K.K. Basheer v. State of Kerala and Warden, Government College Ladies Hostel, Kasaragode

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930** **OP.No. 3049 of 2001(K)** **-----------------------------** **PETITIONER(S):** **----------------------** **K.K.BASHEER A.B.HOUSE, MYLATTY P.O., UDMA, KASARGODE.** **BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR** ## **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE WARDEN, GOVERNMENT COLLEGE LADIES HOSTEL, KASARGODE.** **BY GOVERNMENT PLEADER SRI. M.R. SABU FOR R1** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 3049 of 2001(K)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - COPY OF LEGAL HEIRSHIP CERTIFICATE DATED 8.7.1999.** **EXT.P2 - COPY OF NO OBJECTION CERTIFICATE DATED 1.4.1999.** **EXT.P3 - COPY OF APPLICATION BY THE PETITIONER DATED 31.7.1999. EXT.P4 - COPY OF LETTER GIVEN BY THE 2ND RESPONDENT DATED 12.8.1999. EXT.P5 - COPY OF REPRESENTATION BY THE PETITIONER DATED 21.8.1999. EXT.P6 - COPY OF REPRESENTATION BY THE PETITIONER DATED 20.3.2000. EXT.P7 - COPY OF G.O.(P) NO. 12/99/P&ARD DATED 24.5.1999.** **/TRUE COPY/** **PA TO JUDGE** **rhs** ## **S.SIRI JAGAN, J ================== O.P.No.3049 of 2001** ## **================== Dated this the 10[th] day of November, 2008.** ## **J U D G M E N T** The petitioner's elder brother was a U.D. Clerk in Government College Hostel, Kasaragode. He died while in service on 30.9.1998 leaving four dependents viz; wife, two minor children and the petitioner. At the relevant time for the purpose of Compassionate Employment of dependants of employees dying in harness the Scheme promulgated by the Government by G.O.(P) No.7/95/P&ARD/30/3/1995 was in force. As per that scheme, brother of the deceased, if a dependent was also entitled to be considered for employment. The petitioner filed Ext.P3 application dated 31/7/1999 for employment under the Compassionate Employment Scheme. However, unfortunately for the petitioner, in the meanwhile, the Government issued a revised scheme for compassionate employment by G.O.(P) No.12/1999/P&ARD dated 24/5/1999 as per which the brother of the deceased was excluded as a dependent for the purpose of eligibility for employment under the Compassionate Employment Scheme. Ext.P7 is the new **O.P.No.3049 of 2001** - 2 - scheme which came into force before the petitioner submitted Ext.P3 application. Clause 3 of the said scheme read as follows: “3. Applications received on or after the date of issue of this order shall be disposed of in accordance with these orders. Pending applications as on the date of this order shall be dealt with as per the earlier orders.” Since as per Ext.P7 scheme the petitioner's application which was filed after the commencement of the scheme is to be disposed of in accordance with Ext.P7, by Ext.P4 communication, the warden of the Government College Ladies Hostel, Kasaragode, informed the petitioner that since as per Government order dated 24/5/1999, the petitioner is not entitled to be considered for compassionate employment, his application cannot be considered. Since Exts.P5 and P6 representations filed by the petitioner in this regard did not evoke any response, the petitioner filed this original petition seeking the following reliefs: “(i) to issue a writ of certiorari or such other appropriate direction quashing Clause 3 of Ext.P-7 Government Order to the effect “applications received on or after the date of issue of this order shall be disposed of in accordance with these orders”. (ii) to issue a writ of mandamus or order or direction to 2[nd] respondent to accept Ext.P-3 application and forward the same to appropriate authority; - 3 - **O.P.No.3049 of 2001** (iii) to issue a writ of mandamus or order or direction to the 1[st] Respondent to provide employment assistance to the Petitioner under the dying in harness scheme based on the Rules in force as on 30-9-1998;” 2. The petitioner's contention is that the claim for compassionate employment has to be decided on the basis of the orders prevailing on the date of death and not on the date of application. According to him as is clear from the Division Bench decision of this Court in **Deepak v. Secretary, General Education Department 2002(3) KLT** 288, the object of the scheme is to enable the family in distress on account of the death of its bread winner, to tide over the financial crisis which they face at the time of death of the sole bread winner. Therefore the claim for compassionate employment should also be considered applying the scheme obtaining as on the date of death and not on the date of application is the petitioner's contention. He also points out that as per the scheme in force at the time of death, the brother if dependant on the deceased is also, eligible for claiming employment and there was also no time limit prescribed for preferring application under the that scheme. Therefore, according to the petitioner clause 3 of Ext.P7 is liable to be quashed declared as illegal. **O.P.No.3049 of 2001** - 4 - 3. In answer to the contentions of the petitioner, with the help of a counter affidavit, the Government Pleader would submit that in so far as the petitioner has no vested right for employment except in accordance with the scheme framed by the Government, the petitioner can claim only in accordance with the scheme as on the date of application and not otherwise. He would submit that as is evident from the opening paragraph of Ext.P7, it is to implement the directions of the Supreme Court regarding regulation the procedure for compassionate employment that Ext.P7 has been issued. Therefore there is nothing wrong in rejecting the petitioner's application based on the scheme in force as on the date of application contends the learned Government Pleader. He further points out that, still the minor children of the deceased are eligible for applying for compassionate employment after they attain majority, in accordance with the present scheme. He submits that the object of the scheme is help to the family of the deceased in distress on account of the death and not to give employment to one person. According to the learned Government Pleader there is no guarantee that the petitioner would look after the deceased's - 5 - **O.P.No.3049 of 2001** widow and children, after he acquires his own family and therefore the object of the scheme itself would be defeated if the contentions of the petitioner are accepted. 4. I have considered the rival contentions in detail. 5. At the outset I must note that compassionate employment is not a right conferred on anybody. In fact it runs counter to the rights of many others who are also entitled to be considered for employment in the vacancy to which appointment is to be made. The Supreme Court in a decision of **Director of Education (Secondary) v. Pushpendara Kumar, 1998 (5)** **SCC 192** highlighted the object of the compassionate employment as follows: “The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to made both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be - 6 - **O.P.No.3049 of 2001** taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee”. Therefore essentially a scheme is an encroachment into the right of very many others to be considered for appointment to that vacancy. That being so, the petitioner cannot as of right claim employment under the Compassionate Employment Scheme except in accordance with the scheme in force at the relevant time. The petitioner cannot say that the scheme should be interpreted in such a way as to favour the petitioner, when the scheme itself is clear otherwise. For that reason, the petitioner cannot challenge the scheme. He can seek employment only in accordance with the terms of the scheme itself in force from time to time. Unfortunately for the petitioner, he delayed submission of application, which itself would point to the fact that the family was not in need of immediate succour, which is the object of the scheme. When the new scheme which came into force before the submission of application by the petitioner provides that applications received on or after the date of issue of that order shall be disposed of in accordance with those orders, the **O.P.No.3049 of 2001** - 7 - petitioner cannot turn around and challenge that scheme saying that his application should be considered in accordance with the earlier scheme. The petitioner cannot also have any vested right to challenge the new scheme since the scheme itself is a concession and such concession can be only in accordance with the terms stipulated by the Government from time to time. Of course, the learned counsel for the petitioner relies on paragraph 9 of the judgment of this court in W.A. 1313/03 which reads thus: “9. Of course, as contended by the counsel for the appellant, employment assistance is not a right. But it gives a legitimate expectation to the family based on the policy professed by the employer. Necessarily, when the policy and guidelines are formulated in black and white by the appellant bank, at the relevant point of time, to provide employment assistance to the dependents of the deceased employee, necessarily, that creates a corresponding right in the persons, who are eligible to seek such employment assistance in terms of such schemes. This was the way of approach that the learned single Judge had adopted while allowing the original petition.” I am of opinion that the said observation does not in any way alter the legal position as explained by me above. I also find considerable force in the contentions of the learned Government Pleader to the effect that the deceased has two minor children who are entitled to claim compassionate employment in **O.P.No.3049 of 2001** - 8 - preference to the petitioner even according to the earlier scheme. Their right cannot be relinquished by their mother who only has relinquished her claim. They can still apply as per the present scheme. I am also in accord with the contention in the learned Government Pleader that there is no guarantee that the petitioner would look after the widow and the two children of the deceased for ever to come, since he is bound to have his own family in which event he will not be able to support the family of the deceased also. The object of the scheme is to provide succour to the family of the deceased employee. That is also another reason to hold against the petitioner. For all the above reasons, I do not find any merit in the original petition and accordingly, the same is dismissed. **S.SIRI JAGAN, JUDGE** rhs