High Court of KeralaSingle Judge2010-04-09Writ petitions allowed with direction to the AE...

Pradeep K.V. v. State of Kerala and Others

Case / Petition Number:W.P.(C).No.8645/2008-D & 22522/2009-I

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
Judgment Date: 2010-04-09
Court Decision / Holding: Writ petitions allowed in terms of directing the Assistance to hear the matter de novo, including Pradeep, Vishnu, and the manager, with opportunity to adduce evidence; AEO to give reasons and decide within three months; the decision remains subject to appeals or revisions under KER.
Final Disposition: Writ petitions allowed with direction to the AEO to conduct de novo hearing and decide within three months, providing reasons; parties to be heard; final orders subject to statutory revision.

Parties to the Case

Appellants / Petitioners

Pradeep K.V.
Vishnu M.G

Respondents

State of Kerala represented by the Principal Secretary, Department of General Education, Secretariat, Thiruvananthapuram
The Director, Department of Education, Directorate of Education, Thiruvananthapuram
The Asst. Education Officer, Kundara, Kollam District
The Manager, U.P.G.S. Punukkanoor, Alummoodu P.O., Kundara, Kollam District
Vishnu M.G., S/O. Muraleedharan Pillai, 'Deepam', Punukkonnoor, Alummoodu.P.O., Kollam District

Legal Representation & Advocates

Counsels for Petitioners

• V. Jayapradeep
• C.M. Mohammed Iquabal

Counsels for Respondents

• Smitha Sukumar
• O.D. Sivadas
• S. Shaji
• C.M. Mohammed Iquabal

Case Synopsis & Summary

Pradeep K.V., the son of the late Viswanatha Pillai, challenged the denial of a compassionate appointment under the dying-in-harness scheme at the U.P.G.S. Punukkanoor. His application was submitted on 24 September 1998, when he was 21, for consideration against a vacancy that arose on 1 June 2007. The Manager had refused, citing lack of consent from other heirs and the AEO dismissing the claim on the ground that Pradeep was over-aged as of the vacancy date (36 years). The petition, first WP(C) No. 8645/2008 and later joined with WP(C) No. 22522/2009 by Vishnu M.G., contends that the 1997 applicability of Section 51B of Chapter XIV-A KER and the evolving government rules did not bar consideration, especially as the application preceded many of the later forms and prescriptions. The court notes the legal principle that compassionate appointments are meant to provide succor in cases of need and that the age criterion should be evaluated with reference to the year of submission, citing Snineesh v. State of Kerala (2009) 4 KLT 719. It sets aside the AEO’s decision, directing a de novo hearing with due opportunity for Pradeep, Vishnu, and the school manager, within three months, and to articulate reasons. The court emphasizes that the hearing may consider Ext.P14 and related materials and that the decision would be subject to appeal or revision under the Kerala Education Rules.

Provisions of Law Cited

Section 51B of Chapter XIVRule 51B Chapter XIV-A KER

Legal Doctrines & Maxims

Compassionate appointment for cases of need (dying-in-harness scheme)
Year of submission rule (not year of appointment) as per Snineesh v. State of Kerala
Dying in harness / compassionate appointment doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner's case rests on the compassionate appointment under the dying-in-harness scheme, the applicability of Section 51B of Chapter XIV-A KER to the period in question, and the principle that the year of submission governs eligibility rather than the year of vacancy or appointment. The appellant contends that earlier forms were not prescribed and that the delay between death (1984) and application (1998) should not nullify his claim, especially since the family’s need continued. The reliance on established precedents such as Snineesh v. State of Kerala is urged to permit de novo consideration by the AEO, with due process and an opportunity to ventilate the heirs’ consent issues; Ext.P14 evidence should be examined to determine the true status of consent.

Contentions of Respondents

The respondents argue that the AEO correctly found Pradeep ineligible due to over-age as of 1 June 2007 and required consent from other heirs; they point to the lack of a prescribed form at the relevant time and the need for proper procedural compliance. They contend that the long gestation period and procedural gaps warrant upholding the original rejection, and that any order must reflect that the family’s consent and the formalities are prerequisites for compassionate appointments. They assert that the fate of Vishnu M.G. and other heirs requires careful adjudication, including proper hearing avenues for all parties, to avoid arbitrary appointments.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Snineesh v. State of Kerala	2009 (4) KLT 719	Positive	The court relies on the Snineesh precedent to adopt the principle that eligibility is determined by the year of submission, not year of appointment, for compassionate appointments.
ILR 2007(3) Kerala 361	—	Mentioned Only	Referenced among precedents; not explicitly applied to alter the decision in this case.
W.A. 149/2008	Dtd. 07/02/2008	Mentioned Only	Cited as a related judgment; not used as basis for the decision in the present writ petitions.
WP(C).No.14092/2004	—	Mentioned Only	Referenced via the Short Notes (Case No.131) concerning prior discussions; not directly applied here.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932** **WP(C).No. 8645 of 2008(D)** **-------------------------------------** ## **PETITIONER:** - **-------------------** **PRADEEP K.V., PALLICKAL VEEDU, PAZHANGALAM, NALLILA P.O., KOLLAM- 691 515.** ## **BY ADV. SRI.V.JAYAPRADEEP.** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR, DEPARTMENT OF EDUCATION, DIRECTORATE OF EDUCATION, THIRUVANANTHAPURAM.** **3. THE ASST. EDUCATION OFFICER, KUNDARA, KOLLAM DISTRICT.** **4. THE MANAGER, U.P.G.S.PUNUKKANOOR, ALUMMOODU P.O., KUNDARA, KOLLAM DISTRICT.** ## ***ADDL.R5 IMPLEADED:** **5. VISHNU M.G,** - **S/O. MURALEEDHARAN PILLAI.B., `DEEPAM', PUNUKKONNOOR, ALUMMOODU.P.O., KOLLAM DISTRICT.** - ***ADDL.R5 IS IMPLEADED AS PER ORDER IN I.A. 11730/08 DTD. 05/01/09.** **R1 TO R3 BY GOVT. PLEADER SMT. SMITHA SUKUMAR, R4 BY ADVS. SRI.O.D.SIVADAS, SRI.S.SHAJI. ADDL.R5 BY ADV.SRI. C.M.MOHAMMED IQUABAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/04/2010,ALONG WITH W.P.(C). NO. 22522 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.8645/2008-D:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE APPLICATION DTD. 24/09/98 OF THE PETITIONER.** **EXT.P.2: COPY OF THE REPRESENTATION DTD. 08/10/1998 KERALA STATE EDUCATION MINISTER.** **EXT.P.3 SERIES: COPIES OF THE ACKNOWLEDGEMENT CARDS SIGNED BY VARIOUS AUTHORITIES.** **EXT.P.4: COPY OF THE ORDER OF THE DPI DTD. 10/05/99.** **EXT.P.5: COPY OF THE REPRESENTATION DTD. 23/07/07 TO THE EDUCATION MINISTER.** **EXT.P.6: COPY OF THE LETTER DTD. 05/10/07 OF THE DPI.** **EXT.P.7: COPY OF THE REPRESENTATION DTD. 10/08/07 TO R4.** **EXT.P.8: COPY OF THE LETTER DTD. 18/08/07 OF THE R.4.** **EXT.P.9: COPY OF THE REPLY LETTER DTD. 01/09/07 TO R4.** **EXT.P.10: COPY OF THE LETTER DTD. 03/10/07 ISSUED BY THE A.E.O.** **EXT.P.11: COPY OF THE LETTER DTD. 10/10/2007 ISSUED TO AEO.** **EXT.P.12: COPY OF THE RECTIFIED APPLICATION FORM DTD. 25/02/2008.** **EXT.P.13: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. 149/2008 DTD.07/02/2008.** **EXT.P.14: COPY OF THE LEGAL HEIRSHIP CERTIFICATE OF TAHASILDAR, KOLLAM DTD. 22/01/08.** **EXT.P.15: COPY OF THE LETTER DTD. 06/05/2008 FROM THE INFORMATION OFFICER, SUB DISTRICT EDUCATIONAL OFFICE, KUNDARA.** **EXT.P.16: COPY OF THE LIST OF TEACHING STAFF APPOINTED AFTER THE DEMISE OF THE FATHER OF THE PETITIONER.** **EXT.P.17: ORIGINAL LIST OF TEACHING STAFF APPOINTED AFTER THE DEMISE OF THE FATHER OF THE PETITIONER ISSUED BY THE O/O. AEO.** ## **RESPONDENTS' EXHIBITS:** **EXT.R4.A: COPY OF THE COMPLAINT FILED BY MEMBERS OF THE STAFF COUNCIL.** **EXT.R4.B: COPY OF THE RELEVANT PORTION OF THE G.O.(P).NO.12/99/P&ARD DTD. 24/05/1999.** **W.P.(C). NO.8645/2008-D:** **EXT.R4.C: COPY OF THE DECISION REPORTED IN I.L.R. 2007(3) KERALA 361. EXT.R5.A: COPY OF THE APPOINTMENT ORDER DTD. 01/02/2008.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## THOTTATHIL B.RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.8645/2008-D & 22522/2009-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of April, 2010. ## Judgment 1.While working as a UPSA in U.P.G.School, P.Viswanatha Pillai died on 12.1.1984. Pradeep K.V., one among the legal representatives of the said person, being his son, applied for compassionate appointment. That application was made on 24.9.1998. He was then 21 years' old. His plea was that he is entitled to be considered as against the vacancy that occurred on 1.6.2007. The Manager of the School took the stand that Pradeep had not obtained the consent of the other heirs of late Viswanatha Pillai whose wife and children do not need the assistance of appointment under the dying in harness scheme. The Manager took the further stand that the children of Viswanatha Pillai and Soudamini Amma, including Pradeep, were all married and reside separately. Pradeep carried that matter to the WPC8645/08 & 22522/09 -: 2 :- AEO who, in turn, rejected Pradeep's claim on the ground that he was over-aged as on the date of occurrence of the vacancy because by 1.6.2007, Pradeep had attained 36 years of age. It was also stated that the other dependents(heirs) of Viswanatha Pillai had not consented to the appointment of Pradeep. It was stated that the application was not in proper form. - 2.While Pradeep filed W.P.(C).8645/2008 challenging the aforesaid decision of the AEO, M.G.Vishnu filed WP(C).22522/2009 and got himself impleaded at his instance in WP(C).8645/2008 stating that he was appointed on 1.2.2008 and his such appointment is eligible for being approved by the statutory authorities. It is stated that one Deepthi was appointed in the interregnum. I do not deem it necessary to consider her case for deciding the issue in hand. - 3.The provisions of Section 51B of Chapter XIV became applicable to the upper primary schools in WPC8645/08 & 22522/09 -: 3 :- the aided sector only in 1997. Therefore, notwithstanding the fact that Viswanatha Pillai died way back on 12.1.1984, his son Pradeep cannot be criticized for having made the application only on 24.9.1998. This is because, Pradeep could not have made a request for such appointment at all, in the absence of provision for appointment under the dying in harness scheme. 4.In the Government Order and the relevant rules that governed the situation in 1997 and 1998, there was no prescribed form to make an application. Therefore, when Pradeep made the application on 24.9.1998 [Ext.P1 in WP(C). 8645/2008], he could not be expected to make the application in terms of a form prescribed in the Government Order issued later on 24.5.1999. Hence, the finding of the AEO that the application of Pradeep was not in the form prescribed also does not stand. WPC8645/08 & 22522/09 -: 4 :- 5.Adverting to the stand that Pradeep had become over-aged as on the date of occurrence of vacancy, namely, 1.6.2007, the law laid in this regard is the decision of the Division Bench of this Court in Snineesh v. State of Kerala, 2009 (4) KLT 719 in which it has been categorically laid down that it is the year of submission of the application that is relevant and not the year of appointment, to decide whether an applicant is over-aged. Hence, that ground of rejection of the AEO also goes. 6.This leaves two questions which are firstly, whether the other dependents (heirs) of Viswanatha Pillai had conceded to the appointment of Pradeep. For this, Pradeep relies on Ext.P14 in WP(C).8645/2008. He also states that in answer to the communication of the AEO which is Ext.P10 in WP(C)8645/2008, he had made a clarificatory statement and that the same is pending before the AEO. The second issue that may be relevant is as to whether the fairly long time lag between WPC8645/08 & 22522/09 -: 5 :- 12.1.1984, the date of death of Viswanatha Pillai and the date of application 24.9.1998 is relevant, notwithstanding whatever stated above, having regard to the fact that in terms of the law laid by the Apex Court, the appointments under the dying in harness scheme, including under Rule 51B of Chapter XIV-A KER, are to be made on the basis of the prime principle that such appointments are required to provide succor in cases of need. This is an issue on which the Manager has stated in his decision that the benefit has to be given when the sole person on whom the family depends for livelihood dies in harness and that Pradeep and the other heirs of Viswanatha Pillai are all married and reside separately in separate residences and still further, that none of the heirs of Viswanatha Pillai is entitled to appointment on compassionate grounds under the existing law. This crucial aspect can be noticed with immediate reference to the different precedents of the Apex Court and of this Court as are referred to in the WPC8645/08 & 22522/09 -: 6 :- judgment dated 7.1.2005 in WP(C).No.14092/2004 reported as Case No.131 at Short Notes page 104 of 2005 (1) KLT. 7.In the light of what is aforesaid, the question of approving the appointment of Vishnu would depend upon the final decision to be rendered on the claim of Pradeep for appointment under Rule 51B Chapter XIV-A. Having found against the views of the AEO reflected in Ext.P10 in WP(C). 8645/2008, the said decision is set aside and the AEO is directed to hear the parties de novo, including by taking into consideration Ext.P14 in WP(C).8645/2008 and the supplementary reply that Pradeep is stated to have filed before the AEO in answer to Ext.P10. If the AEO entertains any doubt regarding the credibility of the so-called stand by the other heirs of Viswanatha Pillai, it will be open to the AEO to summon them and record their statements. In taking a decision as aforesaid, the AEO will provide opportunity of hearing to Pradeep, Vishnu and the manager of the WPC8645/08 & 22522/09 -: 7 :- school. It is also necessary that the AEO gives reasons for decisions in an appropriate manner since the decision that the AEO takes would be appealable or revisionable before the statutory higher authorities in terms of the KER. Let the exercise be carried out by the AEO within an outer limit of three months from the date of receipt of a copy of this judgment. The parties are directed to appear before the AEO Kundara on 29[th] April, 2010 to enable the AEO to fix appropriate dates for hearing. The writ petitions are ordered accordingly. THOTTATHIL B.RADHAKRISHNAN, Sha/2004