The Manager, Rahmania Orphanage A.L.P.School v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934** ## **WP(C).No. 14692 of 2010 (J) ---------------------------** **PETITIONER(S): --------------------------** **THE MANAGER,RAHMANIA ORPHANAGE A.L.P.SCHOOL, PERUVALATHPARAMBA, IRIKKUR, KANNUR-670 593.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENT(S):** **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-14.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR.P.O., KANNUR-2.** **4. THE ASSISTANT EDUCATIONAL OFFICER, IRIKKUR, KANNUR DISTRICT.** **5. SMT.K.E.MANJULA,ABHIPURAM, VIDHYA NAGAR, P.O.PILATHARA, KANNUR DISTRICT.** **R1 TO R4 BY SR GOVERNMENT PLEADER SRI.V.VIJULAL R5 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.14692/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE LETTER OF THE 5TH RESPONDENT DATED 06/08/2004** - **P1(A) COPY OF THE -DO- DO- DATED 26/06/2006** - **P2 COPY OF THE LETTER OF THE MANAGER DATED 25/08/2004** - **P2(A) COPY OF THE -DO- -DO- DATED 15/09/2006** - **P3 COPY OF THE LETTER OF THE 5TH RESPONDENT DATED 15/02/2010** - **P4 COPY OF THE REPLY OF THE MANAGER DATED 04/03/2010** - **P5 COPY OF THE G.O.(RT)NO.1599/10/G.EDN OF THE GOVERNMENT DATED 09/04/2010** - **P6 COPY OF THE DECISION REPORTED IN 2012 (3) K.L.T. 214 (SC) DATED 3/7/2012** **RESPONDENT'S EXHIBITS:** - **R5(A) COPY OF THE APPLICATION DATED 26/4/2003** - **R5(B) COPY OF THE APPLICATION DATED 26/5/2003** - **R5(C) COPY OF THE ORDER DATED 3/6/2006 ISSUED BY THE AEO TO THE PETITIONER.** - **R5(D) COPY OF THE APPLICATION** - **R5(E) COPY OF THE LETTER DATED 18/8/2004 ISSUED BY THE AEO TO THE MANAGER** - **R5(F) COPY OF THE LETTER DATED 15/9/2005 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT** - **R5)G) COPY OF THE LETTER DATED 15/2/2010** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN, J.** ## **--------------------------------------** ## **W.P.(C) No.14692 of 2010** **--------------------------------------Dated this the 19[th] day of February, 2013** ## **J U D G M E N T** Ext.P5 Government order dated 9.4.2010 directing the petitioner to consider the application for compassionate appointment submitted by the fifth respondent after condoning the delay in filing the said application, if she is otherwise eligible for such appointment, is under challenge in this writ petition. The brief facts of the case are as follows: 2. The fifth respondent's father late V.T.Krishnan Nair passed away on 29.6.1996 while he was working as Headmaster of the petitioner's school. He entered service in the petitioner's school on 13.6.1981. The fifth respondent herein who was born on 9.2.1977 attained the age of 18 years in the year 1995, prior to the sad demise of her father on 29.6.1996. She applied for appointment under rule 51-B of Chapter XIV-A of the Kerala Educational Rules, by submitting applications dated 26.4.2003 and 26.5.2003. The fifth respondent thereafter submitted a representation dated 10.6.2009 before the Government. Pursuant to the direction issued by this Court in W.P.(C) No.16185 of 2008, the Government considered the said representation and passed Ext.P5 order dated 9.4.2010 holding that the petitioner W.P.(C) No.14692 of 2010 2 ought to have informed the fifth respondent about her right to seek compassionate appointment and therefore, the delay in applying for compassionate appointment cannot be held out against her. Hence this writ petition challenging Ext.P5 Government order and seeking the following reliefs: - i. Call for the records relating to Exhibit P-5 and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order. - ii. Declare that the 5[th] respondent has no subsisting claim for employment assistance int eh petitioner's school. 3. The principal contention raised in the writ petition is that before Ext.P5 order was passed the petitioner was not put on notice or heard. It is stated that a copy of the representation filed by the fifth respondent which led to Ext.P5 order was not given to him. The petitioner has also raised the contention that on the date on which Sri.V.T.Krishnan Nair passed away, the petitioner who was born on 9.2.1977 had attained the age of majority, but notwithstanding that fact she did not apply for compassionate appointment in time; that there is no proximity between the date of death and the date of submission of the application and therefore, she is not entitled for employment assistance under the compassionate appointment scheme. In addition, it is contended that the fifth respondent is married and dependant on her husband and therefore for that reason 3 W.P.(C) No.14692 of 2010 also, she is not entitled to compassionate appointment. The petitioner has also raised a further contention that no application in the prescribed form has so far been submitted. 4. A counter affidavit dated 30.5.2011 has been filed on behalf of the first respondent. In paragraph 2 thereof it is contended that the fifth respondent became qualified to hold the post of Lower Primary School Assistant on 15.10.2004 when she acquired TTC qualification, that after joining the TTC course she had applied for employment assistance to the then Manager of the school and after completing the course she had submitted Ext.P1 representation dated 6.8.2004 seeking appointment. It is stated that though a vacancy had arisen on 12.8.2004 as the fifth respondent was not qualified, the Manager had appointed another person namely Smt.Safeera Mangadan in the vacancy of Lower Primary School Assistant. However, it is stated that the petitioner ought to have accommodated the fifth respondent in the vacancy of Lower Primary School Assistant which arose in the year 2009-10. In paragraph 3 it is contended that the petitioner cannot take the stand that the dependent did not apply in time or in the prescribed form. Relying on the decision of this Court in **SN GS High School** v. **Regi Sugar** (2008 (1) KLT 1026) it is contended that it is the duty of the Manager to provide employment and even if there is delay in 4 W.P.(C) No.14692 of 2010 submitting the application as provided in the Government order dated 24.5.1999, there is no justification for the Manager to deny appointment under rule 51-B of Chapter XIV-A of Kerala Educational Rules. In paragraph 4 it is contended that no time limit is prescribed in rule 51-B of Chapter XIV-A of Kerala Educational Rules for submission of application and therefore it is very reasonable to consider that a dependent need only apply for employment assistance immediately after acquiring the minimum qualification for the lowest post available in the institution. Relying on the decision of this Court in **K.K.Soopy Haji** v. **State of Kerala** (2004 (3) KLT 142) it is contended that the Manager should appoint a rule 51-B claimant as and when a vacancy arises and for that the dependent need not submit an application. 5. The fifth respondent has filed a counter affidavit dated 17.2.2013. In paragraph 2 she has stated that a request for compassionate appointment was made by her before the petitioner well in time as stipulated in the relevant Government order, but he disregarded such applications. In paragraph 3 she has stated that she underwent the Teachers Training Course during the period 2003-2004, that the result was published on 15.10.2004 and that an application indicating her qualification could be filed only after joining the course. She has stated that based on the application submitted by her to the 5 W.P.(C) No.14692 of 2010 then Manager of the School for compassionate appointment, the Assistant Educational Officer, Irikkur had by letter dated 3.6.2003 directed the Manager to appoint her when she acquires the qualification, that with the motive of defeating her claim the Manager appointed another person namely Smt.Safeera Mangadan on 12.8.2004 and that thereafter also, a vacancy arose in the school in the year 2009-2010. She has along with the counter affidavit produced as Ext.R5(a), a copy of the application dated 26.4.2003 submitted by her for compassionate appointment, as Ext.R5(b) a copy of the application dated 26.5.2003 submitted by her to the Manager seeking compassionate appointment and as Ext.R5(c), a copy of the letter dated 3.6.2003 sent the Assistant Educational Officer, Irikkur to the Manager directing him to consider her claim under rule 51-B of Chapter XIV-A of the Kerala Educational Rules in the next arising vacancy. In paragraph 10 she has stated that even if the petitioner had been heard, it would not have made any difference regarding the outcome of the representation filed by her before the Government. She has also raised various other contentions including the contention that even married children are entitled for employment assistance if they were depend on the deceased employee. 6. It is evident from Ext.P1 representation dated 6.8.2004 6 W.P.(C) No.14692 of 2010 submitted by the fifth respondent that she was born on 9.2.1977. Her father late V.T.Krishnan Nair passed away on 29.6.1996. Before that date she had the attained age of majority. Her first application for compassionate appointment was submitted only on 26.4.2003. The second application was submitted on 26.5.2003. Though these applications were not in the prescribed form, it is evident from the second page of Ext.P1 representation that the earliest of the applications submitted by the fifth respondent were dated 26.4.2003 and 26.5.2003. The next request by her seeking compassionate appointment is dated 26.6.2006, a copy of which is produced and marked as Ext.P1(a). The Apex Court has in **Shreejith** v. **Deputy Director (Education) Kerala** (2012 (3) KLT 214) held that submission of an application which is required to be submitted within the period prescribed for the purpose and the availability of vacancy against which such an application considered are distinct and different matters and that what is important is the making of an application for appointment under the compassionate employment scheme within the period stipulated for the purpose. The Apex Court held that whether or not a vacancy is available has nothing to do with the making of the application itself and that as the respondent before the Apex Court had failed to do that, he cannot claim compassionate appointment. The 7 W.P.(C) No.14692 of 2010 ## relevant portion of the judgment of the Apex Court in **Shreejith** v. **Deputy Director (Education) Kerala** (supra) is extracted below: 15. There is considerable merit in the contention urged by Mr.Rajan. It is not in dispute that respondent No.1 had attained majority on the 8[th] of May, 1995 whereas the application for compassionate appointment was made on 10[th] September, 2007. This application was, on the face of it, beyond the period stipulated in the scheme for making such a claim. The High Court appears to have confused an application required to be filed within the period stipulated for the purpose with the availability of a vacancy against which such an application could be considered by the Manager. These were two distinctly different matters. What was important was the making of an application for appointment on compassionate basis within the period stipulated for the purpose. Whether or not a vacancy is available had nothing to do with the making of the application itself. An application could and indeed ought to have been made by respondent No.1 within the time stipulated, regardless whether there was a vacancy already available or likely to become available in the near or distant future. Respondent No.1 having failed to do that, could not claim a compassionate appointment especially when there was nothing on record to suggest that the family was in penury notwithstanding the lapse of a considerable period since the demise of the bread-winner, during which period respondent No.1 had got married and settled down in life and supports a family. The High Court was in that view clearly in error in issuing a mandamus to the Manager to appoint the respondent on compassionate basis which order calls for interference and is hereby reversed. W.P.(C) No.14692 of 2010 8 7. In paragraph 28 of the judgment, the Apex Court declined to approve the view expressed by this Court in **Baiju Kumar** v. **D.E.O., Trivandrum** (2003 (3) KLT 240) and held there is no obligation on the part of the Manager of an institution to go in search of the legal heirs of deceased employees or educate them about their right to seek an appointment under the scheme and that if a person is eligible for a benefit under the scheme he can and indeed should on his own approach the institution and seek such an appointment. The Apex Court also held that in a case where an application is made by the legal heir of a deceased employee claiming the benefit of the scheme for compassionate appointment within the stipulated time, the deficiencies and defects, if any in the said application should be pointed out to the concerned to enable him to remove the same within a reasonable time. Rule 51-B of Chapter XIV-A of the Kerala Educational Rules stipulates that the Government orders relating to employment assistance to dependents of Government servants dying-in-harness shall mutatis mutandis, apply. Paragraph 19 of G.O.(P) No.12/99/P&ARD dated 24.5.1999 which is the Government order relating to employment assistance to dependants of Government servants dying-in-harness, stipulates that the time limit for preferring applications under the scheme will be 2 years from the date of death of the Government 9 W.P.(C) No.14692 of 2010 servant. It is also stipulated that in the case of a minor, the period will be within 3 years after attaining majority. In the instant case, the fifth respondent had admittedly attained the age of majority before her father died-in-harness. Her first application for appointment though not in the prescribed form was admittedly made only on 26.4.2003. These facts are not in dispute. In such circumstances, as no application was made within the time limit stipulated in paragraph 19 of G.O.(P) 12/99/P&ARD dated 24.5.1999, seeking compassionate appointment under rule 51-B of Chapter XIV-A of the Kerala Educational Rules, I am of the opinion that the Manager had no duty to consider the fifth respondent's request. That apart the Apex Court has in **Shreejith** v. **Deputy Director (Education) Kerala** (supra) held that there is no obligation on the part of the institution or the Manager to go in search of the legal heirs of deceased employees or educate them about their right to seek an appointment under the scheme. It was held that if a person is eligible for a benefit under the scheme he can and indeed should on his own approach the institution and seek such an appointment. Therefore the mere fact that the Manager had not offered employment assistance to the dependant is not a reason to hold that the delay on the part of the respondent in applying for compassionate appointment should be condoned. Tested in the light of W.P.(C) No.14692 of 2010 10 the principles laid down by the Apex Court in **Shreejith** v. **Deputy Director (Education) Kerala** (2012 (3) KLT 214), the impugned order cannot in my opinion be sustained. I accordingly allow the writ petition, set aside Ext.P5 Government order dated 9.4.2010 and declare that the fifth respondent has no subsisting claim for employment assistance under rule 51-B of Chapter XIV-A of Kerala Educational Rules. sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge