WA Nos. 459 & 460 of 2017; WA No. 466 of 2017 (In the High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941 WA.No. 459 of 2017** **JUDGMENT IN WPC 10880/2014 of HIGH COURT OF KERALA DATED 30-01-2017** **APPELLANT/S:** **MANAGER, NADUVATHUR U.P.SCHOOL KEEZHARIYUR, KOZHIKODE DISTRICT, PIN-673324. BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** - **1 BIJEESH K, KODANGOTTUCHALIL, NADERI P.O., (VIA) KOYILANDY, PIN-673620.** - **2 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE, PIN-673001.** - **3 DISTRICT EDUCATIONAL OFFICER, VADAKARA, PIN-673101.** - **4 THE ASSISTANT EDUCATIONAL OFFICER, MELADY, MELADY P.O., KOZHIKODE DISTRICT, PIN-673522.** - **5 E.M.ANEESH, OFFICE ATTENDANT, U.P.SCHOOL, NADUVATHOOR, KEEZHARIYOOR, KOZHIKODE DISTRICT, PIN-673324.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND OTHER PRESENT: GP. RAJI T. BHASKAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH WA.466/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.Nos.459 & 460 of 2017 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** **WA.No. 466 of 2017** **JUDGMENT IN WPC 10880/2014 of HIGH COURT OF KERALA DATED 30-01-2017** ## **APPELLANT/S:** **E.M.ANEESH OFFICE ATTENDANT, U.P.SCHOOL, NADUVATHOOR, KEEZHARIYOOR, KOZHIKODE DISTRICT-673324.** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA** ## **RESPONDENT/S:** - **1 BIJEESH.K, KODANGOTTUCHALIL, NADERI P.O., (VIA) KOYILANDI-673620.** - **2 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE-673001.** - **3 DISTRICT EDUCATIONAL OFFICER VADAKARA-673101.** - **4 ASSISTANT EDUCATIONAL OFFICER** W.A.Nos.459 & 460 of 2017 3 ## **MELADY, MELADY P.O., KOZHIKODE-673522.** - **5 MANAGER** **U.P.SCHOOL, NADUVATHUR, KEEZHARIYUR, KOZHIKODE DISTRICT-673324.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH WA.459/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.Nos.459 & 460 of 2017 4 ## **“CR”** ## **JUDGMENT** ## V.G.ARUN, J. The writ appeals are filed, challenging the direction in the impugned judgment to consider the claim for compassionate appointment of the writ petitioner/first respondent herein and to pass reasoned orders, without rejecting the application for reason of delay. Writ Appeal No.459 of 2017 is filed by the Manager of the Naduvathur U.P. School, to whom the direction is issued. Writ Appeal No.466 of 2017 is filed by the additional 5[th] respondent in the writ petition, who was appointed in the vacancy of Office Attendant which had arisen on 1.12.2013, to which the writ petitioner had staked claim. W.A.Nos.459 & 460 of 2017 5 2. The brief facts leading up to the filing of the writ petition are as follows: The petitioner is the son of late Kunhiraman Adiyodi, who died-in-harness on 20.8.1991, while working as Peon in the Naduvathur U.P.School. The petitioner attained the age of 18 years on 25.5.1997. According to the petitioner, as per Ext.P1 dated 20.5.1997, he had requested the Manager to appoint him as Peon in the school. The petitioner followed up his first request by submitting Ext.P3 dated 3.5.2000 and Ext.P5 dated 8.11.2011. By Ext.P6 order dated 16.1.2012, the AEO directed the Manager to appoint the petitioner in the next arising vacancy of Office Attendant. Again, by Ext.P11 dated 16.12.2013, the DEO directed the Manager to give priority to the petitioner's claim for compassionate appointment while effecting appointment to the post of Office Attendant arising W.A.Nos.459 & 460 of 2017 6 on 1.12.2013. But, contrary to the directions and without considering the petitioner's claim, the Manager appointed the 5[th] respondent as Office Attendant in the post that had fallen vacant on 1.12.2013 consequent to the retirement of one V.P.Ramakrishnan. Aggrieved by the refusal to consider the claim for compassionate appointment, the writ petition was filed praying for the issue of a writ of mandamus directing the Manager to appoint the petitioner forthwith as Office Attendant and also to ensure that no approval is given to the appointment of any candidate other than the petitioner to the vacancy of Office Attendant that had arisen in the Naduvathur U.P.School with effect from 1.12.2013. The further prayer in the writ petition was for a direction to the Deputy Director of Education to proceed against the Manager under the provisions of Rule 7 of Chapter III of KER. W.A.Nos.459 & 460 of 2017 7 3. The averments in the writ petition and the prayers therein were stoutly opposed by the Manager and the additional 5[th] respondent. It was contended by the Manager that at no point of time had the petitioner raised a claim for compassionate appointment. That, Sri.Kunhiraman Adiyodi was survived by his wife Smt.Yesodha, a son (the petitioner) and a daughter Smt.Bavitha. Smt.Yesodha was working in the Social Welfare Department and Smt.Bavitha was employed in the Sreeramakrishna Mission School. The petitioner, after graduation, had worked in the Middle East for a considerable period of time and after his return to India, he had worked as Extra Department Staff in the Postal Department and thereafter, in a private firm. The claim of the petitioner that he had submitted Ext.P1 request as early as on 20.5.1997 was refuted. It was contended that the seal affixed in Ext.P2 W.A.Nos.459 & 460 of 2017 8 Certificate of Posting is that of Puthiyangadi Post Office, which is situated 40 Kms away from the petitioner's residence and that Ext.P3 request is seen to have been sent from the Punnassery Post Office, which is also situated 30 Kms away from the petitioner's residence. It was pointed out that a relative of the petitioner had worked in the aforementioned Post Offices and the petitioner himself had worked in the Postal Department and hence, would have managed to fabricate the Certificates of Posting. It was contended that under no circumstances could the highly belated claim of the petitioner be entertained and hence, the Manager was well within her rights in appointing the additional 5[th] respondent to the vacancy that arisen on 1.12.2013. 4. In the counter affidavit filed by the additional 5[th] respondent, the contentions of the Manager were reiterated W.A.Nos.459 & 460 of 2017 9 and it was further contended that the petitioner was and is comfortably employed, whereas the additional 5[th] respondent had crossed 36 years of age and had no chance of getting any other public employment. 5. In the counter affidavit filed by the official respondent it was contended that based on a representation received from the petitioner, the AEO had, vide order dated 16.1.2012, directed the Manager to appoint the petitioner in the next arising vacancy in the school under Rule 9A of Chapter XXIV A of KER. That, subsequently direction was issued by the DEO also, vide order dated 16.12.2013, despite which the Manager appointed the additional 5[th] respondent as Office Attendant with effect from 2.12.2013, in the vacancy that had arisen on 30.11.2013. That, the proposal submitted by the Manager for approving the appointment of the 5[th] W.A.Nos.459 & 460 of 2017 10 respondent had been rejected for that reason. 6. The learned Single Judge, after detailed consideration found that there is no acceptable evidence to substantiate the claim of the petitioner that he had submitted Exts.P1 and P3 representations, in view of the contention of the Manager as well as the Educational authorities that they had not received those representations. It is found that since the educational authorities had, by Ext.P11, directed the Manager to consider the claim raised by the petitioner in terms of Rule 9A of Chapter XXIV A, the Manager was bound to consider the claim in terms of the conditions contained in the applicable Government orders on the subject. Based on the said finding, the Manager was directed to consider the petitioner's claim; _dehors_ the delay occasioned. The 5[th] respondent's appointment and approval was made subject to W.A.Nos.459 & 460 of 2017 11 the orders to be passed by the Manager on the petitioner's claim. 7. The learned counsel for the appellants contend that the learned Single Judge, after refusing to rely on Exts.P1 and P3, went wrong in directing the petitioner's claim to be considered on the basis of Exts.P6 and P11. It is contended that the settled legal position is to the effect that compassionate appointment is provided as a means for the family of the deceased employee to tide over the sudden financial crises faced due to the death of the earning member and that belated claims for compassionate appointment should not be entertained. For this purpose, reliance is placed on **Umesh Kumar Nagpal v. State of Haryana and others** . **[(1994) 4 SCC 138]** 8. No reliance having been placed on Exts.P1 and P3 W.A.Nos.459 & 460 of 2017 12 requests in the impugned judgment, we are not called upon to consider the genuineness or otherwise of those documents. As rightly contended by the learned counsel for the appellants, if Exts.P1 and P3 are eschewed from consideration, the first request made by the petitioner was only on 8.11.2011, as evident from Ext.P6. The petitioner's father having died on 20.8.1991, the initial request is seen to have been submitted by the petitioner 20 years after his father's death. In the above factual matrix, the short point to be considered is as to whether any direction could have been issued compelling the Manager to consider the belated claim. 9. The law on the point has been succinctly laid down by the Honourable Apex Court in Nagpal’s case (supra). Dilating on the object behind compassionate appointments, the Apex Court was held as follows: W.A.Nos.459 & 460 of 2017 13 “2. .........As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is W.A.Nos.459 & 460 of 2017 14 satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.” It was also held that compassionate appointment cannot be granted after a lapse of a reasonable period which must be specified in the rules and that the consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate appointment cannot be claimed and offered after long lapse of time and after the crisis is over. 10. Recently, the Apex Court, after considering the decisions on compassionate appointment from Nagpal onwards has reiterated the legal position in **State of HP v. Shashikumar [(2019) 3 SCC 653]** . In Shashikumar’s case, the W.A.Nos.459 & 460 of 2017 15 claim for compassionate appointment