Bijeesh K. v. Deputy Director of Education, Kozhikode & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **WP(C).No. 10880 of 2014 (H) ----------------------------** ## **PETITIONER: ----------** **BIJEESH.K,** **KODANGOTTUCHALIL ,NADERI PO, (VIA) KOYILANDY, PIN 673 620.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.AMMU PILLAI** ## **RESPONDENT(S):** - **--------------** **1. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE ,PIN 673 001.** **2. DISTRICT EDUCATIONAL OFFICER, VADAKARA,PIN 673 101.** **3. THE ASSISTANT EDUCATIONAL OFFICER, MELADY, MELADY PO, KOZHIKODE DISTRICT,PIN 673 522.** **4. MANAGER,** - **U.P.SCHOOL NADUVATHUR, KEEZHARIYUR, KOZHIKODE DISTRICT,PIN 673 324.** - **ADDL R5 IMPLEADED** **5. E.M.ANEESH** - **OFFICE ATTENDANT, U.P.SCHOOL, NADUVATHOOR, KEEZHARIYOOR, KOZHIKODE DISTRICT, PIN - 673 324.** - **ADDL R5 IMPLEADED AS PER ORDER DATED 28.11.2014 IN IA 16140/2014.** **R1-R3 BY SENIOR GOVERNMENT PLEADER SRI BIJOY CHANDRAN R4 BY ADV. SRI.P.C.SASIDHARAN R5 BY ADVS. SRI.V.RAJENDRAN** **SRI.T.B.HOOD** **SMT.M.ISHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2017, THE COURT ON 30-01-2017 DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 10880 of 2014 (H)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 COPY OF THE APPLICATION DATED 20/5/1997 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.** **EXHIBIT P2 COPY OF THE CERTIFICATE OF POSTING OF THE PETITIONER** **EXHIBIT P3 COPY OF THE APPLICATION DATED 3/5/2000 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT** **EXHIBIT P4 COPY OF THE CERTIFICATE OF POSTING** **EXHIBIT P5 COPY OF THE APPLICATION DATED 8/11/2011 THE PETITIONER SUBMITTED TO THE MANAGER`** **EXHIBIT P6 COPY OF THE LETTER NO.D/5948/2011 DATED 16/1/2012 ADDRESSED TO THE MANAGER** **EXHIBIT P7 COPY OF THE APPLICATION DATED 21/6/2013 SUBMITTED BY THE PETITIONER TO THE MANAGER.** **EXHIBIT P8 COPY OF THE APPLICATION DATED 1/11/2013 SUBMITTED BY THE PETITIONER TO THE MANAGER** **EXHIBIT P9 COPY OF THE REQUEST DATED 23/11/2013 SUBMITTED BY THE PETITIONER TO THE MANAGER.** **EXHIBIT P10 COPY OF THE REPRESENTATION DATED 23/11/2013 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT** **EXHIBIT P11 COPY F THE LETTER NO.B5-8636/13/K.DIS DATED 16/12/2013 OF THE 2ND RESPONDENT ADDRESSED TO THE 4TH RESPONDENT.** **EXHIBIT P12 COPY OF THE LETTER DATED 30/12/2013 OF THE PETITIONER TO THE 4TH RESPONDENT** **EXHIBIT P13 COPY OF THE PETITION DATED 4/2/2014 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **R5(A) COPY OF THE LETTER DATED 14/11/2014 OF THE SENIOR SUPERINTENDENT OF POST OFFICES, CALICUT DIVISION TO THE 5TH RESPONDENT.** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.10880 of 2014** **= = = = = = = = = = = = = = = Dated this the 30[th] day of January, 2017** ## **JUDGMENT** 1.This writ petition is filed seeking directions to the 4[th] respondent Manager to appoint the petitioner as Office Attendant in the vacancy which arose on 01.12.2013. Further directions are sought commanding the 1[st] respondent to initiate action against the 4[th] respondent under the provisions of Rule 7 of Chapter III KER. Petitioner is the son of late Kunhiraman Adiyodi, who died in harness on 20.08.1991, while working in the 4[th] respondent's school as Peon. The petitioner attained the age of 18 years on 25.05.1997 and claims that as per Exhibit P1 he had made request for appointment as Peon in the school. He claims that Exhibit P2 certificate of posting establishes the date of despatch of Exhibit P2. Later, by Exhibit P3 dated 03.05.2000, request was again made to the Manager and Exhibit P4 is the certificate of its posting. The documents would show that Exhibit P1 and P2 were addressed to the Manager with copies to the AEO. W.P.(C).No10880/14 2 2.Later, by Exhibit P5 dated 08.11.2011, the petitioner again made a request to the Manager with copy to the AEO and Exhibit P6 order was passed by the AEO on 16.01.2012 requiring the Manager to appoint the petitioner in the next arising vacancy of Peon. Thereafter, by Exhibits P7, P8 and P10 the petitioner again approached the Manager and the department seeking appointment against the vacancy which was to arise in 2013. By Exhibit P11 dated 16.12.2013 the DEO directed the Manager to consider the petitioner for the post which is to arise in the school. However, in the vacancy which arose on 01.12.2013, the Manager appointed a fresh hand and the petitioner was constrained to file Exhibit P13 representation before the 1[st] respondent. Since no action was taken on the same, he has preferred the present writ petition. The person appointed to the vacancy of Office Attendant which arose on 01.12.2013 got himself impleaded as additional 5[th] respondent and he has filed a counter affidavit also. Pleadings are placed on record by the 2[nd] respondent and the Manager as well. W.P.(C).No10880/14 3 3.Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the official respondents, the learned counsel for the 4[th] respondent Manager, as well as the learned counsel appearing for the impleaded additional 5[th] respondent. 4.The petitioner contends that he had made Exhibits P1 and P3 requests before the Manager with copy to the AEO and relies on Exhibit P2 and P4 certificates to show that such requests had been despatched from the post office. It is submitted that later also, several requests were made before the Manager as well as the concerned educational authorities. Exhibits P6 and P11 were issued by the AEO and DEO respectively directing the 4[th] respondent Manager to consider the claim of the petitioner for appointment. However, that was not done and the additional 5[th] respondent was appointed. An interim direction was issued by this Court on 30.06.2014 interdicting appointment of any person other than the petitioner as Office Attendant and this order has remained in force. It is contended that the claim for compassionate appointment under Rule 9A W.P.(C).No10880/14 4 of Chapter XXIVA KER, being a statutory claim, the 4[th] respondent's action in having appointed a fresh hand, without considering such claim, was illegal and unsustainable. It is therefore contended that the petitioner is the rightful claimant to the post of Office Attendant which arose in the school w.e.f. 01.12.2013 and that the appointment of additional 5[th] respondent against the said vacancy was bad in law. 5.The learned counsel for the petitioner places reliance on the decision of this Court in **K.V.Sanskrit H.S.School v. DEO** [2010 (2) KLT 353] in support of the contention that a dependant of an aided school employee who dies-in-harness can make application for appointment under the compassionate appointment scheme within a period of three years of attaining majority. It is contended that Exhibit P1 request having been made on 20.05.1997 and Exhibit P3 also being within the time limit of three years from attaining majority, the request for compassionate appointment has been made within the time prescribed by the Government Orders on the subject. It is therefore urged that the statutory claim of the W.P.(C).No10880/14 5 petitioner could not be defeated by the high handed act of the 4[th] respondent in appointing a fresh hand and ignoring the lawful directions contained in Exhibits P6 and P11. 6.The learned counsel appearing for the 4[th] respondent Manager would vehemently contend that Exhibits P1 and P3 documents are self serving and fraudulent documents created by the petitioner in collusion with his relative who was an employee of the postal department to make it appear that a claim had been raised in time. It is stated that no such letters had been sent to the Manager at any time and that the first request for employment had been raised by the petitioner after twenty years of his father's demise. It is stated that the petitioner's mother had Government employment and that his sister was also employed as a teacher. It is stated that the petitioner had been gainfully employed and the family had no need for the employment under the compassionate appointment scheme. No application in a proper format showing the financial situation of the family had ever been made and the reliance placed on Exhibits P6 and P11 was misguided since there was W.P.(C).No10880/14 6 no application validly before the Manager to consider. The learned counsel for the Manager places reliance on decision of a single Judge of this Court in **Saraswathy Nair v. Union of India** [2001 (3) KLT 116] to contend that the purpose of providing employment assistance is to mitigate the immediate hardship of the family and employment cannot be offered to one after another of the legal heirs in succession. It is stated that the other dependents who were eligible at the time of death of the petitioner's father had not raised any claim and the belated claim raised by the petitioner cannot be considered. - 7.The learned counsel appearing for the additional 5[th] respondent would submit that he had been appointed in accordance with law to the vacancy of Office Attendant which occured on 01.12.2013. It is stated that the petitioner had made no request for compassionate appointment in time and that the belated request made after twenty years of the death of his father could not have been considered by the Manager. Relying on a decision reported in **Sreejith v. Deputy** W.P.