Dincy Davis v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938** ## **WP(C).No. 3237 of 2012 (D)** ## **---------------------------** ## **PETITIONER :** - **---------------------** **DINCY DAVIS, D/O.LATE P.I.ROSY, AGED 22 YEARS, VALLOOKKARAN HOUSE, P.O.PULLAZHI, OLARIKKARA, THRISSUR DISTRICT.** ## **BY ADV. SRI.V.A. MUHAMMED** **RESPONDENT(S):** - **-----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT-680 003.** **3. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR DISTRICT-680 001.** **4. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE OF THRISSUR, THRISSUR-670 005.** ## ***ADDL.R5 & R6 IMPLEADED** - ***Addl. R5. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - ***Addl. R6. SMT.K.A.SINY,** - **U.P.S.A. ST.IGNATIOUS U.P SCHOOL,** - **MANALUR, THRISSUR DISTRICT - 680 017.** - ***ADDL.R5 & R6 ARE IMPLEADED AS PER ORDER DATED 5/6/2014 IN IA.NO.5501/2014.** **2/-** **-2-** ## **WP(C).NO.3237/2012** ## ****ADDL.R7 TO R14 ARE IMPLEADED** - ****Addl. R7. JULIE THOTTAN,** **D/O.SRI.VARGHESE THOTTAN,AGED 42 YEARS, ELUVATHINGAL HOUSE, CHRIST NAGAR, CHEVOOR P.O., THRISSUR - 680 027.** ****Addl. R8. PRINCY JOHN.T., D/O.SRI.T.R.RAJAN,AGED 41 YEARS, THAIKKATTIL HOUSE, ELAVALLY P.O (NORTH), CHITTATTUKARA, THRISSUR - 680 511.** - ****Addl. R9. GRACE MARY S ALAPPAT,** - **D/O SRI.SHELBI ALAPPATT, AGED 31 YEARS, THARAKAN HOUSE, P.O VELLARAKKAD, THRISSUR - 680 584.** - ****Addl. R10. DHANYA MATHEWS, D/O SRI.P.T.MATHEW, AGED 31 YEARS, PANATTUPARAMBIL HOUSE, DINESH APARTMENTS,** - **NEAR SIVA TEMPLE, WADAKANCHERRY P.O., THRISSUR - 680 582.** - ****Addl. R11. SIJO P.C., S/O.SRI.P.P.CHAKKU,AGED 37 YEARS, PUTHOOR HOUSE, THIROOR P.O., MG KAVU, THRISSUR - 680 581.** - ****Addl. R12. JINCY DAVIS.K., D/O.SRI.S.A.DEVASSY,AGED 31 YEARS, KANNANAIKKAL HOUSE, P.O.THALORE,** - **THRISSUR - 680 386.** - ****Addl. R13. REENA JOSEPH.P., D/O.SRI.P.M.JOSEPH,AGED 42 YEARS, THEKKUMPURAM HOUSE, VARAKKARA P.O.,** - **MANNAMPETTA, THRISSUR - 680 302.** - ****Addl.14. DHANYA JOSEPH V.,D/O SRI.V.M.JOSEPH,AGED 33 YEARS, KULANGARA HOUSE, THALIKULAM P.O., THRISSUR - 680 569.** - ****ADDL.R7 TO R14 ARE IMPLEADED AS PER ORDER DATED 5/2/16 IN IA.NO.1442/2016.** **R1 TO R3,ADDL.R5 BY SR GOVT. PLEADER SRI.SAIGI JACOB PALATTY R4 BY ADVS. SRI.TONY GEORGE KANNANTHANAM** **SRI.JIJI THOMAS** **R6 BY ADVS. SRI.BRIJESH MOHAN** **SMT.RESMI G. NAIR** **ADDL.R7 TO R14 BY ADVS. SRI.ANTONY MUKKATH** **SRI.K.I.TOGI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-10-2016, ALONG WITH WPC.NO. 7160/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.3237/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT-P1. TRUE COPY OF THE ORDER ED NO.251/2007 OF THE CORPORATE MANAGER DATED 16.4.2007.** **EXHIBIT-P2. TRUE COPY OF THE ORDER ED NO.540/2009 OF THE CORPORATE MANAGER DATED 28.10.2009.** **EXHIBIT-P3. TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.21384 OF 2009-P DATED 12.11.2009.** **EXHIBIT-P4. TRUE COPY OF THE DECISION REPORT IN ILR KER.2010(1) 193 DATED 11.12.2009.** **EXHIBIT-P5. TRUE COPY OF THE G.O.(RT) NO.5081/2011/G.EDN. DATED 17.11.2011 OF THE GOVERNMENT.** **EXHIBIT-P6. TRUE COPY OF THE APPLICATION FILED BEFORE THE MANAGER ALONG WITH A COVERING LETTER DATED 26.12.2011.** **EXHIBIT-P7. TRUE COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXHIBIT-P6 BY THE MANAGER DATED 28.12.2011.** **EXHIBIT-P8. TRUE COPY OF THE LETTER DATED 13/4/2007 ALONG WITH APPLICATION AND INCOME CERTIFICATE DATED 11/4/2007** **EXHIBIT P9 TRUE COPY OF THE DECISION REPORTED IN 2012(3) K.L.T. 214 (SC) DATED 3/7/2012** **EXHIBIT P10 TRUE COPY OF THE PETITION FILED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION DATED 27/3/2014** **EXHIBIT P11 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 12/09/2014** **EXHIBIT P11(A) TRUE COPY OF THE INCOME CERTIFICATE DATED 23/10/2009** - **EXHIBIT P12 TRUE COPY OF THE INFORMATION RECEIVED IN THIS REGARD FROM THE ASSISTANT EDUCATIONAL OFFICER DATED 03/4/2014** - **EXHIBIT P13 TRUE COPY OF THE REVISION PETITION BEFORE THE DIRECTOR DATED 07/07/2014** - **EXHIBIT P14 TRUE COPY OF THE APPOINTMENT ORDERS OF THE ASSISTANT EDUCATIONAL OFFICER** **2/-** **-2-** ## **WP(C).NO.3237/2012** ## **RESPONDENTS' EXHIBITS :** **EXHIBIT R4(A) COPY OF THE LETTER DATED 23/10/09 FROM THE PETITIONER TO THE 4TH RESPONDENT** - **EXHIBIT R4(B) COPY OF THE ORDER DATED 12/4/2010 ISSUED FROM THE 1ST RESPONDENT** **EXHIBIT R4(C) COPY OF THE REPLY DATED 16/5/12 BY THE PETITIONER TO THE 4TH RESPONDENT** - **EXHIBIT R4(D) COPY OF THE LIST DATED 15/5/2012 BY THE HEADMISTRESS OF GWLPS** - **EXHIBIT R4(E) COPY OF THE CERTIFICATE DATED 15/5/2012 BY THE ASST. EDL. OFFICER, TRICHUR** - **EXHIBIT R4(F) COPY OF THE LETTER DATED 14/6/12 FROM THE PUBLIC INFORMATION OFFICER TO THE 4TH RESPONDENT** - **EXHIBIT R4(G) COPY OF THE WRITTEN SUBMISSION DATED 12/8/11 ISSUED FROM THE 4TH RESPONDENT** - **EXHIBIT R4(H) COPY OF THE COVERING LETTER DATED 23/10/2009 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT** - **EXHIBIT R4(I) COPY OF THE REPLY DATED 17/6/2013 FROM THE PUBLIC INFORMATION OFFICER TO THE 4TH RESPONDENT** **EXHIBIT R7(A) COPY OF THE JUDGMENT DATED 07/01/2015 IN WP(C).NO.28398 OF 2004 OF THIS HON'BLE COURT** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## ALEXANDER THOMAS, J. ================== W.P.(C).Nos. 3237/2012 & 7160/2012 ================== Dated this the 21[st] day of October, 2016 J U D G M E N T The claimant for a Rule 51B compassionate appointment in the aided school concerned, as provided in the Kerala Education Rules, is the petitioner in W.P.(C).No.3237/2012. The said Writ Petition has been filed by the claimant to seek appropriate directions from this Court for enforcement and implementation of G.O(Rt)No.5081/ 2011/G.Edn. dated 17.11.2011 [Ext.P-5 in that W.P.(C)], whereby the State Government in the revisional order has directed the corporate manager of the aided school concerned to consider the revised application that may be submitted by the claimant for such compassionate appointment as per the Rules and to appoint the said claimant in the existing vacancy or in arising vacancy, if no vacancy is existing in the school, only if the claimant satisfies all the requisite eligibility conditions laid down in the Government order that governs the field [G.O(P)No.12/1999/P&ARD dated 24.5.1999]. The corporate manager of the aided school concerned is the petitioner in W.P.(C).No.7160/2012, which has been instituted W.P.(C).3237/12 & c.c - : 2 :- primarily to seek a writ of certiorari to challenge the aforementioned G.O. dated 17.11.2011 to the extent it adversely affects the said petitioner and other incidental reliefs. 2. The corporate manager is respondent No.4 in W.P.(C).No. 3237/2012, whereas the claimant is respondent No.2 in W.P.(C).No. 7160/2012. The pleadings as disclosed in W.P.(C).No.3237/2012 could be dealt with initially. For the sake of convenience the petitioner in W.P.(C).No. 3237/2012 will be referred hereinafter as “the claimant” and the petitioner in W.P.(C).No.7160/2012 will be referred as “the corporate manager”. 3. The mother of the claimant was a Lower Grade (L.G) Hindi Teacher in the St.Antony's Upper Primary (U.P) School, Puthenpeedika, which is under the corporate management of the Arch Diocese of Thrissur. The mother of the claimant died on 12.9.1993 and at the time of her death, the claimant was a minor (her date of birth being 31.5.1988) and the claimant attained majority only on 31.5.2006. In accordance with the scheme providing for compassionate appointment under Rule 51B of Chapter XIV-A KER, the claimant had submitted applications for compassionate appointment in April 2007, as per Exts.P-1 and P-1 (a) produced in W.P.(C).No.7160/2012. The said applications W.P.(C).3237/12 & c.c - : 3 :- preferred in April 2007 were rejected by the manager as per order dated 16.4.2007 [Ext.P-1 in W.P.(C).No.3237/ 2012]. After acquiring the Teacher's Training Course (TTC qualification), the claimant had submitted revised application dated 23.10.2009 as per Exts.P-3 and Ext.P-3(a) produced in W.P.(C).No.7160/2012. The said request was also rejected by the manager as per order dated 28.10.2009 [Ext.P-2 in W.P.(C).No. 3237/2012]. 4. As per Clause 19 of Ext.R-1(a) G.O(P) No.12/99/P&ARD dated 24.5.1999, the time limit for preferring applications under the scheme will be 2 years from the date of death of the employee concerned and in the case of minor, the period will be within 3 years after attaining majority. So in the instant case, as the claimant was a minor at the time of death of her mother, the period of limitation for submitting the application was upto 30.5.2009, as the claimant completed the age of majority (18 years) on 30.5.2006. Ext.P-2 rejection order herein was impugned by the petitioner by filing W.P. (C).No.8878/2010, in which, this Court disposed of the matter by directing the Government to take a decision on the revision petition dated 30.12.2009 preferred by the petitioner to challenge the said rejection order. In compliance with the said directions of this Court, the State Government offered a reasonable opportunity of being W.P.(C).3237/12 & c.c - : 4 :- heard to the claimant as well as the corporate manager and had thereafter passed the impugned Ext.P-5 G.O(Rt)No.5081/2011/ G.Edn. dated 17.11.2011 [which is also produced as Ext.P-6 in W.P.(C).No. 7160/2012 filed by the manager]. The Government therein found that, as the first application preferred by the petitioner submitted in April, 2007 did not contain all the relevant details and documents required as per the scheme, the manager had rejected the application and that though such rejection on that ground is in order, the manager should have given reasonable time to the claimant to re-submit the application, which was not done and that therefore, the plea of the manager that the claimant did not submit the application within the specified time limit is not correct. In the light of these aspects the Government ordered in the impugned Ext.P-5 revisional order that the claimant will submit a revised application with all the relevant records and documents required under the scheme to the manager within a period of two weeks from the receipt of that order and thereupon the manager was directed to appoint the claimant in the existing vacancy or arising vacancy, if no vacancy is existing in the school, only if the claimant satisfies all the eligibility conditions as laid down in Ext.R-1(a) G.O(P) dated 24.5.2009. In those terms, the said revision was W.P.(C).3237/12 & c.c - : 5 :- disposed of as per Ext.P-5. It is to be noted that the post sought by the claimant is L.P.S.A. (Lower Primary School Assistant) /U.P.S.A. (Upper Primary School Assistant). According to the claimant, the directions issued by the Government Ext.P-5 revisional order have not been complied with by the manager and in these circumstances, she has approached this Court with the case that she has no other alternative, but to seek the intervention of this Court and has sought the following prayers: “(i) call for the records relating to Exhibit P-1 and P-2 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ order or direction. (ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 4[th] Respondent Corporate Manager to appoint the Petitioner as Upper Primary School Assistant or Lower Primary School Assistant in existing/arising vacancies under dying-in-harness scheme implementing Exhibit P-5 order forthwith. (iii) issue a writ of mandamus or other appropriate writ order or direction commanding the 3[rd] Respondent District Educational Officer to approve the appointment of the Petitioner from the date of appointment and disburse salary and allowances forthwith.” Whereas the corporate manager has sought to impeach the correctness of the said revisional order dated 17.11.2011 by instituting W.P.(C).No.7160/2012, wherein the said impugned revisional order has been produced as Ext.P-6 dated 17.11.2011. The following are the prayers in W.P.(C).No. 7160/2012: “1. to issue a writ of certiorari or other appropriate order or direction to quash/set aside Ext.P-6 to the extent it adversely affects petitioner. W.P.(C).3237/12 & c.c - : 6 :- 2. to declare that the finding in Ext.P-6 that manager should have given reasonable time to 2[nd] respondent for resubmitting application after the rejection of her first application is illegal. 3. to declare that the stand of Manager that 2[nd] respondent did not submit application within time is valid and the contrary stand in Ext.P-6 is illegal. 4. to declare that the finding in Ext.P-6 that the Manager has not or did not give reasonable time to 2[nd] respondent herein to resubmit application is incorrect, invalid, illegal and so the consequent findings, permissions and directions also are not valid. 5. to declare that 2[nd] respondent herein is not entitled to any reliefs based on Ext.P-6.” 5. The respective contesting respondents in these W.P.(C)s. have filed their respective counter affidavits and pleadings in the matter. The respondent State Government has filed counter affidavit in W.P.(C).No.3237/2012 and has chosen to adopt the said pleadings in W.P.(C).No. 7160/2012. 6. Heard Sri.V.A.Muhammed, learned counsel appearing for the claimant [who is the petitioner in W.P.(C).No.3237/2012 and contesting respondent No.2 in W.P.(C).No.7160/2012], Sri.Tony George Kannanthanam, learned counsel appearing for the corporate manager concerned [who is the petitioner in W.P.(C).No. 7160/2012 and contesting respondent No.4 in W.P.(C).No.3237/2012], Sri.Brijesh Mohan, learned counsel appearing for contesting respondent No.6 in W.P.(C).No.3237/2012 and the learned Senior Government Pleader appearing for the official respondents W.P.(C).3237/12 & c.c - : 7 :- concerned. 7. After hearing the parties at length, this Court is of the view that the following main points arise for determination in this case, ie: - (i) whether the claimant is eligible and qualified to seek compassionate appointment under Rule 51B as far as the teaching post of L.P.S.A./ U.P.S.A. is concerned ? - (ii) If the claimant is not eligible and qualified to be considered for the post of L.P.S.A./U.P.S.A., whether she is eligible and qualified to be considered for appointment to a non-teaching post in the aided school ? The respective contentions urged by the corporate manager and the claimant will also be appropriately dealt with in the consideration of these points. ## 8. Rule 9A of Chapter XXIVA of KER and Rule 51B of Chapter XIVA of KER provide as follows: “R.