was submitted on 8.5.2007 by Shashikumar, pursuant to the death of his father on 29.3.2005. The application submitted by Shashikumar was considered and a communication issued on 15.01.2008, pointing out that the income certificate which had been forwarded together with the application did not include the pension which the family was receiving from the Government. Nothing further was done by Shashikumar till 11.5.2015, on which he approached the High Court by filing a writ petition seeking the issue of a writ of mandamus directing the Government to appoint him on compassionate basis. The High Court allowed the writ petition and directed the Government to reconsider the application submitted by Shashikumar. The State went in appeal and the Apex Court, after finding that income of the family of the deceased employee is a relevant W.A.Nos.459 & 460 of 2017 16 ## criterion, dealt with the question of delay. The portion of the judgment which is contextually relevant reads as follows: “Insofar as the individual facts pertaining to the respondent are concerned, it has emerged from the record that the writ petition before the High Court was instituted on 11.05.2015. The application for compassionate appointment was submitted on 8.05.2007. On 15.01.2008, the Additional Secretary had required that the amount realised by way of pension be included in the income settlement of the family. The respondent waited thereafter for a period in excess of seven years to move a petition under Article 226 of the Constitution. In _Umesh Kumar Nagpal,_ this Court has emphasised that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the defendant in seeking compassionate appointment.” 11. The Honourable Supreme Court, in **Shreejith L. v.** **Deputy Director (Education) and others [(2012) 7 SCC 248]** , had occasion to consider the entitlement for compassionate appointment in cases where application under W.A.Nos.459 & 460 of 2017 17 Rule 9A of Chapter XXIV A of KER had been filed. In 'Shreejith', along with other issues, the Apex Court considered the issue relating to belated claims and answered the issue in the following manner: “15. …..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 W.A.Nos.459 & 460 of 2017 18 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.” The legal position being thus settled, the ancillary issue arising for consideration is as to whether the application for compassionate appointment submitted by the writ petitioner was within time or not. As held by the learned Single Judge, reliance cannot be placed on Exts.P1 and P3 applications, inasmuch as the official respondents do not admit receipt of those applications. The initial application, in such circumstances, can only be the application referred to in W.A.Nos.459 & 460 of 2017 19 Ext.P6. That application was dated 8.11.2011. Rule 9A of Chapter XXIV A of KER stipulate that Government orders relating to employment assistance to the depends of the Government servants dying in harness shall, _mutatis mutandis_ , apply in the matter of such appointments to a dependent of the non-teaching staff of an aided school dying in harness. The relevant Government order is G.O.(P) 12/99/E& ARD dated 24.5.1999. Paragraph 19 of that Government order dealing with time limit for preferring application reads as follows:- “19. The time limit for preferring applications under the scheme will be 2 years from the date of death of Govt. servants. In the case of minor, the period will be within 3 years after attaining majority.” 12. Even according to the petitioner, he attained majority on 25.5.1997. The application seeking for W.A.Nos.459 & 460 of 2017 20 compassionate appointment was filed 14 years after he became a major. The period prescribed for filing application being three years from attaining majority, it has to be held that the petitioner had submitted the application way beyond the prescribed period. That being the case, the Manager cannot be compelled to consider the belated claim. Hence, the direction to that effect in the impugned judgment cannot be sustained. 13. The learned counsel for the appellant in W.A.No.466 of 2017 points out that the only reason for rejection of the request for approval of his appointment was the failure on the part of the Manager to appoint the petitioner. It is submitted that the 5[th] respondent has been working from 2.12.2013 without approval and salary. In the light of the finding in this judgment that the petitioner had no sustainable claim for appointment, the District Educational W.A.Nos.459 & 460 of 2017 21 Officer, Vatakara shall reconsider the request for approval of the 5[th] respondent's appointment (appellant in W.A.No.466 of 2017) and pass orders in accordance with law within a period of one month from the date of receipt of a copy of this judgment. Needless to say that in the event of the appointment of the fifth respondent being approved, he would be entitled for salary and other benefits, with effect from the date of his appointment. The writ appeals are hence allowed. Consequently, the writ petition is dismissed. No order as to costs. ## **Sd/-** **K.VINOD CHANDRAN** **JUDGE Sd/JUDGE** **V.G.ARUN** Scl/6.6