(C).No10880/14 7 **Director (Education) Kerala** [2012 (3) KLT 214 (SC)] it is urged that the application has to be positively made within the time prescribed as provided in the scheme for compassionate appointment of dependents of Government servants who diedin-harness. Since the very existence of Exhibits P1 and P3 applications are in dispute, it is contended that, there is no obligation on the Manager to consider the claim raided by the petitioner. Reliance was also placed on the decision reported in **Sukumaran Nair v. State of Kerala** [2005(1) KLT 430] to contend that appointment under the dying-in-harness scheme cannot be made long after the death of the employee. - 8.The learned Government Pleader would submit that it is evident from pleadings that a request has been received by the AEO from the petitioner for directions to the Manager for consideration of application for compassionate appointment. The AEO had issued Exhibit P6 directions to the Manager to comply with the statutory requirement of Rule 9A of Chapter XXIVA. Since the said claim of the petitioner is a statutory one, the Manager is duty bound to consider such preferential W.P.(C).No10880/14 8 claim before the post which arose on 01.12.2013 could be filled up. It is therefore contended that the action of the Manager in appointing the additional 5[th] respondent in the said vacancy could not be countenanced and therefore approval had not been granted for such appointment. 9.I have considered the contentions advanced on all sides. It is an admitted fact that the petitioner was a claimant under Rule 9A of Chapter XXIVA of KER. However, the claim put forth by him that he had preferred an application for appointment within the time prescribed by the Government Orders on the subject is vehemently disputed by the Manager. The very existence of Exhibits P2 and P4 is under dispute. Though the petitioner claims that Exhibit P1 and P3 representations had been preferred with copies to the educational authorities as well, no such receipt of representations is admitted by any of the parties to this writ petition. - 10.Going by the provisions of Rule 9A of Chapter XXIVA the petitioner could have claimed for appointment if he is eligible W.P.(C).No10880/14 9 in terms of Government Orders applicable to compassionate appointment to Government employees. It is clear that the educational authorities had, by the Exhibits P6 and P11 directed the Manager to consider the claim raised by the petitioner. Rule 9A, Chapter XXIVA, KER reads as follows:- 9A- The manager shall give employment to a dependent of the non-teaching staff of an aided school dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointments.” It is clear by the provisions of the Rule that the entitlement of the petitioner is for consideration of his claim in terms of the Government Orders. However, even though the claim is a statutory one, it is clear from a reading of the rule that the claim will have to be considered by the Manager in terms of the conditions contained in the Government Orders applicable in the subject. In the above view of the matter, I am of the opinion that the manager is duty bound to consider the claim raised by the petitioner in accordance with law. W.P.(C).No10880/14 10 11.In the result, it is directed that if the petitioner makes a proper application in the prescribed format, as provided in Government Order dated 24.05.1999, the 4[th] respondent shall take up and consider and pass reasoned orders on the claim raised by the petitioner within a period of one month from the date of receipt of a copy of this judgment. The application preferred by the petitioner shall not be rejected on the ground that it is belated. The appointment and approval of the additional 5[th] respondent shall be subject to the orders to be so passed. Directions contained in Exhibits P6 and P11 orders shall not be enforced until orders are rendered as directed above. The application shall be considered by the Manager as if it were one preferred within time. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj