In the High Court of Kerala at Ernakulam - WP(C) Nos. 20794/2019 & 2455/2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** # **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 WP(C) NO. 20794 OF 2019** ## **PETITIONER:** **THE MANAGER, SANSKRIT HIGH SCHOOL, VATTOLI, VATTOLI P.O., KOZHIKODE DISTRICT.** **BY ADV R.K.MURALEEDHARAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **2 K.K.BIJOSH, EIGHTS COTTAGE, CHERUPARAMBA P.O., THUVAKKUNNU VIA, KANNUR DISTRICT-670 693.** **BY ADVS.** **SRI.ELVIN PETER P.J. SRI.K.R.GANESH** ## **SRI.V.VENUGOPAL -GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2021, ALONG WITH WP(C).2455/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 20794/19 & 2455/21 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 WP(C) NO. 2455 OF 2021** ## **PETITIONERS:** - **1 JASIL P.M, AGED 27 YEARS S/O. DAMODARAN, FTCM, SANSKRIT HIGH SCHOOL, VATTOLI, VADAKARA, KOZHIKODE DISTRICT.** - **2 SHIJIL O.P., AGED 29 YEARS D/O. RAVEENDRAN, FTCM, SANSKRIT HIGH SCHOOL, VATTOLI, VADAKARA, KOZHIKODE DISTRICT.** - **3 BEETHA E.P., AGED 39 YEARS D/O. DAMODARAN, FTCM, SANSKRIT HIGH SCHOOL, VATTOLI, VADAKARA, KOZHIKODE DISTRICT.** ## **BY ADV R.K.MURALEEDHARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695014.** - **3 DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE, KOZHIKODE DISTRICT-673001.** - **4 DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT-673101.** - **5 THE MANAGER, SANSKRIT HIGH SCHOOL, VATTOLI,** WPC 20794/19 & 2455/21 3 ## **VADAKARA, KOZHIKODE DISTRICT-673510.** ## **BY ADV. SRI.V.VENUGOPAL - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2021, ALONG WITH WP(C).20794/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 20794/19 & 2455/21 4 ## **JUDGMENT** These writ petitions require to be heard together because the factual assertions made therein are entwined, while the reliefs sought for are interdependent. 2. WP(C)No.20794/2019 has been filed by the Manager of the ‘Sanskrit High School’, Vattoli, impugning Ext.P5 order of the Government, through which the delay in submission of the proposal for appointment of the 2nd respondent, namely Sri.K.K.Bijosh, under the ‘Dying-in-harness’ scheme has been condoned. The petitioner says that Ext.P5 has been issued by the Government without any authority and even without giving him an opportunity of being heard. 3. It transpires that, in the meanwhile, the Manager had made certain appointments to the posts of Full Time Contingent Menial (FTCM), but their appointments have been now refused approval by the WPC 20794/19 & 2455/21 5 competent educational Authority saying that unless approval is granted to Sri.K.K.Bijosh, they cannot be granted the said benefit. They have, therefore, approached this Court by filing W.P. (C)No.2455/2021. 4. The afore narrative would clearly show that the controversy in this case, in fact, revolves around the Government Order impugned in WP(C)No.20794/2019 and that depending on the view of this Court on it alone can the petitioners in WP(C)No.2455/2021 hope to get any relief. I, therefore, take WP(C)No.20794/2019 as the lead case as far as this judgment is concerned. 5. The specific assertions of the Manager against Ext.P5 is that the Government obtains no competence to issue such an order, particularly when the delay sought to be condoned is over 14 years; and further that, even if any such competence was available to them, such an order could not have been issued without affording him WPC 20794/19 & 2455/21 6 an opportunity of being heard because it is he who is vitally interested in the affairs of the school and the appointments to be made therein. 6. Sri.R.K.Muralidharan – learned counsel for the petitioner vehemently submitted that, at no point of time before Ext.P5 had been issued, was his client ever notified of such a proceeding and that it is Sri.K.K.Bijosh who had approached the Government directly seeking such a relief. He submitted that as per Ext.P2 order, which is applicable to appointments under the Compassionate Appointment Scheme, a three year time has been prescribed for preferring an application for minors, after attaining the age of majority. He submitted that since Sri.K.K.Bijosh preferred his application after 14 years, there is no provision in Ext.P2 order empowering the Government to condone the delay, as has been done; and he relied on the judgment of the Honourable Supreme Court in **Shreejith v. Deputy Director and Others** [2012(3) WPC 20794/19 & 2455/21 7 KLT 214], asserting that it has been declared therein that an application shall be filed within the time stipulated regardless whether there was a vacancy already available or to be available in future. He, therefore, prayed that Ext.P5 be set aside. 7. In response, Sri.Elvin Peter P.J. – learned counsel for Sri.K.K.Bijosh, submitted that Ext.P5 order is irreproachable and cannot be challenged by the Manager because it has already been declared by this Court in **S.N.G.S. High** **School v. Reji Sagar** [2008(1) KLT 1026], that the principles laid down by various Courts relating to the appointments under ‘Dying-in-Harness’ scheme in Government services cannot be mechanically imported or applied to appointments under Rule 51B Chapter XIVA of the Kerala Education Rules (KER for short) in an aided school. He pointed out that this Court had, thereafter, held that, ‘ _the_ _principles laid down by the Apex Court concerning_ WPC 20794/19 & 2455/21 8 _appointments to Public Services under the dyingin-harness scheme, like grant of appointment, immediately after the death of the bread-winner to bring immediate succor to the family etc., are not_ _applicable and unworkable, as far as aided schools are concerned’_ . 8. In reply, Sri.R.K.Muralidharan submitted that the principles enunciated in **S.N.G.S. High School** (supra) has been held incorrect by the Honourable Supreme Court in **Shreejith v. Deputy Director (Education), Kerala** [2012(3) KLT 214]. He, therefore, argued that Sri.K.K.Bijosh cannot take shelter under the said judgment. 9. Whatever be the dialectical contentions of the parties as afore, the fact remains that when an order like Ext.P5 was issued, certainly the Manager ought to have been heard by the Government. Pertinently, what has been done by it in this case is to have accepted the application of Sri.K.K.Bijosh and then to condoned the delay WPC 20794/19 & 2455/21 9 in preferring it, even without notifying the Manager. To make it worse, it then issued Ext.P4(a) to the Manager to appoint Sri.K.K.Bijosh. This certainly cannot be found to be correct and am, therefore, certain in my mind that the said application will be require to be reconsidered by the Government, after hearing both sides. 10. The afore having been so concluded, as far as WP(C)No.2455/2021 is concerned, certainly, the petitioners become entitled to relief, because Ext.P4(a) is dated much after their appointment. 11. I record that learned counsel for both sides agree to this and on such basis, I proceed to dispose of these writ petitions in the following manner: a) WP(C)No.20794/2019 is allowed and Exts.P4 (a) and P5 are set aside; with a consequential direction to the Government to reconsider the request of the 2nd respondent-Sri.K.K.Bijosh, after WPC 20794/19 & 2455/21 10 affording him, as also the petitioner, an opportunity of being heard - either physically or through video-calling - thus culminating in an appropriate order thereon, as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment. Needless to say, all appointments made in the school subsequent to Ext.P5 shall not be afforded approval by the competent Educational Authorities, until the Government takes a decision as above. b) WP(C)No.2455/2021 is allowed and Exts.P2, P3, P6, P7, P9 and P10 are set aside; with a direction to the 4th respondent to approve the appointments of the petitioners after verifying that they have been granted the same prior to 28.05.2019, being the date of Ext.P4(a) order in WP(C)No.20794/2019, subject to other statutory conditions being satisfied. This shall be done by the 4th respondent within a period of two months from the date of WPC 20794/19 & 2455/21 11 receipt of a copy of this judgment. **Sd/-** **RR** **DEVAN RAMACHANDRAN JUDGE** WPC 20794/19 & 2455/21 12 ## APPENDIX OF WP(C) 2455/2021 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 12.6.2018. EXHIBIT P2 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 1.11.2019. EXHIBIT P3 A TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 15.9.2020. EXHIBIT P4 A TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 20.11.2020. EXHIBIT P5 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 12.6.2018. EXHIBIT P6 A TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 9.7.2019. EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 29.9.2020. EXHIBIT P8 A TRUE COPY OF THE APPOINTMENT ORDER DATED 12.6.2018. EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 1.11.2019. EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 26.3.2020 OF THE 3RD RESPONDENT. EXHIBIT P11 A TRUE COPY OF THE APPEAL DATED 18.8.2020 PENDING BEFORE THE 2ND RESPONDENT. EXHIBIT P12 A TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 28.5.2019. EXHIBIT P13 A TRUE COPY OF THE INTERIM ORDER IN WPC 20794/19 & 2455/21 13 WP(C) NO.20794/2019 DATED 30.7.2019. WPC 20794/19 & 2455/21 14 ## APPENDIX OF WP(C) 20794/2019 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 04.07.2016. EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF GO(P)NO.12/1999/P & ARD DATED 24.05.1999. EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE PETITIONER DATED 28.07.2016. EXHIBIT P4 TRUE COPY OF THE REQUEST DATED 28.05.2019 BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 28.05.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE ERRATUM NOTIFICATION DATED 28.06.2019. RESPONDENT EXHIBITS EXHIBIT R2(a) TRUE PHOTOCOPY OF THE LETTER DATED 09.08.2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER MANAGER EXHIBIT R2(B) TRUE COPY OF THE APPLICATION SUBMITTED BY THIS RESPONDENT BEFORE THE PETITIONER IN THE PRESCRIBED FORM ALONG WITH REPRESENTATION DATED 04.07.2016. EXHIBIT R2(C) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THIS RESPONDENT ON 24.05.2021 BEFORE THE PETITIONER MANAGER.