Anila G. Kesavan & others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **WP(C).No.2520 OF 2020(L)** ## **PETITIONER/S:** - **1 ANILA G. KESAVAN, AGED 39 YEARS D/O. KESAVAN(LATE), MALAYIL THOPPIL, PARUMALA P O, MANNAR, PATHANAMTHITTA.** - **2 PREETHA P AGED 40 YEARS D/O. GOPALAKRISHNAN(LATE), THEKKEVILAYIL KARIKKAL, KARIMPINPUZHA P O, PUTHOOR, KOLLAM.** - **3 AKHIL CHANDRAN AGED 24 YEARS S/O. PREMACHANDRAN.S(LATE), KIDANGAYAM KANNIMEL, NORTH MYNAGAPPALLY P O, KOLLAM DISTRICT.** - **4 SYAM RAJ R AGED 32 YEARS S/O. RAJASEKHAR(LATE), PONPUZHA, MUNDANKAVU, CHENGANNUR P O, ALAPPUZHA.** - **5 SREEJITH P.R AGED 31 YEARS S/O. P.S. REGHUNATH(LATE), REGHU SADANAM, KURATTIKKADU, MANNAR P O, ALAPPUZHA.** - **6 AKASH KUMAR S AGED 2 YEARS S/O.V.V. SATHEESH KUMAR(LATE), PANAYIL VEEDU, EAST PATTOM, PATTOM P O, THIRUVANANTHAPURAM.** - **7 ASWATHI A AGED 30 YEARS D/O. N. RADHAKRISHNAN(LATE), PANACHATHARA PUTHENVEEDU, PADINJATTUMKARA P O, THEVALAKKARA, KOLLAM. BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)** **WP(C).No.2520 OF 2020(L)** **2** ## **RESPONDENT/S:** **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** - **3 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, BOARD OFFICE, NANDANCODE, THIRUVANANTHAPURAM695003.** - **4 THE SECRETARY TRAVANCORE DEVASWOM BOARD, BOARD OFFICE, NANDANCODE, THIRUVANANTHAPRUAM-695003.** **R3-4 BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** ## **OTHER PRESENT:** ## **GP SRI B HARISH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2520 OF 2020(L)** **3** ## **JUDGMENT** ## **Dated this the 4[th] day of March 2021** This is most unfortunate that the petitioners, the wards of employees, who, while working in different colleges as Lab Assistant, Lower Division Clerk, Last Grade Servant, Lecturer, Gardener etc died in harness, have not been given compassionate appointment by the Devaswom Board with effect from 1995. 2. The petitioners, 7 (seven) in numbers, immediately on the death of their fathers submitted applications for appointment of compassionate employment. Government of Kerala formulated a scheme for compassionate employment dated 24.5.1999 and clause 9 of the same stipulated that the scheme would not be applicable to the dependants of the employees of private colleges but would be applicable to the dependants of the employees of aided colleges as evidenced from the communication dated 7.10.2013, Ext.P1(a) and (b). On 17.4.2012, the 3[rd] respondent had taken a decision to give employment on compassionate grounds to the dependants of **WP(C).No.2520 OF 2020(L)** **4** the deceased employees, who died after 1995, subject to the concurrence of the Government, Ext.P2. Government of Kerala, vide order dated 5.8.2019 gave sanction to the Board for appointment of thirteen (13) persons who are having the requisite educational qualifications on compassionate grounds subject to the condition stipulated in Ext.P1 Government order. The aforementioned decision of the Government was placed before the Travancore Devaswom Board and vide order dated 16.11.2019, Ext.P7(a), translation, considered the applications submitted by the dependants of the deceased from 1995 to 2012, who died while in service in the aided colleges under the Travancore Devaswom Board and the applicants were directed to produce the certificates within ten(10) days. 3. Learned counsel appearing on behalf of the petitioners submits that few of the wards received a communication dated 16.11.2019, Ext.P8 for production of documents but no action was taken compelling the petitioners to approach this Court for the reason that during the interregnum, the management of the Board changed. 4. In the counter affidavit, the Board relied upon **WP(C).No.2520 OF 2020(L)** **5** Ext.R3(c), the decision dated 6.6.2019 by confining the maximum limit of appointment under the scheme 10 percent of the total vacancies arising in a financial year. As per the information received under RTI, annexed with the application for placing on record additional document as Ext.P9 dated 20.8.2020, the vacancies in various colleges run by the Board are 107 and the 10% would be 10. But to the utter dismay, as per the additional counter, they have volte faced that the compassionate appointment would be applicable only to the vacancies since 2012 onwards ie., the date when the decision Ext.P2 dated 7[th] of May 2012 as per the order of the Government dated 24.5.1999, was taken. Such an action of the Devaswom Board is without any rational/ basis and against the settled principle of law in the judgment of the Hon'ble Supreme Court reported in 2017 (2) KLT 453 (SC) ( _**Dr.T.P Senkumar IPS v. Union of India)**_ that the validity of the document is to be seen from the reasons and not from the date. 5. Per contra, learned counsel appearing on behalf of the respondent submitted that there are four aided colleges under the Corporate management of Travancore Devaswom **WP(C).No.2520 OF 2020(L)** **6** Board and do not dispute the fact that the Board had to offer employment on compassionate basis to the wards of the employees who died in harness but would be taken into consideration only from the date when the order of the Government dated 24.5.1999 was accepted in 2012 and not from 1995, thus, few of the petitioners would be out of the zone of consideration. Compassionate appointment is not a matter of right, but only in pursuance to the scheme applicable with the approval of the Government. No doubt, the Government had granted the approval in May 1999 but no selection process was done, the Board cannot be blamed owing to the change of the management 6. I have heard the learned counsel for the parties and appraised the paper book. The fact that the Government had accorded approval with effect from 24.5.1999 vide Ext.P5 permitting the Board to offer compassionate appointment to the wards of the employees died in harness ie., to fill up 13 vacancies against 30 vacancies. But the contradictory stand in the additional statement by confining to the applicants with effect from 2012 instead of 1995 is wholly acrimonious and **WP(C).No.2520 OF 2020(L)** **7** fallacious. For the sake of brevity, the relevant portion of translated copy of the order dated 7.5.2012, is extracted herein below: _“13 applications have been received from the dependents of the employees, in 4 aided colleges under the Travancore devaswom board, who died while on service for compassionate appointment. The applications were submitted by the dependent of the employees who died from 1995 to 2012. The teaching and non-teaching staff association of these colleges also has raised this issue for many years._ _However paragraph no 9 in the government order cited in reference 1 clarifies that the compassionate appointment clause does not apply to private colleges .Even though there is compassionate appointment for the dependents of Dewasom employees under the Travancore Devaswom board it does not include the employees of colleges under the board. It seems that none of the previous boards have favourably considered the application submitted by the dependents of these employees._ _In this circumstance the board meeting held on 17.4.2012 examined this issue in detail and decided to give compassionate appointment to the dependents of the employees of Dewasom Board Colleges who died in or after 1995 subject to the government approval.”_ On perusal of the contents, the decision of the Board confined to the appointment from 1995 to 2012 but cannot be construed from 2012 onwards by taking the date of the decision. It is not in tandem with the decision rendered cited _**Dr.T.P Senkumar IPS**_ (supra). The content/reasoning in the order is to be seen and not the date. The Board cannot without any provisions of law or rule in force, treat the documents with the prospective effect. The stand taken in the **WP(C).No.2520 OF 2020(L)** **8** additional written statement is totally contrary to the decision of the Board dated 16.11.2019, Ext.P7 where the operative part would reveal that they had considered to grant the appointment from 1995 to 2012. The relevant portion of the same reads thus: _The Board had considered the applications submitted by the dependents of the deceased persons from 1995 to 2012, who died while in service in the aided colleges under the Travancore Devaswom Board, and by vide ROC No. 9117/10 college letter dated 7.,5.2012 the Board decided to introduce compassionate appointments in the aided colleges under the Devaswom Board. Therefore the applicants named below will be appointed as last grade servants in the aided colleges under the Devaswom Board affiliated to the Kerala/M.G. Universities. Hence the applicants are directed to produce the certificates within 10 days which are specified in the Government Order._ 7. In accordance with the decision taken in Ext.P7 notice, Ext.P8 was issued to various aspirants. The relevant portion of Ext.P8 reads thus: “ _As per order in above reference it has been decided to give compassionate appointment in colleges under Travancore Devaswom board. Application for compassionate appointment is to be collected from Devaswom board office and to be submitted within 10 days along with necessary details. If appointment under compassionate scheme is not necessary the same has to be communicated to this office._ 8. In my view, the respondent Board ought not to have linked the matter in offering appointment on compassionate **WP(C).No.2520 OF 2020(L)** **9** employment to the affected families/wards of the deceased employees, as particularly when the scheme has already been approved by the Government and in force. Accordingly, I dispose of the writ petition with a direction to the respondent Board to take a call for issuance of appointment letters after examining the documents and certificates on compassionate employment of the wards with effect from 1995 to 2012 in tandem with the decision in November 1999 and issue appointment letters in case the certificates are found in order, within a period of one month from the date of receipt of a certified copy of the judgment. The writ petition stands allowed in the aforementioned terms. **Sd/-** ## **AMIT RAWAL** sab **JUDGE** **WP(C).No.2520 OF 2020(L)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GO(P) 12/99/P & ARD DATED 24.05.1999.** - **EXHIBIT P1(A) TRUE COPY OF THE GO(MS) NO.636/2013/P & ARD DATED 7.10.2013.** - **EXHIBIT P1(B) THE ENGLISH TRANSLATION OF EXHIBIT P1(A) EXHIBIT P2 TRUE COPY OF THE ORDER NO.9117/10/COLL. DATED 7.5.2012 OF THE 4TH RESPONDENT.** - **EXHIBIT P2(A) THE ENGLISH TRANSLATION OF EXHIBIT P2 EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO.D3/215/2019/HED DATED 1.7.2019 OF THE 1ST RESPONDENT** - **EXHIBIT P3(A) THE ENGLISH TRANSLATION OF EXHIBIT P3 EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.ROC NO.9018/14/COLL DATED 24.07.2019 OF THE 4TH RESPONDENT.** - **EXHIBIT P4(A) THE ENGLISH TRANSLATION OF EXHIBIT P4 EXHIBIT P5 TRUE COPY OF THE GO(MS) NO.275/2019/HED DATED 5.8.2019 OF THE 1ST RESPONDENT.** - **EXHIBIT P5(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P5 EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.D3/215/HIGHER EDUCATION DEPARTMENT DATED 16.10.2019 OF THE 1ST RESPONDENT.** - **EXHIBIT P6(A) THE ENGLISH TRANSLATION OF EXHIBIT P6** **EXHIBIT P7 TRUE COPY OF THE ORDER NO.ROC 9018/14/COLL, DATED 16.11.2019 OF THE 4TH RESPONDENT.** **EXHIBIT P7(A) THE ENGLISH TRANSLATION OF EXHIBIT P7** **WP(C).No.2520 OF 2020(L)** **11** **EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS NO. ROC NO.9018/14/COLL DATED 16.11.2019 ISSUED TO THE 6TH PETITIONER. EXHIBIT 8(A) THE ENGLISH TRANSLATION OF EXHIBIT P8. EXHIBIT P9 TRUE COPY OF THE INFORMATION DATED 20/8/2020 ISSUED TO THE 6TH PETITIONER BY THE PUBLIC INFORMATION OFFICER OF THE 3RD RRESPONDENT**