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 dependants of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointments.” ## Rule 51B of Chapter XIV-A of KER: “R.51B. The Manger shall give employment to a dependent of an aided school teacher 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.” ## 9. It is common ground that Government order, which W.P.(C).3237/12 & c.c - : 8 :- governs the field as per the mandate of Rule 51B is the one as per Ext.R-1(a) G.O.(P) No.12/99/P&ARD dated 24.5.1999. Clause 16 of the said G.O.(P) provides as follows: ## “Category or appointment: 16. Appointment under the scheme will be limited to Class III and Class IV posts in the Subordinate Service. Last Grade Service and in Part-time Contingent Service to which direct recruitment is one of the methods of appointment. In the case of posts for which different methods of appointment are prescribed, the appointment under the scheme shall be set off against the quota earmarked for direct recruitment.. (emphasis supplied) Clause 17 of the said G.O. reads as follows: ## “Qualification for posts: 17. The qualification prescribed for direct recruitment to the post will apply. No relaxation in the qualifications will be allowed ” under the scheme. (emphasis supplied) 10. In the instant case, it is not in dispute that the claimant attained the age of majority only on 30.5.2006 and, therefore, the time limit for her to make the application under the scheme as per Clause 19 of the G.O., was 3 years from the date of attaining the majority, which was upto 30.5.2009. It is not in dispute that the claimant put up the claim as per the above referred first application, which was submitted in April, 2007 (which led to the impugned rejection order dated 16.4.2007). A copy of the application so submitted in April, 2007 has been produced as Ext.P-1 in W.P.(C). W.P.(C).3237/12 & c.c - : 9 :- No. 7160/2012. The claimant has sought appointment to the post of either L.P.S.A. or U.P.S.A. It is not in dispute that the claimant had not then possessed the requisite minimum qualifications to hold the said post L.P.S.A./U.P.S.A. which, as per the terms of the statutory prescription in the KER, are pass in SSLC and pass in TTC course conducted by a recognised institution. It is also common ground that the claimant was awarded the TTC certificate qualification only on 15.10.2009 and that the said TTC qualification was awarded to the claimant pursuant to the examination in which she appeared in June, 2009. So, essentially the question to be decided in this regard is as to whether the claimant was eligible and qualified for appointment under the scheme for the post of L.P.S.A. /U.P.S.A. The criteria for deciding the issue as to whether a candidate is eligible for appointment to a particular post, is generally dependent upon the criteria or method of appointment to such post. The general norms in regard to the method of appointment by promotion are that the incumbent should have secured all the qualifications as on the date of occurrence of the vacancy, whereas the norms for deciding the eligibility of a candidate for direct recruitment to hold post is as to whether the candidate had possessed all the requisite prescribed qualification as W.P.(C).3237/12 & c.c - : 10 :- on the last date for submission of the applications, subject to any other specific prescriptions in that regard, as may be made out in the rules governing the field or in the selection notification, etc. It will be profitable to examine the legal principles governing the field in that regard. It has been held in a catena of rulings as in Varghese v. State of Kerala, reported in 1981 KLT 458 (F.B) = ILR 1981 (2) Ker.28, Padmanabhan Nair v. Dy. Director reported in 1991(1) KLT 337 (FB) = 1991(1) KLJ 329 and Manager, HMHS v. State of Kerala, reported in 1987 (2) KLT 555, that it is the time of occurrence of the vacancy that is of utmost relevance for determining the question of promotion and not the time when the order of promotion is passed and that the relevant date for reckoning and determining the title of an incumbent to seek promotion must be definite and certain and it should not be depending upon the volition of the authorities concerned, as otherwise the determination in that regard would be arbitrary as many a time promotion may get delayed due to various reasons and it might be effected much after the date of occurrence of the vacancy concerned. This wholesome principle has also been relied on in the ruling of this Court in James Mathew v. Chief Justice, reported in 1977 KLT 622 = ILR 1977 (2) Ker.287 = AIR 1977 Ker.166, that the general rule is that promotion should be W.P.(C).3237/12 & c.c - : 11 :- made vis-a-vis the date of occurrence of the vacancy and not at the time of making of the appointment. The abovesaid general principle relating to the norms for determining the title of an incumbent to claim promotion to a post, would also be subject to any valid statutory prescription to the contrary, as in the provision contained in Rule 28(bbb) of KS&SSR Part II, which envisages that “ _Where a pass in any examination or test confers on a person the title to any right, benefit or concession, such title to the right, benefit or concession shall be deemed to have accrued,-_ _(a) in the case of a person, who has passed such examination or test before the 14[th] August, 1971, on the day following the last day of such examination or test in the subject or subjects; and_ _(b) in the case of a person who has passed such examination or test on or after 14[th] August, 1971, on the day following the last day of the whole examination or test in which he has successfully completed the examination or test by passing one or more subjects_ .” and it has been specifically mandated in the said rule that the principles contained in those provision shall apply for drawal of increments and for promotion not involving change of duties against vacancies remaining unfilled for want of test qualified persons. 11. Coming to the norms relating to direct recruitment, it has been held by the Apex Court in rulings as in Dr.M.V.Nair v. Union of India reported in 1993 (2) SCC 429, Rekha Chaturvedi v. University of Rajasthan, reported in 1993 Suppl. (3) SCC 168, etc. W.P.(C).3237/12 & c.c - : 12 :- that suitability and eligibility of candidates have to be considered with reference to the last date for receiving the applications, unless the notification calling for applications itself specifies such a date. However, a different note as struck by the Apex Court in the ruling in Ashok Kumar Sharma v. Chander Shekhar, reported in 1993 Supp. (2) SCC 611 [judgment dated 18.12.1992 in Civil Appeal Nos.5407-08 of 1992], wherein it was held by the majority among the learned Judges that if the applicant had possessed all the prescribed qualifications at least on the date of interview, for the direct recruitment selection, if not on the last date of submission of application, then it is only in the interest of wider selection to entertain applications of the candidates, who did not possess the requisite qualifications on the date of the application, but happened to possess the same at least as on the date of interview, despite express instructions in the advertisement that such application would not be entertained, etc. Later, the said judgment dated 18.12.1992 of the Supreme Court in Civil Appeal Nos.5407-08 of 1992 [reported in 1993 Supp.(2) SCC 611] was impugned by filing Review Petitions before the Apex Court, which led to judgment dated 10[th] March, 1997, in those Review Petitions, which led to the ruling Ashok Kumar Sharma v. Chander Shekhar, reported in (1997) W.P.(C).3237/12 & c.c - : 13 :- 4 SCC 18, wherein it was held that in a case where the notification has specifically prescribed by inviting applications that the qualifications are to be possessed as on the date of submission of the application, etc. granting permission to the candidates, who did not fulfill that requirement, but acquired the qualification later at the time of holding of the interview, is impermissible in law and majority opinion in the ruling in 1993 Supp. (2) SCC 611, was overruled, etc. The Karnataka High Court later took the view that the judgment dated 18.12.1992 of the Apex Court in Ashok Kumar Sharma v. Chander Shekhar, reported in 1993 Supp. (2) SCC 611, held the field earlier and that the said judgment was overruled only subsequently by the judgment dated 10.3.1997 in Ashok Kumar Sharma v. Chander Shekhar, reported in 1997 (4) SCC 18, etc. and this view was impugned before the Apex Court, which led to the ruling in M.A.Murthy v. State of Karnataka, reported in 2003 (7) SCC 517, wherein the said impugned judgment of the Karnataka High Court was reversed and it was held therein that normally the decision of the Supreme Court enunciating a principle of law, is applicable to all cases irrespective of the stage of pendency thereof, because it is assumed that what is enunciated by the Supreme Court is in fact the law from its inception and as long as the doctrine of W.P.(C).3237/12 & c.c - : 14 :- prospective overruling is not invoked, the legal principles as envisaged in the subsequent judgment will hold the field, etc. It was held in the said ruling reported in (2003) 7 SCC 517, that if the candidates are not qualified as on the last date of submission of application for direct recruitment are permitted to participate in the written examination and acquire eligibility on the date of the interview, the appointments of such candidates are improper. However, some relief was granted in the said judgment based on the peculiar facts of the case. In the case Bhupinderpal Singh v. State of Punjab, reported in (2000) 5 SCC 262, the Apex Court held that the cut-off date by reference to which eligibility requirement must be satisfied by the candidate seeking public employment is (i) the date appointed by the relevant service rules and if there is no cut-off date appointed by the rules, then such date as may be appointed for the purpose in the advertisement calling for applications (ii) that if there be no such date appointed, then the eligibility criteria shall be applied with reference to the last date appointed by which applications have to be received by the competent authority and in the said judgment, the Supreme Court specifically directed to put an end to the practice of determining the eligibility by reference to the date of interview, etc. It has also been W.P.(C).3237/12 & c.c - : 15 :- held in Ashok Kumar Sharma v. Union of India , reported in (2007) 4 SCC 54, that in the absence of any date specified in this behalf either in the notification or in the rules, the cut-off date for possession of requisite educational qualification would be the last date for submission of the applications. It is also to be noted that the 3 general methods of appointment conceived in public employment in various Governmental authorities, including those in the State of Kerala are by way of (1) direct recruitment (2) promotion (3) by transfer appointment. It cannot be contended for a moment that in the instant case, the appointment under the compassionate appointment scheme statutorily engrafted in Rule 51B and as amplified in Ext.R-1(a) Government order, is either by way of promotion or by way of transfer. Clauses 16 and 17 of the Government order, which enunciated the scheme, are very relevant for determining this question as to the method of appointment involved in the instant case and it has been specifically mandated by the Government in Clause 16 that the appointments under this scheme shall be set off against the quota earmarked for direct recruitment. So also, it is again mandated in Clause 17 thereof that the qualification prescribed for direct recruitment to the post will apply and no relaxation in the qualifications will be allowed under W.P.(C).3237/12 & c.c - : 16 :- the scheme. As already stated herein above, Clause 19, which deals with the time limit for preferring the application, is that it shall be 2 years from the date of death of the Government employee and in case the claimant is a minor at the time of death of the employee concerned, then the period for submission of the application shall be 3 years after attaining the majority of the claimant concerned. There are some other provisions in the scheme as per Ext.R-1(a) as in Clauses 20, 25, 26, 31, 32, 33, etc., which give a clear indication that there are some special features which are attached to the scheme, which are not necessarily always attached to direct recruitment, in view of the special nature of the scheme that has been enunciated by the Government of Kerala as per that Government order. But a reading of all those clauses will clearly indicate that none of them would take away one essential and cardinal feature in the scheme as flowing from Clause16 and Clause 17 thereof, that for the purpose of qualification to be possessed by the candidate concerned, it is the norms for direct recruitment that would necessarily apply and further that in the matter of regulating seniority from amongst the different methods of appointments, it has been specifically mandated therein that the appointment under the scheme shall be set off against the quota earmarked for direct W.P.(C).3237/12 & c.c - : 17 :- recruitment. Therefore, by virtue of the special features in this scheme, this Court has no hesitation to take the view that the norms that are applicable in the case of direct recruitment would necessarily apply for appointment under the scheme for deciding the crucial and pertinent issue as to whether a claimant has possessed all the requisite qualifications to seek appointment under the scheme. Clause 19 mandates about the time limit, which shall be 2 years from the date of the death of the employee concerned, where the claimant is a major at the time of the death of the employee and it shall be 3 years from the date of attaining majority of the claimant, in a case where the claimant happened to be a minor at the time of death of the employee concerned. Therefore, this Court is of the considered view that the claimant for compassionate scheme as per the provisions contained in KER and as amplified in Ext.R-1(a) Government order should necessarily possess all the prescribed qualifications to hold the post/posts concerned at least as on the prescribed last date within which the application in this regard is to be submitted by the claimant as per Clause 19 thereof. 12. Sri.V.A.Muhammed, learned counsel for the claimant pointed out that some anomalies may arise, if the said view is taken W.P.(C).3237/12 & c.c - : 18 :- by this Court, in view of the provisions contained in Clause 26 of Ext.R-1(a) Govt. Order and in this regard, Sri.V.A.Muhammed, the learned counsel has also pointed out this Court about the ruling of the Division Bench of this Court in Manager, P.H.M.K.M. H.S. & Anr. v. State of Kerala, reported in 2010 (2) KHC 57 (D.B) = 2010(2) KLT SN 76 (judgment dated 25.1.2010 in W.A.Nos.521, 612, 613, 696 of 2007) which has considered the scope of the said Clause 26, etc. Clause 26 of the said G.O. as has been set out in certain private publications, reads as follows: “Clause 26. Applicant will have the right to withdraw his/her application at any time before the job is accepted, so as to enable another dependent of the family to make his/her application for employment assistance.” (Refer page 773 of “ _Law Relating to Civil Services in Kerala_ ” edited by Sri.N.Sugathan, Sri.S.Prasanth, Advocates, 2009 Edition. Also refer page No.1359 of “ _Kerala Education Act, 1958 & KER 1959_ ” edited by Sri.K.E.Hamsa, Advocate, 2013 Edition and page 426 of “ _A Handbook on KS&SSR, 1958 with Case Laws_ ” edited by Sri.S.Seetharaman Potty, 2009 Edition, etc.) 13. Paragraph 11 of the Division Bench ruling in Manager, P.H.M.K.m. H.S. & Anr. v. State of Kerala , 2010 (2) KHC 57, has also quoted Clause 26 of the said scheme, which reads as follows: "Applicant will have the right to withdraw his/her application at any time before the job is accepted, so as to enable another W.P.(C).3237/12 & c.c - : 19 :- dependant of the family to make his/her application for employment assistance." A reading of the said clause as found in the said judgment, which appears to be based on the aforequoted private publications, shows that “ _the applicant is given a right to withdraw his/her application at any time before the job is accepted, so as to enable another dependent of the family to make_ _his/her application for employment assistance_ ”. On this basis, learned counsel for the claimant would contend that the legal principles that the claimant should necessarily possess all the qualifications as on a fixed day cannot be imported in the present scheme, as it gives a right to the original claimant to withdraw at any time before the job is accepted, so as to enable another dependent of the family to make his/her application for employment assistance and that the only time limit in this regard is that the right to withdraw the application should be exercised by the original applicant at any time before the job is accepted and that the said time limit need not at all coincide with the time limit within which the application to be submitted by the claimant as envisaged in Clause 19 thereof. Since the correctness of the wordings of abovesaid Clause 26 as found in the private publication was doubted by the other side, this Court had directed the State Government to provide an authenticated copy of the full text of the said Government order dated 25.4.1999 and in W.P.(C).3237/12 & c.c - : 20 :- compliance thereof, the learned Government Pleader has produced the full text authenticated copy of the G.O., which has been produced as Ext.R-1(a) as stated herein above. Clause 26 of Ext.R- ## 1(a) G.O. reads as follows: “Clause 26. Applicant will have the right to withdraw his/her application at any time within the time limit before the job is accepted, so as to enable another dependent of the family to make his/her application for employment assistance.” Thus it can be seen that a vital mistake has occurred in the wordings of Clause 26 as it is printed in the private publications inasmuch as the words, “ _within the time limit_ ” appearing between the words, “ _at any time_ ” and “ _before the job is accepted_ ” have been omitted to be printed in the private publications. Therefore, it is to be only noted that the correct version of the Government order, as made available by the State Government, clearly establishes the fact that Clause 26 has clearly stipulated that even though the original claimant has a right to withdraw his/her application at any time before the job is accepted, the said option to withdraw the application of the original claimant so as to put up a substitute claimant of the family, should necessarily be exercised within the time limit as mandated in Clause 19 of the G.O. That is to say, that even the option to withdraw the application of the original claimant before the job is accepted, should have been exercised within the W.P.(C).3237/12 & c.c - : 21 :- period of limitation as mandated in Clause 19 of the scheme and in a case, where the applicant is a major at the time of death of the employee, it shall be 2 years and in a case where the claimant is a minor at the time of the death of the employee concerned, it shall be 3 years from the date of attaining the age of majority. Therefore, suffice to hold that there is no incongruence in the provision made out in Clause 26 as well as Clause 19 of Ext.R-1(a) G.O. The rationale for the courts to consistently insist that applicant for direct recruitment should necessarily possess all the prescribed qualifications as on the last date of submission of application is that otherwise it might amount to giving rise to various occasions for arbitrarily changing the field of choice and changing the goal post fixed by the process of appointment. The said rationale envisaged for direct recruitment as referred to in the various aforequoted judgments, would also equally apply with equal vigour in the case of an appointment under the dying in harness scheme, which also in substantially and in essence would fall within the realm of direct recruitment as far as qualifications, inter se regulation of seniority, etc. is concerned, as can be seen from the aforequoted provisions. The scheme for compassionate appointment has been enunciated by the Government to provide a succor for those who are in distress W.P.(C).3237/12 & c.c - : 22 :- due to the death of the employee concerned and the said scheme should not be construed in a manner so as to give rise to occasions for claimants to keep acquiring various qualifications and then seek such appointments, which may otherwise have to be filled up as per the regular process of appointment as the posts earmarked for compassionate appointment are essentially those to be set off against the quota earmarked for direct recruitment. So merely with the objective to alleviate the distress faced by the death of an employee, the same should not be used as a handle for the claimants to aspire for appointments in the easy route by acquiring subsequently qualifications and to aspire for higher posts, which are otherwise permissible within the compassionate scheme. Therefore, this Court is of the considered view that the norms relating to direct recruitment in the matter of acquisition of qualification by the candidate concerned as on the last date of submission of the application for direct recruitment, are also certainly importable in cases relating to compassionate appointments as envisaged in Chapter XIV-A of KER as well as Ext.R-1(a) Government order. 14. As regards the ruling of the Division Bench reported in 2010 (2) KLT 57 (D.B.), apart from the fact that Clause 26 of the W.P.(C).3237/12 & c.c - : 23 :- G.O. as quoted therein, is based on the version as printed in the private publication, it is also to be noted that there were special and extenuating aspects in the facts and circumstances dealt with in that case, inasmuch as the original claimant had made a valid application within the time limit and the manager of the school had created fraudulent documents so as to give appointment to his own wife in a post so as to enable her to take up the claim of Rule 51B, which led to the situation of a clear attempt by the manager to resort to fraudulent practices and to throw out the claims of the compassionate appointment. In the light of these aspects, it is only to be held that a candidate like the claimant herein, who seeks compassionate appointment under the provisions of Chapter XIVA KER read with Ext.R-1(a) G.O., should necessarily possess all the prescribed qualifications to hold the post/posts concerned at least as on the permissible last date, upto to which application could be submitted in that regard. This is because, neither the Rules nor the executive orders have given any specific prescription in that regard and therefore, going by the legal principles laid down by the Apex Court in the aforesaid rulings, more particularly, in Bhupinderpal Singh's case reported in 2000(5) SCC 262 and Ashok Kumar Sonkar v. Union of India reported in 2007 (4) SCC 54, it is only to be held W.P.(C).3237/12 & c.c - : 24 :- that the candidates should have possessed all the prescribed qualifications at least as on the last date permissible for submission of the application in that regard. In the instant case it is not in dispute that the period of limitation stipulated for submission of the application was only upto 30.5.2009. The claimant had appeared for the TTC examination only in June 2009 and was awarded the TTC qualification only on 15.10.2009. In this regard, it is also relevant to note that the Apex Court, in the celebrated ruling in Charles K.Skaria & Ors. v. Dr.C.Mathew & Ors. reported in (1980) 2 SCC 752, has held clearly in para 26 thereof that generally an applicant for the degree/diploma qualification concerned earns the right to be added advantage of the degree/diploma only if _(a) he has completed the diploma examination on or before the last date for the application, (b) the result of the examination is also published before that date, and (c) the candidate's success in the diploma course is brought to the knowledge of the selection agency before completion of selection in an authentic or acceptable manner_ , etc. True that it has been held therein that the factum of possession of the qualification after the publication of the results in the examination, need not necessarily be tied with the manner and method for proving the same and that there could be some leeway that could be granted to the candidates concerned to produce the proof regarding W.P.(C).3237/12 & c.c - : 25 :- the successful passing of the qualifications concerned at a subsequent stage. However, it is well settled law that the candidate earns the title to the degree or diploma concerned only if all the aforesaid 3 conditions are fulfilled and so necessarily the results of the examination should also be published before the last date prescribed for submission of the application. In the instant case, it is not in dispute that the results of the TTC examination were published only much after the last date prescribed for submission of the application and the qualification was awarded only on 15.10.2009. In the light of these aspects, it is only to be held that the claimant is not qualified to put up a claim for appointment to the post LPSA/UPSA, as she secured one of the vital minimum prescribed qualifications thereof, viz., TTC qualification, only much after the last date permissible for submission of the application as per Clause 19 of the scheme. The said issue is answered accordingly. 15. As regards the second point, it would be pertinent to examine the general case of a claimant, who submits a claim under the scheme within the prescribed maximum time limit in respect of a post for which he is not qualified within the said time limit and to examine as to whether such a claimant could be considered for W.P.(C).3237/12 & c.c - : 26 :- appointment to any other post for which he has acquired all the prescribed qualifications within the said prescribed time limit. As regards the aspects regarding the possession of qualification and also as regards to the question as to which quota or method of appointment, such appointments should be adjusted in the scheme, the scheme unequivocally makes it clear that such appointments are in the realm of direct recruitment as can be seen from Clauses 16 and 17 of the Government Order. But as earlier mentioned hereinabove, there are certain other provisions in the scheme which are indeed can be characterised as special features attached to the scheme for compassionate appointment as enunciated by the Government. In this context, it would be relevant to refer to the following provisions in the Government Order. Clauses 20, 25, 30, 31, 32 & 33 provide as follows: “20. Applications for appointment from dependents of Government Servants who die-in-harness will be entertained only in the prescribed form given in Appendix 'A' with a court fee stamp of Rs.2 affixed thereon. The applications shall be submitted in the office where the Government Servants had last worked. Legal heirship certificate issued by the Tahsildar concerned, income certificate and death certificate should invariably be enclosed with the application. An applicant under the Compassionate Employment Scheme will be permitted to indicate the order of priority of the posts applied for. To the extent possible this order of priority will be accepted. However, if this is not possible the applicant will be appointed to any available vacancy in any of the subordinate services. 25. Appointment once offered and the post once applied for shall be allowed to be changed if the request for change is made within the time limit prescribed in para 19 above. W.P.(C).3237/12 & c.c - : 27 :- xxx xxx xxx 30. Appointment of dependents in general category posts such as Lower Division Clerk, Lower Division Typist, Peon etc. will be made in the concerned Department itself against an existing or arising vacancy. 31. If vacancies of Lower Division Clerk is not available and the applicant is qualified for appointment as Lower Division Typist, he will be appointed as Typist-Clerk against an existing vacancy of Lower Division Typist and given category change as Lower Division Clerk without loss of seniority, based on his option, adopting the general pattern regarding category change in the case of appointments under the Compassionate Employment Scheme also, i.e., the Typist-Clerk appointed under Compassionate Employment Scheme will remain as Typist-Clerk for a period of five years before category change is allowed. 32. If a vacancy of Peon is not available in the Department to accommodate a dependent and if there is vacancy and the applicant is willing, he will be appointed in part-time contingent post. Such persons will be allowed change of appointment as Peon prospectively at the earliest opportunity. 33. If none of the alternatives mentioned in paras 30, 31 or 32 above is possible for want of vacancies, such cases shall be referred to the General Administration (C.E. Cell) Department for allotment of vacancies.” Therefore, unlike an open competition selection process of direct recruitment, the process is not confined to any notified post but the scheme indeed can be characterised as quite flexible in its nature. Clause (20) makes it clear that the applicant will be permitted to indicate the 'order of priority of the posts' applied for and to the extent possible the said order of priority will be accepted. But, however, with the rider that if this is not possible, the applicant will be appointed to any other available vacancy in any of the subordinate services. Clause (20) would indeed reveal the heart of the matter to resolve the issue is as to whether an applicant should W.P.(C).3237/12 & c.c - : 28 :- necessarily be tied down only to the post to which he has indicated in his application or could be considered in any other posts. Therefore, the claimant as per Clause (20) would only expected to merely indicate the order of priority of the posts that he would prefer, provided those posts come within the eligible zone for the purpose of compassionate appointment scheme and to the extent possible, the said order of priority as shown by the claimant could be accepted by the competent authority concerned. However, this is not the be it and end it of all and the said clause further makes a rider that if it is not possible to appoint the claimant to any of the posts for which he has shown priority or preference, still the competent authority has the duty to consider whether he claimant could be appointed to any other available vacancy in respect of any other posts which could be filled up under the scheme. Therefore, essentially the claim or the application should certainly be preferred within the time limit as mandated in Clause (19). But, merely because the posts for which the claimant has given preference are not available or because the claimant is not fully qualified as on the cut off date to seek appointment to those posts, will not mean that the entire process could be terminated by rejecting the claim of the claimant. On the other hand, the scheme is quite flexible and W.P.(C).3237/12 & c.c - : 29 :- beneficial and it casts a duty on the competent authority to consider as to whether the claimant could be appointed to any of the posts provided he/she fulfils all the requisite prescribed qualifications to hold the post concerned as on the last permissible date for submission of the application. This view of the Court regarding the impact of Clause (20) can be seen from the other Clauses in the scheme as quoted hereinabove. For example, Clause (31) makes it clear that if vacancies of L.D.Clerks are not available and the applicant is qualified for appointment as L.D. Typist, he/she will be appointed as Typist-Clerk against an existing vacancy of L.D. Typist and given category change as L.D. Clerk without loss of seniority, based on his option, adopting the general pattern regarding category change in the case of appointment under the Compassionate Employment Scheme also, i.e., the Typist-Clerk appointed under Compassionate Employment Scheme will remain as Typist-Clerk for a period of five years before category change is allowed in terms of the conditions envisaged in Clause (31). Clause (32) also makes it clear that if a vacancy of Peon is not available in the Department to accommodate a dependent and if there is vacancy and the applicant is willing, he could be appointed in PartTime contingent post and such persons would be allowed change of W.P.(C).3237/12 & c.c - : 30 :- appointment as Peon prospectively at the earliest opportunity. However, Clause (33) mandates that if none of the alternatives mentioned in Clauses 30, 31 & 32 is possible for want of vacancies, then such cases should be referred to the authority under General Administration Department for allotment of vacancies, etc. The language employed in Clause (25) quoted above is not very clear and appears to be slightly confusing and what it conveys is that even if the claimant has applied for that post earlier and the appointment is offered to that post to the claimant, then he/she will be allowed to opt for a different post if the said option is made within the last permissible date for submission of application as per Clause (19) thereof. Therefore, it is conveyed from Clause (25) that the said restriction therein would apply if offer of the appointment is made within the period of 2 years or 3 years as mentioned in Clause (30). It is common matter of knowledge that the chances for getting the offer of appointment especially in Government Department for compassionate appointment within the time limit for submission of application is quite remote. This case on facts is not much concerned with the applicability of Clause (25) as the offer of appointment was not made within the said time limit. But, as already indicated above, the core of the matter in respect of this W.P.(C).3237/12 & c.c - : 31 :- issue is emanating from Clause (20) and the flexible provisions contained in Clause (20) is further adumbrated and illustrated as in Clauses 31, 32 and 33 as indicated above. Therefore, this Court has no hesitation to conclude that so long as the claimant makes a claim for compassionate appointment within the period of limitation as stipulated in Clause (19) of the scheme, then, even if the said claimant is not qualified for any of the posts for which he has shown priority or preference in his application, but still the competent authority is bound to consider as to whether such claimant could be appointed in respect of any other post provided he/she has acquired all the prescribed qualifications to hold such post within the said time limit. The general issue in that regard is answered accordingly. 16. Sri.Tony George Kannanthanam, learned counsel for the corporate manager has submitted that the first application dated 13.4.2007 [Ext.P-1 series in W.P.(C).No.7160/2012] submitted by the claimant was rejected as per the first rejection order dated 16.4.2007 [Ext.P-1 in W.P.(C).No.3237/2012 and Ext.P-2 in W.P.(C). No.7160/2012]. In the said application the specific plea put forward by the claimant is that she should be given time for appointment of posting after she secures the TTC qualification. W.P.(C).3237/12 & c.c - : 32 :- After the first rejection order, the claimant submitted second application dated 23.10.2009 [Ext.P-3 in W.P.(C).No.7160/2012] and the same was rejected as per the second rejection order dated 28.10.2009 [Ext.P2 in W.P.(C).No.3237/2012 and Ext.P-4 in W.P.(C). No.7160/2012] and grounds of rejection are given in both the rejection orders. It is pointed out that the first rejection occasion was not only because the petitioner had not made available any details as to whether she had acquired the qualification, but it is pointed out that the post applied by the claimant in both the applications happened to be only in respect of LPSA/UPSA and not for any other posts and that the first application was lacking not only the details as to whether the claimant acquired the TTC qualification to hold the LPSA/UPSA post but that the said application was also without accompanying any vital documents such as consent letter from the father, legal heirship certificate, death certificate and other certificates in support of her claim. That the revision preferred by the claimant was only as against the second rejection order and the Government in the impugned Ext.P-5 revisional order dated 17.11.2011 [Ext.P-5 in W.P.(C).No.3237/2012 and Ext.P-6 in W.P.(C).No.7160/2012] has clearly found that the first rejection is in order, etc., and that after having found that the W.P.(C).3237/12 & c.c - : 33 :- first rejection is in order, it was not proper for the Government to further find in the said impugned revisional order that the manager should have given reasonable time to the claimant for resubmitting the first application which was not done and that on this erroneous basis that it was found by the Government that the plea of time bar taken by the manager is not correct, etc. According to the learned counsel for the manager, the finding in the revisional order that “ _but the manager should have given reasonable time to the applicant for re-submitting the application which has not been done and therefore the plea of the manager that the petitioner did not submit application within the specified time is not correct_ ,” etc., is a wrong finding inasmuch as the Government in the same breath has clearly found that the first rejection made by the manager is in order. Further, it is contended by Sri.Tony George Kannanthanam, learned counsel for the manager that since the aforementioned impugned findings made by the Government are wrong, the further consequential direction issued in the revisional order enabling the claimant to submit revised application under the scheme to the manager within 2 weeks and with a further direction to the manager to appoint the claimant in the existing vacancy or arising vacancy if she fulfils the prescribed qualifications under the scheme is also equally wrong and untenable. Per contra Sri.V. A. W.P.(C).3237/12 & c.c - : 34 :- Mohammed, learned counsel appearing for the claimant and Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for the official respondents would urge that the said contentions raised by the corporate manager are absolutely untenable and unsustainable in view of the clear position of law settled by the Apex Court in the ruling in Shreejith L. Vs. Deputy Director (Education - Kerala) and others reported in 2012 (7) SCC 248 = 2012 (3) KLT 214. In the above said ruling in Shreejith's case (supra), reported in 2012 (7) SCC 248 the Apex Court has dealt with a batch of cases dealing with similar issues arising out of the scheme of compassionate appointment envisaged under Rule 51-B of Chapter XIV-A KER and Rule 7A of Chapter XXIV-A KER read with the provisions contained in the above said Government Order [Ext.R-1(a) herein]. In paragraph 11 (See SCC report) of the said ruling, the Apex Court has clearly held that the conjoint reading of the Statutory Rules and Clause 19 of the Government Order would clearly show that the compassionate appointment scheme itself permits applications to be made within the said period envisaged in the Government Order and that in the case of minors, the permissible period for making applications is 3 years from the date the minor attains majority. On the fact it was found that the W.P.(C).3237/12 & c.c - : 35 :- claimant therein had made requisite application within three years of attaining his majority and that such being the position, it was held that the scheme not only permitted making of application, but in conjunction with the Statutory Rules, which entitle the claimant to seek such an appointment, subject to his fulfilling other requirements stipulated in the scheme. The Apex Court has clearly observed in para 11 thereof that the validity or wisdom whereof the scheme is not under challenge and so long as the scheme is not under challenge, the only irresistible conclusion is that the scheme permitted not only making of an application by the claimant but read in conjunction with the provisions of the statutory rules, it entitle the claimant to seek such an appointment subject to his fulfilling the other requirements stipulated in the rules. 17. Further, while dealing with another case, wherein the claimant had attained majority on 08-05-1995 and whereas the application under the scheme was submitted for the first time only on 10-09-2007, the Apex Court clearly held in paragraph No.18 that on the face of it, it was beyond the period stipulated in the scheme for making such an application and that the High Court in the impugned judgment appears to have confused an application required to be filed within the period stipulated for the above with W.P.(C).3237/12 & c.c - : 36 :- the availability of a vacancy against which such an application could be considered by the Manager and these two aspects are two distinct and different matters. That is to say that the making of an application and the actual availability of vacancies are two different and distinct aspects and even if, vacancies are not available at all, the claimant is under the mandatory obligation to submit his claim within the period of limitation as stipulated in Clause 19 of the scheme. Accordingly, the Apex Court held unequivocally in paragraph 18 that what was most important was the making of an application of her appointment on compassionate basis within the period stipulated for the above purpose and whether or not a vacancy is available, had nothing to do with the making of an application itself. Therefore, the said ruling has clearly ruled out all doubts as to whether the time limit stipulated in Clause 19 is mandatory or directory and it has been amply made clear in the said Apex Court ruling that the said provision relating to period of limitation as stipulated in Clause 19 is mandatory and has to be scrupulously followed. Even in the case, where it is an indisputable case of the employer that no vacancies were available at that point of time or could not be expected to arise within a reasonable time limit therefrom, still that will not give rise to any excuse for the W.P.(C).3237/12 & c.c - : 37 :- claimant in not making the claim within the time limit and in a case where the claimant does not prefer the claim for compassionate appointment within the said time limit, then he cannot have any right to be considered for appointment under the compassionate scheme. In this connection, it would be profitable to refer to paras 18 & 19 of the said ruling in Shreejith's case supra, which read as follows: "18. There is considerable merit in the contention urged by Mr Rajan. It is not in dispute that Respondent 1 had attained majority on 8-5-1995 whereas the application for compassionate appointment was made on 10-9-2007. This application was, on the face of it, beyond the period stipulated in the scheme for making such a claim. 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 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." 18. The Apex Court also dealt with a case where a claim was preferred within the time limit, as the application was suffered from various defects including the application submitted was not in the W.P.(C).3237/12 & c.c - : 38 :- prescribed format, etc. Accordingly, it is argued before the Apex Court on behalf of the management that the first application submitted by the claimant on 02-05-1990 was within the prescribed time limit but the same was not in proper format and it was argued by the Manager that it was essential, not only that the application should be filed within the prescribed time limit but also that it should be in the prescribed format etc. and that in the said case, the first application preferred by the claimant must be deemed to be known as it suffered from various defects. However, while dealing with the said contention raised by the school management, the Apex Court clearly ordered the same in paragraph 24 of the said ruling and held that at any rate, what is most important was the substance of the application and not the form and the application in substance conveyed the request for compassionate appointment and provided the information which the manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. Further, it was held therein that it should be borne in mind that the scheme is meant to be a beneficial scheme aimed at helping those in need or assistance on account of an untimely demise in the family and inasmuch as the Educational Officer and W.P.(C).3237/12 & c.c - : 39 :- the High Court had found the claimant to be eligible for appointment and directed the Manager to make such an appointment, they have committed no error to deserve any interference under Article 136 of the constitution of India. Paragraphs 23 and 24 of the said ruling are extracted below for easy reference. "23. Mr Rajan, learned Senior Counsel, argued that the first application submitted by Respondent 4 for compassionate appointment on 2-5-1990 was no doubt within the time prescribed but the same was not in proper format. It was, argued the learned counsel, essential that the application should be not only within the time stipulated for the purpose but also in the prescribed format. Inasmuch as that was not so in the instant case the application must be deemed to be nonest. 24. We regret our inability to accept that submission. The Manager of the school had on receipt of the application from Respondent 4 not only acknowledged the request for appointment but also recognised that Respondent 4 possessed the requisite qualification for appointment as a Hindi teacher. The request was not, however, granted as no vacancy in the cadre was available in the school at that time. What is noteworthy is that the Manager did not reject the application on the ground that the same was not in the prescribed format or that the application was deficient in disclosing information that was essential for consideration of the prayer for a compassionate appointment. If the authority concerned before whom the application was moved and who was supposed to consider the request, did not find the format of the application to be a disabling factor for a proper consideration thereof, it could not be set up as a ground for rejection of the prayer, by the beneficiary of the appointment made in derogation of the rights of Respondent 4. At any rate, what was important was the substance of the application and not the form. If the application in substance conveyed the request for a compassionate appointment and provided the information which the Manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. We need to remind ourselves that the scheme is meant to be a beneficial scheme aimed at helping those in need of assistance on account of an untimely demise in the family. Inasmuch as the Assistant Educational Officer and even the High Court found Respondent 4 to be eligible for appointment and directed the Manager to make such an W.P.(C).3237/12 & c.c - : 40 :- appointment, they committed no error to warrant our interference under Article 136 of the Constitution. The civil appeal is, therefore, liable to be dismissed." 19. S.L.P(C).No.4467 of 2010 dealt with by the Apex Court in the aforecited judgment is in respect of a case wherein the application submitted directly by the claimant before the manager was returned as unclaimed and the claimant was then constrained to submit the application before the District Educational Officer who in turn had returned it with the direction that the same is to be submitted before the Manager but in spite of this, the Manager had overlooked the said claim and had given appointments to other persons, etc. When the matter was taken up in challenge in writ proceedings, the Division Bench held that even if the application was found to be defective for any reason, instead of rejecting the same summarily given an opportunity to the claimant to correct the mistake and filing an application in accordance with the scheme. The said ruling of the Division Bench dealt within is in respect of the ruling in Unnikrishnan K. Vs. Manager and others reported in 2010 (1) ILR (KER) 193. 20. While dealing with the Civil Appeal for the SLP of arising from the said Division Bench ruling, the Apex Court held in paragraph 35 of Shreejith's case (supra) that the said view taken by W.P.(C).3237/12 & c.c - : 41 :- the Division Bench is correct and that if the application is found to be defective for any reason, the manager should have, instead of rejecting the same summarily, given an opportunity to the claimant to correct the mistake by filing a proper application in accordance with the rules. However, the Apex Court in paragraph 37 of the ruling found that the view taken by the Division Bench based on an earlier ruling of this Court in Baijukumar Vs. DEO & Others reported in 2003 (3) KLT 240 is not the correct view inasmuch as there is no obligation on the part of the management to go in search of the legal heirs of the deceased employees or educate them about the right to seek an appointment under the scheme and if a person who is eligible for the benefit under the scheme, he can, on his own and indeed should approach and seek an appointment and that the contra view taken by this Court in Baijukumar Vs. DEO & Others referred to hereinabove and other rulings appears to be unreasonable and hence not correct, etc. However, the Apex Court again reiterated in paragraph 38 clearly and categorically that their Lordships of the Supreme Court had no manner of doubt, whatsoever, that in case an application is made by the legal heirs of a deceased employee claiming the benefit of the scheme for compassionate appointment, the deficiencies and defects, if any, in W.P.(C).3237/12 & c.c - : 42 :- the said application ought to be pointed out to the person concerned, to enable him to remove the same within a reasonable time and that if the defects are not removed within the granted time limit, an adverse inference is to be drawn against the claimant who is in default. Therefore, what emerges from the above said ruling of Shreejith's case (supra), is that so long as the validity or wisdom whereof the scheme is not under challenge, the only irresistible conclusion is that it is manifestly clear that the scheme not only permitted making of an application, but when read in conjunction with the statutory rules of the Kerala Education Rules, it entitles the claimant to seek such an appointment, subject to his/her fulfilling the other requirements stipulated in the Rules. Further that the provisions contained in Clause 19 of the scheme is mandatory and the matters relating to making of an application within the time limit and the availabilities or modalities of vacancies to accommodate such claimant, are two distinct and different matters and even if no vacancies are available in the posting for future, the claimant is under the mandatory obligation to submit his claim within the period of limitation as mandated in clause 19 and fail to do so would entail in forfeiture of all his rights to be considered for appointment under the scheme, etc. Still further, their Lordship of W.P.(C).3237/12 & c.c - : 43 :- the Supreme Court has clearly held in para 24 that even if the application is not submitted in the prescribed format, what is most important is the substance conveyed by the request for compassionate appointment and if the request is made within the time limit and even if it is not accompanied by the application in the prescribed format, so long as the said request in substance has conveyed and provided with necessary information which the manager required to consider the request, the very fact that the information was not given in a given format would not have been a ground to turn out the request. Still further the Apex Court has clearly found that even if the application itself found to be defective for any reason, the Manager should have instead of rejecting the same summarily, given an opportunity to the claimant to correct the mistakes in the application and file a proper application in accordance with the rules. In this regard, it is also further reiterated by the Apex Court that though the Manager has no duty to go in search of the legal representatives of the deceased employee or to make them aware of the right to seek an appointment under the scheme he is obliged to point out the deficiencies and defects, if any, in the application that is submitted before him so as to enable the claimant concerned, to remove all such defects within a W.P.(C).3237/12 & c.c - : 44 :- reasonable time and only if the defects are not removed within the time limit, an adverse inference can be drawn against him with respect to defect and default. Sri. Tony Geroge Kannamthanam would urge that the aforementioned legal principles laid down by the Apex Court in Shreejith's case (supra), will not enure to the benefit of the claimant in the facts of this case, etc. 21. Per contra, Sri.V.A.Mohammed, learned Counsel appearing for the claimant and Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for the respondent State Government would seriously urge that the aforequoted legal principles flowing from the ruling of the Apex Court in Shreejith's case (supra) would apply on all fours to the facts of this case and that the view taken by the Government, in the impugned revisional order cannot be found fault with. Having given anxious consideration to the rival pleas, this Court is of the considered opinion that the Government certainly went wrong in assuming that the claimant was qualified and eligible to be considered for appointment as LPSA/UPSA under the scheme. It may be noted that the Government in the impugned revisional order had directed the Manager to consider the claim of the petitioner for appointing him to the post of LPSA/UPSA. This has been already found to be wrong W.P.(C).3237/12 & c.c - : 45 :- as the claimant did not possess all the requisite qualifications to hold the post of LPSA/UPSA as on the last permissible date of submission of the application inasmuch as she had secured the qualification only much later. But for this serious mistake, this Court is of the considered opinion that the view taken by the respondent State Government in the impugned revisional order cannot be found fault with, having regard to the wholesome legal principles laid down by the Apex Court in Shreejith's case (supra). 22. It is beyond doubt and it is not in controversy that the claimant had made the claim and had even submitted the application in the prescribed format on 13-04-2007. This is within the period of limitation as envisaged in Clause 19. A copy of the said application has been produced as Ext.P-1 series in W.P.(C) No.7160/2012. The said application clearly disclose that all the elementary and necessary informations regarding the request of the petitioner have been conveyed therein. True that the claimant had shown only the order of priority of preference for appointment for the post as LPSA/UPSA and no other posts. It is also an indisputable position that the claimant was not qualified to hold the post of LPSA/UPSA either as on the date of submission of Ext.P-1 application dated 13-04-2007 or as on the last permissible date of W.P.(C).3237/12 & c.c - : 46 :- submission of application (30-05-2009). It is also not in dispute that the said application was not accompanied by several vital documents like consent letter from the father, legal heirship certificate, qualification certificate, income certificate, etc. Therefore, undoubtedly the said application was suffering from certain vital defects. It is now beyond the pale of any doubt that in spite of such defects, the Manager could not have outrightly rejected the application in the manner as it has ordered in the impugned rejection order in the light of the above said legal principles laid down by the Apex Court. 23. It has already made clear herein above that the application conceived in the scheme is not in respect of any specified or exhaustive post alone and it is, indeed, a flexible system and the applicant is only expected to show his mere order of preference and he is not even obliged to show preference for all the various categories of posts that is available. Even if the claimant has not possessed all the requisite qualifications to hold the post for which he has shown preference, still the competent authority concerned is bound to examine whether the claimant could be considered for appointment for any of the other posts which are coming under the scheme, for which the claimant is holding all the W.P.(C).3237/12 & c.c - : 47 :- requisite qualifications. Therefore, the Manager was obliged to convey this clear position to the claimant and instruct him as to whether he is willing to be considered for any of the other posts. It is pointed out by Shri.V.A.Muhammed, learned counsel appearing for the writ petitioner and by the learned Senior Government Pleader appearing for the official respondents that as the claimant had passed S.S.L.C. and +2 qualification within the above said time limit, she was fully qualified to hold the post of Full Time Menial in the school which is also one of the posts which comes within the zone of the compassionate appointment scheme in aided schools. Therefore, the Manager should have pointed out this aspect to the claimant to either give a willingness as to whether she could be considered for the post of Full Time Menial or any other for which she was qualified and also give her sufficient time to clear all the above defects in producing the vital documents. Even if the claimant in such a case is not willing to be considered for appointment to a lower post, still in a case like this, where the application was submitted well before the period of limitation, the Manager could have instructed the claimant that she should produce the qualification certificates to prove her eligibility to hold the post of LPSA/UPSA at least before the expiry of the period of limitation. W.P.(C).3237/12 & c.c - : 48 :- The first rejection order is not in consonance with the legal principles as laid down by the Apex Court and is against the provisions contained in the scheme and the statutory rules governing the scheme. True that the claimant has not technically and specifically challenged the first rejection order in the Revision Petition preferred by her before the Government which led to the impugned revisional order, wherein a specific challenge was directed as against the second rejection order. But the Government has rightly considered the entire issues at large as the submission of the second application is only in continuation of the original claim and what is most relevant in the matter is as to whether the claim has been preferred within the time limit. So long as the claim is preferred within the time limit, it is only to be held that the so called second application preferred by the claimant is only to be treated as in continuation of the original claim and therefore, the Government cannot be found fault with for taking a wholesome perspective of the matter as to whether the rejection of the claim made by the claimant at the instance of the Manager, is right and correct. True that the Government has observed that the first rejection is in order. But the sentences employed in the impugned revisional order should not be read in isolation and the Government W.P.(C).3237/12 & c.c - : 49 :- has made its mind very clear that its considered view is that in spite of the fact that the petitioner had preferred a defective claim, the Manager was under the bounden duty to give reasonable time to the claimant for resubmitting the claim which has not been done in instant case. Therefore, the further finding of the Government is that the plea of the Manager based on time bar is untenable, is also equally correct. The said considered view rendered by the Government in the impugned Ext.P-6 is fully in consonance with the legal principles discernible from the Apex Court's ruling in Shreejith's case supra. True that there has been some delay on the part of the claimant to submit the revised application after the first rejection order. But all the parties concerned including the claimant, the corporate Manager and the Official respondents including the State Government appears to have proceeded on the premise that the claimant was otherwise eligible to be considered for appointment to the post of LPSA/UPSA. Moreover, the claimant has specifically urged in paragraph 3 of the Revision Petition submitted by her (Ext.P-5 in W.P.(C) No.7160/2012), that the second application preferred by her is in continuation of her claim as raised in the first application and therefore the claim made by the claimant is not belated inasmuch as the original claim has been filed W.P.(C).3237/12 & c.c - : 50 :- within the time limit. The Government has conclusively held as follows in the last two paragraphs of the impugned revisional order, which reads as follows: "Government examined all the oral as well as written arguments of both sides in detail. In Rule 51 B it is laid down that "The Manager shall give employment to a dependent of an aided school teacher 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. From this it is evident that the application for employment assistance should only be considered in accordance with Government orders issued in this regard viz G.O.(P)12/99/P&ARD dated 24/05/1999. However as per the compassionate employment scheme application for appointment should be submitted to the authorities concerned within a period of 3 years after the applicant became major, if the applicant is minor at the time of death of the employee. Accordingly the applicant submitted applications in April 2007, i.e. Within the specified time limit. But as the application did not contain all the documents required as per the scheme, the Manager rejected the application, which is in order. But the Manager should have given reasonable time to the applicant for re-submitting the application which has not been done. Therefore the plea of the Manager that the petitioner did not submit application within the specified time is not correct. In the circumstances, the petitioner is directed to submit revised application with all records/ documents required under the scheme to the Manager within a period of 14 days after the receipt of this order. The Manager is directed to appoint the petitioner in the existing vacancy of arising vacancy if no vacancy is existing in the school, only if the applicant satisfies all conditions laid down in G.O.(P) No.12/99/G.Edn. dated 24/05/1999 and the Ext.P4 Revision Petition is disposed of accordingly. The judgment of the Hon'ble High Court is thus complied with." 24. In the light of these findings, the contention urged by the learned counsel for the Corporate Manager that the claim made by the claimant is not liable to be considered as there was no valid application within the time limit, is clearly untenable as the claim was made within the time limit and the very foundation of its W.P.(C).3237/12 & c.c - : 51 :- rejection goes totally against the legal principles laid down by the Apex Court in Shreejith's case (supra). It may also be noted that all concerned, including the claimant, the Corporate Manager and the Official Respondents, have proceeded on the premise as if the claimant was otherwise qualified to be appointed for the post of LPSA/UPSA as per the scheme. This was on a totally wrong premise but at the same time the claimant will indeed have a right to be considered for appointment for other posts and it clearly appears that the claimant did possess all the qualification to hold the post of Full Time Menial within the time limit, as on the permissible last date for submission of the application. 25. Further, it is contended by the learned counsel for the Corporate Manager that the claimant has suppressed crucial aspects like the fact that her father had remarried within two years from the death of the deceased and that this is a crucial and material suppression of fact and that the claimant should not be sued etc. It is not in dispute that the claimant has not disclosed anywhere in the application that her father had subsequently remarried after the death of the employee concerned (who is the mother of the claimant). Learned Counsel for the Corporate Manager has not been able to point out before this Court that the prescribed format of the W.P.(C).3237/12 & c.c - : 52 :- application or any of the provisions in Ext.R-1(a) Government Order mandates that such an information should be conveyed by the claimant while making the application for compassionate appointment. There cannot be much relevance in the factum of remarriage of the father of the claimant except its impact as regards the over all income of the family at the relevant time. This Court would pose the question as to whether in such cases where ordinarily there will be a quite long and inordinate delay in getting appointment under the compassionate scheme, should the deceased employee's spouse wait indefinitely and postpone his/her future marriage plans until the dependant of the family gets a compassionate appointment. This Court has no doubt to hold that such an insistence would be most unreasonable and inhumane. While dealing with the case as to whether a married daughter is entitled to be considered for appointment, this Court held in the ruling in St.Ignatius High School' Vs. State of Kerala & Others reported in ILR 2005 (3) KER 666 that married daughter is also entitled to be considered for appointment, as Rule 51-B of the Government Order does not make a married daughter disentitle to such appointment and it is also incidentally held therein that "one cannot wait unendingly, expecting that the manager will once concede to the request W.P.(C).3237/12 & c.c - : 53 :- for compassionate appointment, and then to marry". The said observations made by this Court are also quite apt while dealing with this aspect of the matter and therefore it is not reasonable or relevant to insist that the eligibility of the dependant of a deceased employee will have any direct relevance to the future marriage plans of the spouse of the deceased employee except as regards the income level of the family at the relevant time. Moreover, the Manager has not been able to establish before this Court as to how this factum of non disclosure has materially vitiated the decision making process in the impugned revisional order. It is pointed out by the learned Counsel for the Manager that the father of the claimant had married a Government School teacher and if that be so, it will certainly have some effect on the income limit as contemplated in Clause 12 of the Government Order. Moreover, it is clearly stated in the original claim submitted by the claimant that the income certificate is also enclosed therewith and a copy of the said income certificate submitted by the claimant on 13-04-2007 has been produced as Ext.R-2(d) in the counter affidavit filed by the claimant in W.P.(C) No.7160/2012, wherein the income certificate dated 11-04-2007, issued by the Revenue Authority concerned has been produced, which clearly stated that the annual income of W.P.(C).3237/12 & c.c - : 54 :- father of the claimant is Rs.48,000/- (Rupees Forty eight thousand only) and annual income of spouse of father is Rs.1,39,836/(Rupees One lakh thirty nine thousand eight hundred and thirty six only) and the total annual income of family of the claimant is Rs.1,87,836/- (Rupees One lakh eighty seven thousand eight hundred and thirty six only) which is as on 11-04-2007. Therefore the fact that the father of the claimant had remarried has been clearly disclosed in Ext.R-2(d) which has been submitted along with the first application. Therefore, the said contention of the learned counsel for the Manager is also over ruled. It is further contended by the learned Counsel for the Corporate Manager that the claimant cannot be said to be a dependant as envisaged in the scheme and therefore she is ineligible to be considered. It is pointed out by both the learned Counsel for the claimant as well as the learned Senior Government Pleader that such a ground has never been urged by the Manager in any of the rejection orders or before the Government and it is not open to the Manager to raise the said plea at this point of time. The said plea made by the Manager is on the basis that the claimant's father had remarried and therefore the claimant cannot be said to be a dependant of the deceased at the time of making of the application. This contention is untenable as W.P.(C).3237/12 & c.c - : 55 :- the dependency of the claimant is to be assessed from the angle whether the claimant was a dependant of the deceased employee at the time of death of the employee. Merely because the spouse of the deceased employee has remarried subsequently will not lead to a situation that the son or daughter of the deceased employee will loose their dependancy status as conceived in the scheme on account of remarriage of the spouse of the deceased employee. It is also contented that as the claimant herself had married, she cannot be treated as a dependant of the deceased employee in terms of the scheme. The said contention is also untenable in the light of the aforequoted ruling of this Court in St.Ignatius High School's case (supra), reported in ILR 2005 (3) KER 666 wherein the Division Bench has clearly held that married daughter is also entitled to be considered for appointment, as per Rule 51B Government Order does not make a married daughter disentitled to such appointment etc. Moreover, it had also been held by this Court in the ruling in C.A.H.S. Vs. DEO, Palakkad reported in 2007(4) KLT SN 57 (C.No.63), Manager, that a married daughter would also come within the ambit of dependant, as envisaged in the said scheme, subject to fulfilling of all other requirements in the scheme. Therefore, the said contention raised by the Manager is also over ruled. W.P.(C).3237/12 & c.c - : 56 :- 26. It has been further urged by the learned counsel for the Manager that the claimant should be non suited as she had produced certain false or manipulated documents before the Manager as well as before this Court as can be seen from Ext.P-3(a) produced in W.P.(C) No.7160/2012. It is pointed out by the Manager that the above said Ext.P-3(a) is the copy of the original of the said document which was produced before the Manager at the time of submission of second application. Further that the claimant had produced the said document before the Government in a manipulated manner as can be seen from Ext.R-4(a) produced in the counter affidavit filed by the Manager in W.P.(C).No.3237/2012. From a comparison of these documents, it can be seen that Ext.P-3 (a) in W.P.(C) No.7160/2012 that the footnote thereof makes mention of only four documents, whereas the footnote of the above said Ext.R-4(a) (produced in W.P.(C)No.3237/2012), mentions not only the about said four documents, but also the 5[th] document viz., Certificate of Death. The first four entries in the footnote are in type written version, whereas the fifth entry in the footnote of Ext.R-4(a) is in a hand written version. Both the above said Ext.P-3 (a) and Ext.R-4(a) have not been produced by the claimant before this Court but by the Corporate Manager. Therefore, the claimant W.P.(C).3237/12 & c.c - : 57 :- cannot be accused of having produced any manipulated or false documents before this Court. Assuming that Ext.R-4(a) was the one produced by the claimant before the Government at the time of the revision to show as if, it is the true copy of the above said Ext.P-3 (a), there is a variance in the former. But the Manager has not in any manner, made it clear as to how this entry was very material for the consideration and the decision making process which led to the impugned revisional order. A reading of the impugned revisional order would make it clear that Ext.R-4(a) by itself has not in any manner influenced the Government in its decision making process which led to the impugned revisional order. Moreover, at best, it might follow that the Death Certificate was not produced by the claimant at the time of submission of the second application. But it is not pointed out by the Manager in the second rejection order that the claimant has not produced the Death Certificate at the time of submission of the second application. Therefore, nothing much turns around the factum of production of Ext.R-4(a) before the revisional authority and it cannot be said that any false information has been conveyed therein so as to materially effect the decision making process of the revisional authority. There is yet another important aspect of the matter, which is that the factum of the W.P.(C).3237/12 & c.c - : 58 :- death of the employee concerned is not disputed by anybody and everybody proceeds on the premise that the mother of the claimant has died and the very foundation of the claim and its rejection is agreed at least on this point that the mother of the claimant had died. Therefore, this Court is not in a position to accept the above said contention raised by the Corporate Manager. Moreover, it is to see, that such a contention has not been urged either before the Government or in any of the pleadings before this Court. 27. During the course of hearing the counsel for the claimant had submitted that in case this Court is of the view that the claimant is not eligible to be considered for the post of LPSA/UPSA as she did not have the requisite qualification within the time limit, then this Court may direct the Manager to consider the claimant for appointment to the post of Full Time Menial in the school as she had possessed all the requisite qualifications to hold the post within the time limit. This submission of the claimant was also endorsed fully by the learned Senior Government Pleader appearing for the official respondents. 28. Chapter XXIV A and XXIV B of the KER deals with the qualifications of non-teaching staff in aided school. As per Rule 2 of chapter XXIV A and Rule 4 of chapter XXIV B of the KER stipulates W.P.(C).3237/12 & c.c - : 59 :- the qualifications to be insisted for the post of Full Time Menial in aided Schools. It is submitted that the claimant fulfills all the qualifications for being appointed as Full Time Menial in aided school and this aspect is not disputed by the learned Senior Government Pleader appearing for the Official Respondents. 29. The learned Counsel for the Corporate manager has also raised some issues as to the correctness of the income certificate produced by the claimant. Ext.R-2(d) dated 11-04-2007 is the income certificate produced by the claimant along with the counter affidavit filed in W.P.(C) No.7160/2012 at the time of submission of the original claim in April 2007. Ext.P-11(a) dated 23-10-2009 produced in W.P.(C) No.3237/2012 is the Income certificate dated 23-10-2009 produced along with the revised application submitted on 23-10-2009. The Manager would place reliance on Exts.R-4(d) and R-4(i) produced by the Manager along with counter affidavit filed in W.P.(C) No.3237/2012, to raise issues about the correctness of the Income Certificate. Learned Senior Government Pleader submits that Government has not entered into any of these issues as can be seen from a reading of impugned revisional order and the Government has only directed that the petitioner is entitled to be appointed in the post in question if she fulfills the conditions in W.P.(C).3237/12 & c.c - : 60 :- Ext.R-1(a) scheme and that therefore, it may not be proper or necessary for this Court to adjudicate on this issue on which Government has not made any findings. Further the learned Senior Government Pleader would also submit before this Court that there is a clear provision made out as per Clause No.41 in Ext.R-1(a) scheme to deal with such issues arising out of income limits. This Court is of the considered view that the learned Senior Government Pleader is fully correct in submitting about this aspect and therefore, this Court need not enter into those issues at all in the present judicial review proceedings. 30. However, one point requires to be clarified as regards the aspect of income limit. The claimant had initially sought for appointment only to the posts of L.P.S.A. or U.P.S.A. so far. However in view of the findings in this judgment it has been already held that she was not qualified to be appointed to the said post as per the scheme and that consideration at best could be made in respect of other posts like full time menial. It is not much in dispute that the claimant had possessed all the requisite prescribed qualifications to hold the post of full time menial in the aided school, even as on the date of the original application dated 13.4.2007. Therefore, the claimant had submitted the abovesaid W.P.(C).3237/12 & c.c - : 61 :- Ext.R-2(d) income certificate dated 11.4.2007 at the time of the submission of the original claim and aforesaid Ext.P-11(a) income certificate dated 23.10.2009 at the time submission of the so-called second application. In order to avoid future disputes and controversy it is found necessary that it should be clarified as to what is the relevant date to be reckoned for determination of the income limit as per the scheme. The stand of the Government in this aspect of the matter is most important, as though the appointment is to an aided school, the pay master is the Government and the scheme itself has been framed by the Government. During the course of the submissions, the learned Senior Government Pleader appearing for the official respondents submitted that in a case where the claimant has acquired all the prescribed qualifications to hold the post to which appointment is sought, even as on the date of the application, then the income limit is to be determined with reference to that date. However, in a case where the claimant has acquired the qualification not as on the last day, but on a date on or before the last permissible date for submission of the application, then the relevant date for determining the income criteria should be such subsequent date. On this aspect of the matter, this Court is inclined to hold that the W.P.(C).3237/12 & c.c - : 62 :- said submission made by the learned Senior Government Pleader, appears to be fair, just and reasonable and the same is accepted and it is ordered that for the consideration of the case of the petitioner for appointment to the post of full time menial, the relevant date within which the income limit is to be assessed as per the scheme will be the date of the submission of the original claim (viz. 13.4.2007). 31. Sri.Tony George Kannanthanam, learned counsel appearing for the corporate management, has also contended that without a specific finding that the claimant is entitled to the benefits of Rule 51B, neither the Government nor this Court is justified to issue any directions in favour of the claimant. It is further submitted that without a specific prayer made by the claimant before the writ proceedings initiated before this Court that at least alternatively she should be considered for appointment as full time menial, this Court would be totally unjustified to issue any directions in that regard. 32. As regards the first aspect of the matter, it is to be noted that the crucial direction issued by the Government in the impugned revisional order dated 17.11.2011, is as follows: “The Manager is directed to appoint the petitioner in the existing vacancy or arising vacancy, if no vacancy is existing, in the school, only if the applicant satisfies all conditions laid down in G.O (P) No.12/99/G.Edn. dated 24.5.1999.. .... .” (Emphasis supplied) W.P.(C).3237/12 & c.c - : 63 :- 33. The Apex Court in Shreejith's case supra reported in (2012) 7 SCC 248, p.253, at para 11 thereof, has clearly and unequivocally held that it is manifestly clear that the scheme for compassionate appointment as statutorily adopted in the provisions contained in the Kerala Education Rules, permitted not only making of an application, but when read in conjunction with the statutory rules, it entitles the claimant to seek such an appointment, subject to his fulfilling the other requirements stipulated in the scheme. Therefore, but for the finding that the petitioner is qualified to be appointed to the post of L.P.S.A./U.P.S.A. as per the scheme, the abovesaid crucial direction issued by the Government in the impugned revisional order is fully in terms of the substance, form and spirit of the legal principles adumbrated by the Apex Court in para 11 of the said ruling. In the instant case, the fact that the claimant is the daughter of the deceased employee is not in dispute at all. It is also common ground that she was not qualified to hold the post of L.P.S.A./U.P.S.A. as on the last permissible date for submission of the application. It is also an indisputable fact that she had possessed all the qualifications to hold some other posts including the post of full time menial in the aided school, as on the said cut off date. All other issues as regards the matters, as to W.P.(C).3237/12 & c.c - : 64 :- whether or not the claimant fulfills the other conditions in Ext.R-1(a) scheme have been fully and rightly left open by the Government to be decided by the competent authority, who is the manager. Therefore, the Government has not made any conclusive finding that the claimant is fully entitled to the benefits of Rule 51B for compassionate appointment and all what has been directed in the revisional order is that the petitioner is entitled to be appointed to the post for which she is qualified, only if the claimant satisfies all the conditions laid down in Ext.R-1(a) scheme. This direction issued by the Government in the revisional order, as already held herein above, is fully in consonance with the legal principles laid down by the Apex Court in para 11 of Shreejith's case supra. Therefore, the abovesaid contention of the manager is only to be repelled and it is so ordered. 34. As regards the second aspect, that the claimant has not even made an alternative prayer in her Writ Petition that she should at least be considered for appointment to some other posts like full time menial, etc. and that therefore, this Court is absolutely powerless to issue such a direction in a proceedings under Art.226 of the Constitution of India, it is only to be held that a Constitutional Court of Record conferred with the extraordinary plenary powers as W.P.(C).3237/12 & c.c - : 65 :- per Art.226 of the Constitution of India cannot be said to be dis-empowered to modulate the grant of prayer to lesser prayers than what has been sought by the applicant. True that the claimant sought for the Moon and this Court has pointed out that she is not entitled for that claim and that she has to come down to the earth. Therefore, this Court is not in any manner disempowered while exercising the jurisdiction under Art.226 of the Constitution of India to consider the modulation of the reliefs in such a manner that only a relief which is lesser than the larger relief sought by the applicant is granted in writ proceedings, so that justice and fairness are accorded to both sides. That apart, Clause 20 of Ext.R-1(a) scheme inter alia provides that “...... _An applicant under the Compassionate Employment Scheme will be permitted to indicate the order of priority of the posts applied for. To the extent possible this order of priority will be accepted. However, if this is not possible, the applicant will be appointed to any available vacancy in any of the subordinate services_ ”. Therefore, it is not even necessary for the claimant to make any specific request for correcting or amending his/her claim made in the application before the competent authority and it is the duty of the competent authority to even in a case where the claimant cannot be appointed to the post sought for due to any reasons including on the grounds of lack of W.P.(C).3237/12 & c.c - : 66 :- qualifications, etc. so as to consider whether such a claimant could be appointed to vacancies in any other posts even other than those which are now shown in the order of priority of preference in the application. In view of these aspects, the said contention of the corporate management is also overruled. 35. The counsel for the corporate manager has raised a specific contention that so long as the first rejection order has been found to be in order by the Government and so long as the claimant has not submitted a revised application within the original time limit, then it was absolutely illegal and improper on the part of the Government to issue the impugned directions in the revisional order. In this regard it is to be noted that the Apex Court has clearly and unequivocally held in para 38 of Shreejith's case supra that the manager is obliged to point out the deficiencies and defects, if any, in the application, which is submitted within time, to the claimant to enable him to remove the same within a reasonable time and in such a situation, if the defects are not removed by the claimant within the time so granted, then only an adverse inference could be drawn against the person in the default. In the instant case, the original clam was rejected on 16.4.2007 outrightly citing the grounds stated therein. That itself was illegal and improper on W.P.(C).3237/12 & c.c - : 67 :- the part of the manager, going by the ruling of the Apex Court quoted above. The said application was filed within time. The claimant indisputably was the daughter of the deceased employee concerned. True that it suffered from various defects including the fact that she was not qualified to hold the post sought for at the time of the application or even subsequently. But the scheme is not confined for appointment to any one of the posts, which are sought for in the order of priority or preference, but is indeed a flexible scheme which will take in the right to be considered for appointment to any other posts, which are brought within the scheme and for which even a separate plea or request on the part of the claimant is not envisaged in Clause 20 of Ext.R-1(a) scheme. Therefore, the manager was obliged to point out the deficiencies in the original claim to the claimant and instruct her to rectify the same within the time limit or even could have granted time upto the last date of submission of the application in order to enable her to make available the qualification certificate for the post of L.P.S.A./ U.P.S.A. applied for. None of these aspects was done. It is only in a case where the manager has fulfilled his obligation to point out the defects and thereafter to instruct the claimant to rectify the defect within the time limit, that the time limit will start running as against W.P.(C).3237/12 & c.c - : 68 :- the claimant in the matter of removal of defects. As the manager has never fulfilled this crucial obligation on his part, as envisaged in para 38 of the Apex Court ruling, it ill comes from the mouth of the manager to contend that there was inordinate delay or laches on the part of the claimant. 36. The following conclusions are summed up on the general issues; - (i) A claimant for compassionate appointment as per Ext.R- 1(a) scheme should necessarily possess all the prescribed qualifications to hold the posts, for which appointment is sought, at least as on the last permissible date for submission of the application. Even a substitute of the original claimant as envisaged in Clause 26 of Ext.R-1(a) scheme should also necessarily acquire all the prescribed qualifications to hold the post concerned as on the last permissible date of submission of the application, as Clause 26 also mandates that the option to substitute another claimant in the place of the original claimant should also necessarily be made within the same time limit as envisaged in Clause 19 of the G.O. - (ii) It is not obligatory for the claimant to expressly indicate in the claim or application exhaustively as to the order of priority or preference of all the posts and the claimant need only indicate the order of priority of the post and even if it is not possible for the competent authority to grant appointment to the claimant to any of the posts as shown in the order of priority or preference, still the competent authority is obliged to consider whether the claimant could be appointed to any other vacancies in any of the posts, as envisaged in Clause 20 of Ext.R-1(a). W.P.(C).3237/12 & c.c - : 69 :- - (iii) Even if the claimant had not acquired all the prescribed qualifications to hold the posts for which order of priority or preference has been shown in the claim, as on the last date of submission of the application, still the claimant is eligible to be considered for any of the posts other than those shown in the order of priority in view of Clause 20 of the scheme, so long as the claimant had in fact possessed all the prescribed qualifications to hold the posts concerned, as on the last permissible date of submission of application. - (iv) If the claim/application, which is submitted by the claimant within the abovesaid time limit, in substance as conveyed the request for compassionate appointment and provided the information which the competent authority required for considering the request, the very fact that the information was not in a given format could not be a good reason to turn down the request. - (v) Even if the application is found to be defective for any reason, the competent authority, instead of rejecting the same summarily, is obliged to grant an opportunity to the claimant to correct the mistakes by filing proper application in accordance with the scheme. - (vi) The competent authority/manager is not under any obligation under this scheme to go in search of the legal heirs of the deceased employees or to make them aware about their right to seek appointment under the scheme. But at the same time, the competent authority/manager is obliged to point out the deficiencies and defects in the claim, which is filed within the time limit, to the claimant concerned so as to enable him/her to rectify such defects and deficiencies within a reasonable time and only if the defects are not removed, within the time granted, then an adverse inference could be drawn against the person in default. W.P.(C).3237/12 & c.c - : 70 :- 37. The upshot of the above discussion is that this Court is of the considered opinion that the impugned revisional order passed by the Government suffers from one major legal flaw inasmuch as it has proceeded on the premise that the claimant was qualified to hold the post of LPSA/UPSA in terms of the compassionate scheme. (indeed all parties concerned including the corporate manager has proceeded on this premise). Therefore, the said finding made by the Government in the impugned revisional order warrants interdiction in these judicial review proceedings. At the same time, this Court is of the considered opinion that the conclusions of the Government on all other aspects do not suffer from any illegality, impropriety or unreasonableness so as to warrant the invocation of judicial interference under Art.226 of the Constitution. Though the claimant was not qualified to hold the post of LPSA/UPSA within the time limit as per the compassionate scheme, the counsel for the claimant has now submitted that in view of these findings of this Court, this Court may direct the consideration of the claimant for appointment to the post of full time menial in the existing vacancy or in the arising vacancy and that the petitioner's consequential benefits in that regard should also be duly protected by this Court. In the light of these findings, it W.P.(C).3237/12 & c.c - : 71 :- is ordered that the directions issued by the Government in the impugned revisional order that “ _the manager is directed to appoint the petitioner in the existing vacancy or arising vacancy, if no vacancy existing in the school, only if the applicant satisfies all the conditions laid down in G.O(P) No.12/99/G.Edn. dated 24.5.1999_ ” will stand upheld to the extent it is applicable to any posts other than LPSA/UPSA, for which the petitioner had acquired all the qualifications as on 30.5.2009 (prescribed last date of submission of the application). Since the claimant seeks consideration for the post of full time menial as the first preference, the manager will do the needful in that regard and consider the petitioner for the said post in the light of the abovesaid directions issued in the revisional order and in terms of the provisions contained in Ext.R-1(a) scheme. As regards the plea made by the claimant for consequential benefits, it is pointed out by the claimant that the petitioner should be given necessary consequential benefits in case she is found to be eligible for appointment to the post concerned, at least for a period from 3 months from the date of issuance of the impugned revisional order dated 17.11.2011, and in that regard, Sri.V.A.Muhammed, learned counsel for the claimant would limit the plea of the claimant that she would not make any claim for any actual arrears of pay or W.P.(C).3237/12 & c.c - : 72 :- notional pay fixation benefits and that only notional seniority for the purpose of further promotion, subject to actual successful completion of probation in the post to which she is appointed and also for deciding on the issue of retrenchment on abolition of post, etc. and would also seek that the said notional seniority should be reckoned for the limited purpose of reckoning qualifying pensionable service, etc. 38. The learned Senior Government Pleader would urge that this aspect need not be now considered by this Court and that this Court may direct the claimant to make necessary representation in that regard at the appropriate time before the competent authority including the departmental authorities concerned, which should then be considered in accordance with law. Accordingly, it is made clear that the said plea of the petitioner is left open and if the petitioner is found to be eligible and entitled for the appointment and on receipt of orders in that regard, it would be open to the petitioner to seek such benefits before the competent authorities concerned, which should then be considered by them in accordance with law and in the light of the directions in this judgment. All the necessary steps in this regard should be completed by the manager without any further delay, at any rate, within a time limit of 3 W.P.(C).3237/12 & c.c - : 73 :- months from the date of production of a certified copy of this judgment. 39. Before parting with this judgment, it would be only appropriate to observe as noted herein above that there appears to be crucial printing mistake in the wordings of Clause 26 of Ext.R-1(a) scheme as it appears in certain important private publications which would have given rise to certain misunderstanding about the scope and ambit of the said clause in the scheme. The said printing mistake would lead to an erroneous impression as if the right to make an option for introducing a substitute to the original claimant a per Clause 26 is without any time limit and could be made at any time, whereas in the actual text of the Government order, the time limit has been specifically and explicitly mentioned as stated herein above. So also, the aspects on the general issues summed up herein above may also be appropriately brought to the notice of the authorities concerned like the Personnel & Administrative Reforms Department, at whose instance Ext.R-1(a) scheme has been framed and also to the General Education authorities concerned including the departmental authorities like the DPI and other Educational officers concerned. For this purpose the office of the Advocate General will forward a W.P.(C).3237/12 & c.c - : 74 :- certified copy of this judgment to the Chief Secretary to the Government of Kerala, who will then take appropriate action in that regard so as to bring to notice of all concerned about the aforementioned aspects on the general issues stated herein above. ## 40. Accordingly, the following directions are issued: - (i) The direction in the impugned revisional order as per G.O(Rt.)No.5081/ 2000/G.Edn. dated 17.11.2011 to the extent it orders that the claimant is eligible to be considered for the post of L.P.S.A./U.P.S.A. under the compassionate appointment scheme, is illegal and ultra vires. To that extent, the said direction will stand rescinded. - (ii) The direction issued in the above referred impugned revisional order that “ _The Manager is directed to appoint the petitioner in the existing vacancy or arising vacancy, if no vacancy is existing, in the school, only if the applicant satisfies all conditions laid down in G.O(P) No.12/99/ dated 24.5.1999.. .... ._ ” will stand upheld to the extent it is applicable to any posts other than L.P.S.A/U.P.S.A., for which the claimant had acquired all the qualifications as on 30.5.2009. - (iii) As the claimant contends that she had all the requisite qualifications for holding the post of Full Time Menial, even as on the date of submission of the claim in April, 2007, the respondent corporate manager will consider the eligibility of the claimant for appointment to the said post and examine whether she had attained all the requisite qualifications to hold that post at least as on 30.5.2009 (prescribed last date for submission of the application) and examine whether the claimant satisfies all the conditions laid down in G.O(Rt.)No.12/99/P&ARD dated 24.5.1999 and consider the claim of the claimant for appointment to the post of Full Time Menial in terms of the directions issued in the impugned revisional order and in terms of the provisions contained in Ext.R-1(a) scheme. In that regard, it is made clear that the income criteria that is to be reckoned by the manager is as to whether the claimant has satisfied the prescribed income limit criteria as on April 2007, in case the claimant has satisfied all the qualifications to hold the post of Full Time Menial at that time. Necessary steps in this regard should be completed by the corporate manager without much delay, at any rate, within a period of 3 months from the date of production of a certified copy of this judgment. - (iv) The contentions raised by the claimant regarding consequential benefits are left open and it is for the claimant to agitate such claims as mentioned hereinabove, before the appropriate authorities, at the appropriate time. - (v) The Chief Secretary to Government of Kerala will take necessary steps in regard to the matters covered by paras 36 and 39 of this judgment, within a W.P.(C).3237/12 & c.c - : 75 :- reasonable time, at any rate, within a period of 6 months from the date of production of a certified copy of this judgment. With these observations and directions, both the aforecaptioned Writ Petitions (Civil) stand finally disposed of. sdk+/bkn/SKK Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge