Mohammed Shaluf v. Kerala State Co-operative Agricultural and Rural Development Bank Ltd; Board of Directors of KSCRDB; Registrar of Cooperative Societies; State of Kerala

1 WPC 6546/24 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 ``` ``` WP(C) NO.6546OF 2024 ``` ## **`PETITIONER/S:`** ``` MOHAMMED SHALUF, AGED 26 YEARS S/O.MOHAMMED MOIDEEN, MANAKULANGARA PARAMBIL HOUSE, KOMBIDINJAMAKKAL, THAZHAKKAD P.O, THRISSUR DISTRICT, PIN - 680697 ``` ``` BY ADVS. ARJUN RAGHAVAN T.R.HARIKUMAR POOJA PANKAJ ``` ## **`RESPONDENT/S:`** - **`1 THE KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO.T 4017 REPRESENTED BY ITS MANAGING DIRECTOR, AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE BOARD OF DIRECTORS OF THE KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO.T 4017 REPRESENTED BY ITS PRESIDENT, AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O, THIRUVANANTHAPURAM, PIN - 695014`** - **`4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695014`** ## **`OTHER PRESENT:`** ## **`SR GP SMT MARY BEENA JOSEPH`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WPC 6546/24 ## **JUDGMENT** (Dated this the 3[rd] day of April 2024) The petitioner’s father was an employee under the 1st Respondent Bank. He met with a tragic accident on 21.8.2020 and became permanently disabled. Ext.P4 is the disability certificate issued by the Medical Board attached to the Government Government Medical College Hospital, Mulankunathukavu, Thrissur, which certifies that the father of the petitioner has 100% disability. 2. The petitioner is a Bachelor's degree holder in Mechanical engineering. After the tragic accident of his father, the family finds it very difficult to pull on and meet the two ends meet. Therefore, the petitioner submitted Ext.P11 application before the 1st respondent seeking compassionate appointment under the dying in harness scheme under Rule 188A of the Kerala Co-operative Societies Rules (for short ‘the Rules’). The petitioner was informed through Ext.P12 letter 3 WPC 6546/24 dated 24.6.2021 that the request of the petitioner cannot be considered under the present scheme. On 1.1.2022, the petitioner was issued with Ext P13 letter directing him to produce certain requisite documents for considering his application for compassionate appointment by the Government. Though he has produced all the medical certificates and documents, by EXt.P14 communication dated 10.2.2023 it was informed that the application cannot be considered since compassionate appointment under the dying in harness scheme can only be given to dependant persons of the employees who had died while in service. Ext.P14 is issued pursuant to Ext.P15. The petitioner has approached this court with the following prayers; i) to issue a writ of certiorari calling for the records leading to the issuance of Exts-P14 and P15 communications issued by respondents 1 and 3, and quash the same; ii) to issue a writ of mandamus or any other appropriate writ of direction, directing respondents 1 to 4 to reconsider Ext-P11 application submitted by the petitioner, by treating the case of the petitioner's father under Rule 188A of the Kerala Cooperative Societies Rules; 4 WPC 6546/24 iii) to declare that Rule 188A of the Kerala Co-operative Societies Rules would also include the cases of employees who are permanently incapacitated; iv) to declare that the stand of respondents 3 and 4 as discernable from Exts-P14 and P15 communications that the petitioner's application cannot be considered as his father is still alive, is arbitrary and capricious; v) to dispense with filing of the translation of vernacular documents; vi) to grant such other relief's as this Honourable Court may deem fit in the circumstances of this case. 3. Heard the counsel on both sides. 4. The counsel for the petitioner relied on a judgment of this court in **Rita Bella R. v. State of Kerala and others [2015** **(1) KHC 590]** , wherein a learned Single Judge of this court held that an employee, who has 100% permanent disability and permanently incapacitated has to be provided with a compassionate appointment. The said judgment was affirmed by a Division Bench of this court in W.A.No.1100 of 2015. The petitioner also relies on the judgment of this court in **Sivamurthy v. State of Andhra Pradesh [(2008) 13 SCC 730].** 5 WPC 6546/24 5. The learned Government Pleader submitted that going by Rule 188A of Kerala Cooperative Societies Rules, 1969 (for short ‘the KCS Rules’) employment assistance is only given to dependants of employees who die while in service and not to dependants of persons who have been incapacitated. Therefore, contended that the rejection of petitioner’s application under the said Rule, is perfectly right. She distinguished the judgment in **Rita Bella R** (supra) by arguing that it was a case in which a claim was made by a dependant where the employee was working under Kerala State Electricity Board on the basis of the Kerala State Electricity Board (Appointment of dependants of Board employees who die-in-harness or are permanently disabled and are retiring on invalid pension) Regulations, 1985. As per the said scheme, compassionate appointments can be given to employees who are permanently disabled also. But going by Rule 188A of KCS Rules, compassionate appointment is given to dependant of the employees, who die 6 WPC 6546/24 in service. Therefore, the dictum laid down in **Rita Bella R** (supra) is not applicable to the facts of this case. 6. Rule 188A of KCS Rules is the only Rule by which a dependant can claim employment assistance. When the Rule is very clear regarding the persons who are entitled to claim appointments, notice to respondents 1 and 2 is dispensed with, as they only acted in accordance with Ext.P15 letter issued by the Registrar of Co-operative Societies. 7. Taking into consideration of the facts and circumstances of the case and specifically Rule 188A of the KCS Rules, I am of the considered opinion that the petitioner is not entitled to get an appointment under the dying-in-harness scheme as the petitioner’s father who was an employee under the 1st respondent is still alive, though he is with 100% disability. Only if the Scheme or Rule allows appointment for dependant persons of the employee, who is permanently disabled, this court can come to the aid of the petitioner. 7 WPC 6546/24 8. The apex court in **Bhawani Prasad Sonkar v. Union** **of India [(2011) 4 SCC 209]** has held that in respect of compassionate appointment, the Rule or the Scheme has to be strictly complied with and no deviation is possible. The relevant portion of the judgment in paragraph 20(i) reads as follows: “Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.” In the result, the Writ Petition fails and it is dismissed. 9. Before parting this court is of the opinion that as far as an employee, who is permanently disabled and who had to quit the job is in a precarious situation where the dependants have to look after him with extra care which calls for more financial burden on the family. Merely for the reason that the Rule or Scheme does not provide for compassionate appointment to 8 WPC 6546/24 a dependant of an employee who is 100 % disabled is a matter to be looked into with serious concern in the present scenario. The apex court in **Sivamurthy** (supra) has taken note of the situation and held as follows: “26. As an incidental reason for holding that compassionate appointments are not permissible in cases of medical invalidation, the High Court has observed that death stands on a "higher footing" when compared to sickness. The inference is compassionate appointment in case of medical invalidation cannot be equated with death-in-harness cases, as medical invalidation is not of the same degree of importance or gravity as that of death; and that as medical invalidation is not as serious as death-in-harness, exception can be made only in cases of employees dying-in-harness. But what is lost sight of is the fact that when an employee is totally incapacitated (as for example when he is permanently bedridden due to paralysis or becoming a paraplegic due to an accident or becoming blind) and the services of such an employee is terminated on the ground of medical invalidation, it is not a case of mere sickness. In such cases, the consequences for his family may be much more serious than the consequences of an employee dying-in-harness. 27. When an employee dies in harness, his family is thrown into penury and sudden distress on account of stoppage of income. But where a person is permanently incapacitated due to serious illness or accident, and his services are consequently terminated, the family is thrown into greater financial hardship, because not only the Income stops, but at the same time there is considerable additional expenditure by way of medical treatment as also the need for an attendant to constantly look after him. Therefore, the consequences in case of an employee being medically invalidated on account of a serious illness/accident, will be no less, in fact far more than the consequences of death-in-harness. Though generally death stands on a higher footing. than sickness, it cannot be gainsaid 9 WPC 6546/24 that the misery and hardship can be more in cases of medical invalidation Involving total blindness, paraplegia, serious incapacitating illness etc.” Therefore, it is high time that the State has to re-look into the matter to take a decision regarding compassionate employment to the dependants of those employees who have become 100% disabled while in service. The registry shall forward a copy of the judgment to the Chief Secretary of the State for further action. sd/- **BASANT BALAJI, JUDGE** dl/downloads 10 WPC 6546/24 ## **`APPENDIX OF WP(C) 6546/2024`** ## **`PETITIONER EXHIBITS`** - **`Exhibit-P1 A TRUE COPY OF THE FIR IN CRIME NO.828 DATED 22-08-2020 REGISTERED BY THE ALOOR POLICE STATION`** - **`Exhibit-P2 A TRUE COPY OF THE SALARY SLIP OF SRI.MOHAMMED MOIDEEN DATED 28-09-2020`** ``` Exhibit-P3A TRUE COPY OF THE CERTIFICATE DATED 08-10-2020 ISSUED FROM RAJAGIRI HOSPITAL ``` - **`Exhibit-P4 A TRUE COPY OF THE DISABILITY ASSESSMENT CERTIFICATE DATED 05-01-2022`** ``` Exhibit-P4(a)PHOTOGRAPH OF THE PETITIONER'S FATHER ``` - **`Exhibit-P5 A TRUE COPY OF THE AADHAAR CARD OF THE PETITIONER`** - **`Exhibit-P6 A TRUE COPY OF THE SECONDARY SCHOOL EXAMINATION CERTIFICATE (10TH CLASS) DATED 19-05-2014`** ``` Exhibit-P7A TRUE COPY OF THE COURSE COMPLETION AND CONDUCT CERTIFICATE ISSUED TO THE PETITIONER DATED 29-07-2021 ``` - **`Exhibit-P8 . A TRUE COPY OF THE TRANSFER CERTIFICATE DATED 25-08-2021 ISSUED TO THE PETITIONER FROM THE COLLEGE`** - **`Exhibit-P9 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE ANNA UNIVERSITY DURING SEPTEMBER, 2023`** - **`Exhibit-P10 A TRUE COPY OF THE INCOME CERTIFICATE DATED 20-03-2021 ISSUED BY THE VILLAGE OFFICER, THAZHAKKAD VILLAGE OFFICE`** - **`Exhibit-P11 A TRUE COPY OF THE APPLICATION DATED 26-03-2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT`** - **`Exhibit-P12 A TRUE COPY OF THE COMMUNICATION DATED 24-06-2021 ISSUED BY THE GENERAL MANAGER OF THE 1ST RESPONDENT`** - **`Exhibit-P13 A TRUE COPY OF THE COMMUNICATION DATED 01-01-2022 ISSUED BY THE GENERAL MANAGER-IN-CHARGE OF THE 1ST RESPONDENT TO THE PETITIONER`** - **`Exhibit-P14 A TRUE COPY OF THE COMMUNICATION DATED 10-02-2023 ISSUED BY THE GENERAL MANAGER-IN-CHARGE OF THE 1ST RESPONDENT TO THE PETITIONER`** - **`Exhibit-P15 A TRUE COPY OF THE COMMUNICATION DATED 20-12-2022 ISSUED BY THE 3RD RESPONDENT`**