Jitheesh P. v. State of Kerala and Kerala State Construction Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936** ## **WP(C).NO. 31411 OF 2010 (B)** **---------------------------------------** **PETITIONER:** **-------------------** **JITHEESH .P., AGED 28 YEARS, S/O.LATE P.PARAMESWARAN, PONNUMCHATH HOUSE, NETTISSERY, MANNUTHY, THRISSUR.** **BY ADV. SRI.P.K.SAJEEV.** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **2. KERALA STATE CONSTRUCTION CORPORATION LTD., REGISTERED OFFICE, P.B.NO.404, THYCAUD, THIRUVANANTHAPURAM - 695 014, REPRESENTED BY ITS MANAGING DIRECTOR.** **3. KERALA STATE CONSTRUCTION CORPORATION LTD., ADMINISTRATIVE OFFICE III FLOOR, CARMEL CENTRE, BANERJI ROAD, COCHIN - 682 018, REPRESENTED BY ITS SECRETARY.** **R1 BY SR. GOVT. PLEADER SRI. M.A. FAYAZ, R2 & R3 BY ADV. SRI.M.V.THAMBAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.31411/2010 - B:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P.1: TRUE COPY OF THE ORDER NO.CC/R-12/89/DTD. 13/10/1999 IN THE PROCEEDINGS OF THE 2ND RESPONDENT.** - **EXT.P.2: TRUE COPY OF THE PAY FIXATION ORDER DTD. 29/10/99.** - **EXT.P.3: TRUE COPY OF THE PAY SLIP FOR MONTH OF MARCH 2004.** - **EXT.P.4: TRUE COPY OF THE APPLICATION DTD. 26/05/2004 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT CORPORATION.** - **EXT.P.5: TRUE COPY OF THE LETTER DTD. 19/11/2004 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P.6: TRUE COPY OF THE LETTER DTD. 27/05/2005 ISSUED BY P.V. JOSEPH, PRIVATE SECRETARY TO SPEAKER, KERALA LEGISLATIVE ASSEMBLY.** - **EXT.P.7: TRUE COPY OF THE LETTER DTD. 13/06/2005 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P.8: TRUE COPY OF THE LETTER DTD. 06/07/2005 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P.9: TRUE COPY OF THE LETTER DTD. 04/10/2005 ISSUED BY THE SECRETARY, CHIEF MINISTER'S PUBLIC GRIEVANCE REDRESSAL CELL, THIRUVANANTHAPURAM.** - **EXT.P.10: TRUE COPY OF THE REPRESENTATION DTD. 07/6/2006 GIVEN BY PETITIONER TO THE CHIEF MINISTER.** - **EXT.P.11: TRUE COPY OF THE REPRESENTATION DTD. 07/06/2006 GIVEN BY PETITIONER TO THE MINISTER OF P.W.D.** - **EXT.P.12: TRUE COPY OF THE REPRESENTATION DTD. 17/10/2007 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT.P.13: TRUE COPY OF THE LETTER DTD. 15/07/2008 ISSUED BY THE ADDITIONAL SECRETARY, CHIEF MINISTER'S PUBLIC GRIEVANCE CELL, THIRUVANANTHAPURAM.** - **EXT.P.14: TRUE COPY OF THE REPORT DTD. 04/04/2008 GIVEN BY THE 2ND RESPONDENT.** - **EXT.P.15: TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER DTD. 15/12/2009 TO THE CHIEF MINISTER.** - **EXT.P.16: TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER DTD. 15/12/2009 TO THE MINISTER, PUBLIC WORKS DEPARTMENT.** ## **W.P.(C).NO.31411/2010 - B:** **EXT.P.17: TRUE COPY OF THE INFORMATION NO.CC/GM/INFOR.ACT 05/17.11.2009/3851/GIVEN BY THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT TO ONE VISWANATHAN.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN,J. -------------------------------------------------** ## **W.P.(C)No.31411 of 2010 ------------------------------------------------Dated this the 4[th] day of July, 2014** ## **JUDGMENT** The petitioner's father late P.Parameswaran was a provisional employee in the service of the Kerala State Construction Corporation Limited (hereinafter referred to as the Corporation for short). He was initially employed on daily wages and later he was placed in a time scale of pay. While he was working as Mechanical Operator on a provisional basis but in a time scale of pay, he passed away on 4.5.2004. The petitioner who has passed the S.S.L.C.Examination and possessed a Diploma in Electrical Trade, thereupon submitted Ext.P4 representation dated 26.5.2004 before the Managing Director of the Corporation requesting for employment assistance under the Compassionate Employment Scheme. The Managing Director of the Corporation passed an order on 10.11.2004 rejecting the said request on the ground that the Corporation is in severe financial crisis. The said decision was communicated to the petitioner by the Secretary of the Corporation by Ext.P5 letter dated 19.11.2004. 2. The petitioner did not challenge Ext.P5 letter or the order passed by the Managing Director of the Corporation rejecting his request for employment assistance. Instead, he submitted a W.P.