High Court of KeralaDivision Bench2010-03-19Writ Appeals dismissed; the court affirmed the ...

Manager, K.V. Sanskrit Higher Secondary School, Muthukulam v. District Educational Officer, Alappuzha & Others

Case / Petition Number:WA.No. 1775/2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Balakrishnan Nair
P. N. Ravindran
Judgment Date: 2010-03-19
Court Decision / Holding: The Division Bench affirms the Single Judge’s judgment to the extent of upholding Exts. P4–P8 and directing the appellant to appoint the 5th respondent as Full-time Menial forthwith. It modifies the compensation aspect by vacating the Rs. 2 lakhs awarded, substituting with Rs. 10,000 as costs in favor of the 5th respondent. The appeals (WA Nos. 1775/2007 and 1771/2007) are dismissed, and WA 1771/2007 is also dismissed. The court clarifies that the 5th respondent is entitled to relief under the dying-in-harness scheme, within the applicable rules, while the compensation for violation of Article 21 is not sustained as argued.
Final Disposition: Writ Appeals dismissed; the court affirmed the order directing appointment of the 5th respondent as Full-time Menial, vacated the Rs. 2 lakh compensation, and fixed costs of Rs. 10,000 in favor of the 5th respondent; WA Nos. 1771/2007 and 1775/2007 disposed of accordingly.

Parties to the Case

Appellants / Petitioners

MANAGER, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM

Respondents

DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA
DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA
DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM
GOVT. OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
R.RAJESH, THEIVEEPIL HOUSE, THAMALAKKAL PO, HARIPPAD, ALAPPUZHA
SREEKUMAR, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM

Legal Representation & Advocates

Counsels for Petitioners

• Adv. George Poonthottam

Counsels for Respondents

• GOVT. PLEADER SMT.T.B.REMANI (for R1-R4)
• Adv. M.V.MATHEW (for R5)

Case Synopsis & Summary

This Kerala High Court writ appeal, heard by a division bench, concerns the right of a dependent (the 5th respondent) to employment under the dying-in-harness scheme in an aided school. The appellant-manager challenged Exts. P1, P2 and P4–P8, which directed appointment of the 5th respondent (the son of a deceased part-time employee) under the dying-in-harness scheme and related proceedings. The facts show that the deceased, a Part-time Menial, died in 1995; the 5th respondent, then a minor, applied for employment; government and district authorities repeatedly refused on the basis that the scheme coverage did not include such posts; by Ext. P4 (9.1.2001) the Government directed appointment, a review petition was dismissed (Ext. P5), and Exts. P6–P8 issued in furtherance of that directive. The manager later filled a different vacancy; the 5th respondent sought to enforce the Ext. P4 order through O.P. proceedings, and the writ petition challenged these orders before the High Court. The Single Judge dismissed the manager’s challenge, and allowed the 5th respondent’s challenge. The Division Bench, confirming the validity of Exts. P4–P8, held that the 5th respondent is entitled to appointment as Full-time Menial and that delay in challenging Ext. P4 does not negate the relief; However, the court set aside the Rs. 2 lakh compensation but allowed costs of Rs. 10,000 to be paid. The WA Nos. 1771 and 1775/07 are accordingly disposed of, with WA 1771/07 also dismissed.

Provisions of Law Cited

G.O.(Ms) No.15/97/G.Edn, dated 16.1.1997

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant-manager contends that the 5th respondent did not submit his application in the prescribed format and, more importantly, that his claim cannot be sustained after the long delay since the death of the deceased employee in 1995. He argues that the dying-in-harness scheme for aided schools is statutory and requires strict compliance with Kerala Education Rules (K.E.R.) and GO provisions; the 3-year limit for minors to apply after majority (attaining majority on 20.05.2000) under the Government order should bar the claim; the challenge to Exts.P4–P8, being issued after a delay, is valid and should fail. He relies on earlier decisions (Unnikrishnan v. Manager, CAHS; Saraswathi Vilasam U.P.School v. Priyesh Aramana; SN.G.S. High School v. Reji Sagar) to argue that the scheme has narrow coverage and that delay defeats relief.

Contentions of Respondents

The respondents argue that the 5th respondent is entitled to compassionate appointment under the dying-in-harness scheme as a dependent of the deceased employee. They rely on the GO and K.E.R. provisions (Chapter XXIVB, XXIVA; Chapter III, Rule 7) and the 9.1.2001 Ext.P4 order directing appointment, supported by Ext.P5–P8; they contend that the minor could apply within three years of attaining majority under the relevant Government order, and that the delay in enforcement cannot nullify the Government's directive. They assert that the manager’s non-implementation has adverse effects on the dependent’s right to life under Article 21 and that the Court may remedy violations within the statutory framework; they challenge claims that the scheme unjustly disadvantages the manager.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Unnikrishnan v. Manager, CAHS	2010(1) KLT 354	Positive	Cited to support the argument that the minor claimant's application and the court's approach align with a Division Bench decision; used to reject the appellant's prescribed-format contention.
S.N.G.S. High School v. Reji Sagar	2008(1) KLT 1026	Positive	Cited to support the three-year window within which a minor claimant can apply after attaining majority.
Saraswathi Vilasam U.P.School v. Priyesh Aramana	2007(3) KLT 648	Positive	Cited to support the view that K.E.R. XXIVB/XXIVA provisions apply in this context.
O.P.No.22656/2000	OP 22656/2000	Mentioned Only	Referenced as background where the Court directed consideration of the respondent’s representation, but not analyzed as a binding precedent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WA.No. 1775 of 2007 --------------------AGAINST THE JUDGEMENT IN WPC.32375/2005 Dated 14/06/2007 .................... APPELLANT: PETITIONER ------------------------ MANAGER, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): RESPONDENTS -------------------------- 1. DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. 2. DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 4. GOVT. OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. R.RAJESH, THEIVEEPIL HOUSE, THAMALAKKAL PO, HARIPPAD, ALAPPUZHA. 6. SREEKUMAR, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM. BY GOVT. PLEADER SMT.T.B.REMANI FOR R 1 TO R4 BY ADV.SRI.M.V.MATHEW FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2010, ALONG WITH WA NO. 1771 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** **------------------------------** W.A.Nos.1771 & 1775/2007 **------------------------------** W.A.Nos.1771 & 1775/2007 Dated this, the 19[th] day of March, 2010 ## **JUDGMENT** ## **Balakrishnan Nair, J.** ## W.A.No.1775/2007: The appellant was the writ petitioner. He is the Manager of K.V.Sanskrit Higher Secondary School, Muthukulam. The dispute raised in the Writ Petition was concerning the right of the 5[th] respondent to get employment under the dying-in-harness scheme. 2. The brief facts of the case are the following: Sri.A.Ramakrishnan was a Part-time Menial working in the appellant's school since 8.6.1966. He died in harness on 4.3.1995. At the time of his death, the 5[th] respondent was a minor. He attained majority only on 20.5.2000. Even before attaining majority, he moved the District Educational Officer (DEO), Alappuzha, by filing a representation dated 18.9.1999, praying for the said officer's help to get employment under the dying-in-harness scheme in the school of the appellant. The D.E.O replied by Ext.P1 communication dated 25.10.1999, stating that Part-time Menial is not covered by G.O.(Ms) No.15/97/G. Edn dated 16.1.1997, governing W.A.Nos.1771 & 1775/07 - 2 - appointment under the dying-in-harness scheme. Thereafter, the 5[th] respondent moved the Director of Public Instruction (DPI) by filing a petition on 27.12.1999. The D.P.I., by Ext.P2 communication, informed him that he is not eligible to get employment under the aforementioned scheme. Challenging Ext.P2, the 5[th] respondent filed a revision before the Government. This Court, by judgment in O.P.No.22656/2000 filed by the said respondent, directed the Government to consider his representation. The Government, after hearing both sides, issued Ext.P4 communication dated 9.1.2001, upholding the claim of the 5[th] respondent. The Manager was directed to appoint the said respondent under the compassionate employment scheme in the school without delay. The Manager filed a petition dated 24.1.2001, requesting the Government to review Ext.P4. That review petition was dismissed by the Government by Ext,.P5 communication. When Ext.P4 order was not implemented, the 5[th] respondent filed O.P.No.18342/2001, praying for a direction to the Manager to implement Ext.P4. In the meantime, on 31.9.1999 a vacancy of Full-time Menial arose in the school. The appellant-Manager kept it vacant and finally he filled that vacancy by appointing the 6[th] respondent on 10.1.2005. The said appointment was placed before the D.E.O for W.A.Nos.1771 & 1775/07 - 3 - approval. But, the said request was rejected by the D.E.O by Ext.P6 communication dated 26.2.2005. Against that order, the appellant preferred an appeal before the Deputy Director of Education. The said appeal was rejected by the Deputy Director by Ext.P7 order dated 4.5.2005. Subsequently, the Deputy Director took steps to disqualify the appellant, who was holding the office of Manager. Ext.P8 dated 14.1.2005 is the notice issued by the Deputy Director to the appellant concerning the matter. In the above factual background, the present Writ Petition was filed on 18.11.2005, challenging Exts.P1, P2 and P4 to P8 and seeking consequential reliefs. The 5[th] respondent filed a counter affidavit, supporting the impugned orders and resisting the prayers in the Writ Petition. 3. The learned Single Judge heard and disposed of the aforementioned Writ Petitions filed by the Manager and the 5[th] respondent by a common judgment dated 14.6.2007. The Writ Petition filed by the appellant herein was dismissed and the Writ Petition filed by the 5[th] respondent was allowed, awarding an amount of Rs.2 lakhs towards costs and compensation. The appellant herein was also directed to appoint the 5[th] respondent forthwith as Full-time Menial in the school. Challenging W.A.Nos.1771 & 1775/07 - 4 - the said common judgment, this Writ Appeal and W.A.No.1771/2007 were filed by the Manager. 4. We heard the learned counsel Sri.George Poonthottam for the appellant and Sri. M.V.Mathew for the 5[th] respondent. We also heard the learned Government Pleader Smt.T.B.Remani for the official respondents. 5. In the appeal the appellant has raised the following grounds. According to the appellant, the 5[th] respondent has not submitted any application in the prescribed format. The said point is plainly untenable, as the 5[th] respondent was fighting his cause from 1999 onwards. When the matter was pending before the statutory authorities, the appellant never had a case that the 5[th] respondent did not apply in the prescribed format and therefore, he could not be appointed. In fact, the said contention is an abuse of the process of court and it is only to be rejected and we do so. Further, the said point is covered against the appellant by the decision of the Division Bench of this Court in **Unnikrishnan v. Manager, C.A.H.S** . [2010(1) KLT 354]. 6. The next point raised is that the death took place in 1995 and therefore, employment cannot be provided after a long delay of more than 5 years. The appointment under the dying-in-harness scheme, prevailing W.A.Nos.1771 & 1775/07 - 5 - in aided schools in Kerala, cannot be compared with the said scheme in Central Government Service or Public Sector Undertakings. It is a statutory scheme providing for preference in appointment to dependents in aided schools. The point raised by the appellant in this regard is also covered against him by the decision of this Court in **S.N.G.S. High School** **v. Reji Sagar** [2008(1) KLT 1026]. Further, the 5[th] respondent attained majority only on 20.5.2000. As per the relevant Government order, a minor claimant can apply for appointment within three years of his attaining majority. In the absence of any challenge to that order which forms part of the Kerala Education Rules, the Manager is bound by that Rule. So, the said contention is plainly untenable. 7. The next point canvassed is concerning the applicability of the provisions of Chapter XXIVB of the Kerala Eduction Rules (K.E.R.) and the alleged redundancy of the provisions of Chapter XXIVA of the K.E.R.. The said point is also covered against the appellant by the decision of the Division Bench of this Court in **Saraswathi Vilasam U.P.School** v. **Priyesh Aramana** [2007(3) KLT 648]. We are in respectful agreement with the view taken by the Division Bench in that decision. 8. Further, the Government have as early as on 9.1.2001, by W.A.Nos.1771 & 1775/07 - 6 - Ext.P4 order, directed the appellant to appoint the 5[th] respondent in his school. The said order was challenged after the lapse of about 5 years, in November, 2005. Exts.P4 to P8 are dependent proceedings issued based on Ext.P4. Since the challenge against Ext.P4 fails owing to delay, the challenge against Exts.P5 to P8 also fails. In the result, we affirm the judgment of the learned Single Judge, in so far as it repels the challenge against Exts.P4 to P8 and directs the appellant to appoint the 5[th] respondent in his school as Full-time Menial forthwith. 9. Now, the point which remains to be considered is the validity of the direction to the appellant to pay Rs.2 lakhs towards costs and compensation to the 5[th] respondent. The jurisprudential basis for the award of such a huge amount as compensation is the alleged violation of the fundamental rights of the 5[th] respondent under Article 21 of the Constitution of India by the appellant-Manager. 10. The guarantee under Article 21, in fact, is an injunction against the State. The Manager is a statutory authority and is, therefore, amenable to the writ jurisdiction of this Court concerning his functions as Manager. But, it is not yet settled whether he can be compelled by this Court under Article 226 to obey the various injunctions against the State, contained in W.A.Nos.1771 & 1775/07 - 7 - Part III of the Constitution of India. The denial of employment may result in denial of a decent living, which is now treated as part of right to life flowing from Article 21. But, if a private person violates the fundamental rights of a citizen under Article 21, the person who suffered the injury has, ordinarily, to seek reliefs before the competent civil court or other statutory forums, if any, provided. If, as a result of the commissions and omissions of the Manager, if the 5[th] respondent has lost salary, the Deputy Director of Education can take action against the Manager under Rule 7 of Chapter III of the K.E.R., recover the loss suffered by the 5[th] respondent from the Manager and pay it to the 5[th] respondent. Going by Ext.P8, it appears, action under Rule 7 of Chapter III of the K.E.R., to disqualify the appellant to hold the office of Manager, has already been initiated. In view of the above position, we think, the direction to pay Rs.2 lakhs towards costs and compensation to the 5[th] respondent is not justified. Accordingly, the said direction is vacated. But, the 5[th] respondent is entitled to get costs throughout, which we fix as Rs.10,000/-. Subject to the above modification, the Writ Appeal is dismissed. W.A.No.1771/2007: 11. In view of the judgment in W.A.No.1775/2007, this appeal is W.A.Nos.1771 & 1775/07 - 8 - also dismissed. No separate order as to costs is made in this appeal. **K. Balakrishnan Nair, Judge.** **P.N.Ravindran, Judge.** ## **nm.**