20.8.2019 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P10TRUE COPY OF THE REPRESENTATION DATED 05.02.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P11TRUE COPY OF THE REVISION PETITION DATED ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 16 ``` ``` 20.8.2019 FILED BY THE 5TH RESPONDENT. ``` ``` EXHIBIT P12TRUE COPY OF THE JUDGMENT DATED 17.1.2020 IN W.P.(C) NO.1325/2020. ``` ``` EXHIBIT P13TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. ``` ``` EXHIBIT P14TRUE COPY OF G.O.(RT) NO.1542/2020/G.EDN. DATED 07.05.2020. ``` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 17 ``` ## **`APPENDIX OF WP(C) 22031/2022`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1 TRUE COPY OF THE APPLICATION DATED 15.06.2016 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.` - `Exhibit P2 TRUE COPY OF THE AFFIDAVIT DATED 05.02.2020 SIGNED BY SRI.RAJENDRAN.` - `Exhibit P3 TRUE COPY OF THE REQUEST DATED 23.08.2017 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.` - `Exhibit P4 a TRUE COPY OF THE REQUEST DATED 03.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.` - `Exhibit P4 b TRUE COPY OF THE REQUEST DATED 03.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 19.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE LETTER DATED 06.06.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.` - `Exhibit P7 TRUE COPY OF THE LETTER NO.2482/19/B/K.DIS DATED 28/06/2019 PASSED BY THE 4TH RESPONDENT.` - `Exhibit P8 TRUE COPY OF THE LETTER DATED 31.12.2019 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P9 TRUE COPY OF THE LETTER DATED 20.08.2019 ISSUE BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT.` - `Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 05.02.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.` ``` WP(C) NOs. 22031/2022 & 11793/2020 ``` ``` 18 ``` ``` Exhibit P11TRUE COPY OF THE REVISION PETITION FILED BY THE 5TH RESPONDENT . ``` ``` Exhibit P12TRUE COPY OF THE JUDGMENT DATED 17.01.2020 IN W.P(C) NO.1325/2020. ``` ``` Exhibit P13TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. ``` ``` Exhibit P14TRUE COPY OF G.O(RT)NO.1542/2020/G.EDN DATED 07.05.2020. ``` ``` Exhibit P15TRUE COPY OF G.O DATED 15.06.2022. Exhibit P16TRUE COPY OF G.O(P) NO. 56/2022/GEDN DATED 07.04.2022. ```