(C)No.31411 of 2010 -:2:- representation before the Hon'ble Speaker who in turn forwarded it to the Secretary to Government, Public Works Department and informed the petitioner of the same by Ext.P6 letter dated 27.5.2005. The petitioner's mother had, more or less simultaneously, submitted a representation dated 6.12.2004 before the Hon'ble Minister for Public Works. On that representation the Hon'ble Minister for Public Works directed the Corporation to give employment assistance to the petitioner as and when the financial position of the Corporation improves. The Secretary to Government, Public Works Department communicated the said direction issued by the Government to the petitioner's mother in Ext.P7 letter dated 13.6.2005. A copy of Ext.P7 letter was communicated to the Corporation as well. The Secretary of the Corporation thereupon sent Ext.P8 letter dated 6.7.2005 to the Secretary to Government, Public Works Department informing him that as and when the financial position of the Corporation improves, the petitioner's application for employment assistance will be considered. 3. The petitioner did not move this Court even thereafter. Instead, he moved the Chief Minister by submitting a representation dated 8.7.2005. Upon receipt of the said representation the views of the Public Works Department were sought and the petitioner was W.P.(C)No.31411 of 2010 -:3:- informed that the Corporation has been requested to consider his request when the financial position improves. The petitioner did not even thereafter move this Court. Instead, he submitted Ext.P10 representation dated 7.6.2006 before the Hon'ble Chief Minister, Ext.P11 representation dated 7.6.2006 before the Hon'ble Minister for Public Works, Ext.P12 representation dated 17.10.2007 before the Managing Director of the Corporation and still later a representation dated 22.3.2008 before the Chief Minister's Public Grievance Redressal Cell attached to the Chief Minister's office. On the said representation the Government in its letter dated 22.3.2008 issued a direction to the Corporation to forward a report to the Secretary to Government, Chief Minister's Public Grievance Redressal Cell. The Corporation thereupon gave Ext.P14 reply dated 4.4.2008 informing the Secretary to Government, that the Corporation is facing acute financial crisis, that there are ten similar cases of persons seeking employment under the Dying in Harness Scheme, but none of them have been given employment assistance on account of financial crisis. The Corporation also informed the Secretary to Government that at present it is not in a position to consider the petitioner's application. The petitioner did not even thereafter move this Court. Instead, he moved the Hon'ble W.P.(C)No.31411 of 2010 -:4:- Chief Minister by submitting Ext.P15 representation dated 15.12.2009. The instant writ petition was thereafter filed on 12.10.2010 seeking the following relief:- - _i) To issue a writ, order or direction in the nature of a writ of mandamus commanding the 2[nd] respondent Corporation to give compassionate appointment to the petitioner in the Corporation under the Dying in Harness Scheme._ 4. The main contention raised in the instant writ petition is that the Corporation had appointed 5 persons to the category of Engineering Assistant Grade I, 10 persons to the category of Engineering Assistant Grade II and 5 persons to the category Engineering Assistant Grade III and therefore, the ground put forward by the Corporation to reject the petitioner's application for compassionate appointment is nothing but a ruse to deny employment to him. The petitioner has also averred that vacancies existed in the second respondent Corporation and without granting him employment assistance, steps are being taken to fill up the vacancies. Though the respondents took notice when the writ petition was admitted on 13.10.2010, the respondents have not so far filed a counter affidavit. 5. I heard Sri.P.K.Sajeev, learned counsel appearing for the petitioner and Sri.M.V.Thamban, learned standing counsel appearing W.P.(C)No.31411 of 2010 -:5:- for respondents 2 and 3. Sri.P.K.Sajeev, learned counsel appearing for the petitioner contended that the Corporation denied employment assistance to the petitioner on the ground that it is facing acute financial crisis, but at the same time 20 persons have been appointed to the category of Engineering Assistant Grade I, Engineering Assistant Grade II and Engineering Assistant Grade III and therefore, it is evident that the ground put forward to deny employment assistance to the petitioner is nothing but a ruse to deny employment to him. Relying on a document not produced so far, learned counsel appearing for the petitioner contended that four persons had been given employment assistance in the year 2011, 2012 and 2013 and all of them are dependents of casual workers and therefore, the said fact also establishes the petitioner's contention that he was unjustly denied employment assistance. 6. Per contra, Sri.M.V.Thamban, learned standing counsel appearing for the Corporation contended that the petitioner does not possess the qualifications prescribed for appointment as Engineering Assistant, that he could not therefore have been appointed as Engineering Assistant, that merely because he had applied for employment assistance and that request was rejected on the ground W.P.(C)No.31411 of 2010 -:6:- that the Corporation was not in a position to give him appointment on account of financial crisis, it cannot be said that the Corporation did not have the resources to run the establishment and to carry on its business activities. Learned standing counsel appearing for the Corporation also contended that the petitioner's father passed away on 4.5.2004, that his application was first rejected on 10.11.2004, that the said order has attained finality, that the instant writ petition was filed only six years thereafter and therefore, on the ground of delay and latches the instant writ petition is liable to be dismissed. Learned standing counsel also submitted that employment assistance under the Dying in Harness Scheme is not a method of recruitment, but a social welfare measure intended to provide immediate succor to the members of the bereaved family and that the petitioner cannot, nearly ten years after his father's death, seek or be granted employment assistance under the Compassionate Employment Scheme. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The petitioner's father passed away on 4.5.2004. His first application for employment assistance was declined on the ground that the Corporation is not in a position to absorb him in service on account of financial crisis. The W.P.(C)No.31411 of 2010 -:7:- said order passed on 10.11.2004 by the Managing Director of the Corporation was communicated to the petitioner by Ext.P5 letter dated 19.11.2004. The petitioner did not, for reasons best known to him, challenge that order. Instead, he repeatedly represented to the Government and the Managing Director of the Corporation. The reply he received was that as and when the financial position improves, his application will be considered. Though during the course of arguments today learned counsel appearing for the petitioner submitted that four persons had been given employment assistance in the year 2011, 2012 and 2013, in the absence of any factual foundation in the pleadings or proof in that regard, I am not persuaded to act on the said submission. From the pleadings and the materials on record I am of the considered opinion that the claim made by the petitioner for compassionate appointment is belated. The petitioner, who did not challenge the order passed by the Managing Director of the Corporation on 10.11.2004 rejecting his first ever request for compassionate appointment, cannot seek compassionate appointment at this distance of time. As held by the Apex Court in _**Sreejith v. Deputy Director (Education) Kerala,**_ 2012 (3) KLT 214, the purpose of giving compassionate appointment is to provide immediate W.P.(C)No.31411 of 2010 -:8:- succor to the members of the bereaved family. Compassionate employment assistance is not a method of recruitment. It is an exception to the rule. I am therefore, of the considered opinion that no relief can be granted to the petitioner at this distance of time. For the reasons stated above I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. **P.N.RAVINDRAN, JUDGE** ## **ahg.** ## **P.N.RAVINDRAN,J.** ## **-----------------------------------------W.P(C)No.31411 of 2010 ------------------------------------------** ## **JUDGMENT** **4[th] July, 2014**