W.P.(C) Nos.13898 of 2019 & 3168 of 2021

**WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 WP(C) NO. 3168 OF 2021** ## **PETITIONER/S:** VINODAN T.M. OFFICE ATTENDANT, MUDUVANA U P SCHOOL,MUDUVANA P.O. MANIYOOR, KOZHIKODE, PIN-673523. BY ADVS. S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY SHRI.KURUVILLA SABU CHRISTY ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2 DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695014. 3 DISTRICT EDUCATIONAL OFFICER VADAKARA, KOZHIKODE DISTRICT, PIN-673101. 4 ASSISTANT EDUCATIONAL OFFICER VADAKARA, KOZHIKODE DISTRICT, PIN-673504. 5 MANAGER MUDUVANA U P SCHOOL, MUDUVANA P O, MANIYOOR, KOZHIKODE, PIN-673523. **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021 2** BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SHRI. AKASH S. SMT.A.MEGHA SRI. PREMCHAND R. NAIR, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, ALONG WITH WP(C) NO.13898/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 WP(C) NO. 13898 OF 2019** ## **PETITIONER/S:** JIJULAL L. LAL NIVAS, KALPATHOOR P.O., MEPPAYYOOR (VIA), PIN - 673 524. BY ADV P.C.SASIDHARAN ## **RESPONDENT/S:** 1 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 001. 2 THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, VADAKARA - 673 101. 3 THE MANAGER MUTHUVANA U.P. SCHOOL, MUTHUVANA.P.O., MANIYOOR, KOZHIKODE, PIN- 673 529. BY SRI. PREMCHAND R. NAIR, SR. GP BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA S.A.ANAND V.VARGHESE PETER JOSE CHRISTO THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, ALONG WITH WP(C) NO.3168/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **4** ## **JUDGMENT** W.P.(C) No.13898 of 2019 is filed by the petitioner seeking to quash Ext.P7 order issued by the Manager refusing to consider his application for appointment to the post of Peon in the Muthuvana UP school and to issue directions to the respondents to appoint the petitioner to the post of Peon under the service of the 3rd respondent. 2. W.P.(C) No.3168 of 2021 is filed by Sri.Vindodan T.M., who was appointed as an Office Attendant in the Muthuvana UP school. He contends that due to the pendency of the proceedings initiated by the petitioner in W.P.(C) No.13898 of 2019, approval of his appointment has not been granted to date and that he has been working without salary from 03.07.2015 onwards. He has sought to quash Ext.P12, P13, P15, P16 and P18 orders declining approval and sought for a direction to the respondents to approve the appointment and grant him all consequential benefits. 3. Since the facts are interconnected, these writ petitions are taken up together and disposed of by a common judgment. WP.(C) No.13898 of 2019 **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **5** shall be considered as the main case and parties and exhibits shall be referred to as in W.P.(C) No.13898 of 2019. 4. The petitioner in W.P.(C) No.13898 of 2019 contends that his mother while working as Upper Primary School Assistant (UPSA) in the Muthuvana UP School died in harness. The petitioner has passed SSLC and he was entitled to raise a legitimate claim for an appointment in a non-teaching post. When he received information that a vacancy had arisen, he submitted Ext.P1 representation before the Manager claiming Compassionate Appointment under Rule 51B of Chapter XIV-A KER. When the request of the petitioner was not considered, he approached the 2nd respondent, the controlling authority who had issued Ext.P2 order on 11.05.2015 directing the Manager to initiate appropriate steps for appointment of the petitioner under the Dying-in-Harness Scheme. The petitioner contends that seeking implementation of the directions issued by the 2nd respondent/educational authority, he submitted Ext.P3 representation. However, no action was taken. It is the case of the petitioner that the Manager proceeded to fill up the vacancy with a fresh hand totally ignoring the directions issued. In the said circumstances, the petitioner has approached this Court and filed W.P.(C) No.19838 of 2015, and this Court by **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **6** judgment dated 24.03.2017 issued directions to the 3rd respondent Manager to initiate prompt action as directed by the educational authorities. However, instead of complying with the directions, the manager is stated to have forwarded the proposal for approval of the petitioner in W.P.(C) No.3168 of 2021. In the said circumstances, the petitioner approached this Court and filed Cont. Case (C) No.1492 of 2018. The contempt case was later closed by Ext.P8 judgment. While so, the manager approached this Court by filing Writ Appeal No.1978 of 2018, and by judgment dated 13.03.2019, the appeal was disposed of directing the petitioner to challenge the order issued by the manager rejecting the claim of appointment. It is in the afore circumstances that the petitioner is before this Court seeking to quash Ext.P7 proceedings and also for a direction commanding the respondents to appoint the petitioner to the post of Peon under the service of the 3rd respondent and for incidental reliefs. 5. The petitioner in W.P.(C) No.3168 of 2021 claims that he was appointed on 03.07.2015 as an Office Attendant in the Muthuvana UP school. He contends that he was appointed as an Office Attendant in a vacancy that arose when Leave Without Allowance was availed by one Jithin Raj M. Reliance is placed on Exts.P1 to P3 and it is submitted that the petitioner had been **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **7** working in the school since then. He contends that the vacancy which arose by virtue of Ext.P1 was originally filled up by appointing Sri.Sijoosh K.K. as per Ext.P4 order of the manager. According to the petitioner, the appointment has not been approved to date and therefore he is continuing in service without salary and allowances. The reason for non-approval is the pendency of W.P.(C) No.13898 of 2019 before this Court which is filed, raising a claim under Rule 51B. According to the petitioner, the claim itself is not maintainable, and therefore, there is no justification on the part of the respondents in not approving his appointment. 6. I have heard Sri.P.C.Sasidharan, the learned counsel appearing for the petitioner in W.P.(C) No.13898 of 2019, Sri. S.P. Aravindakshan Pillay, the learned counsel appearing for the petitioner in W.P.(C) No.3168 of 2021 and the learned Government Pleader. 7. In W.P.(C) No.13898 of 2019, the 1st respondent has filed a counteraffidavit refuting the contentions advanced by the petitioner. 8. I have considered the submissions advanced. The records would reveal that the case of the petitioner in W.P.(C) No.13898 of 2019 is that his **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **8** mother was working as UPSA in the Muthuvana U.P School. Ext.P1, the application which was filed by the petitioner on 06.03.2015, would reveal that the mother of the petitioner had passed away on 24.06.1979. The manager had got a case that at the time of death, she was not even working in the school. According to the petitioner, at the time of the death of his mother, he was just six months old. He waited till he received information that a vacancy had arisen. Apparently, Ext.P1 application was filed on 06.03.2015. The very same issue had come up for consideration before the Honourable Supreme Court in Shreejith L. v. Deputy Director (Education), Kerala and Others [2012 (7) SCC 248] and it was held as follows in paragraph Nos.9,10,11,14 and 15 of the judgment : 9. Appointments on compassionate basis are recognised as a permissible mode of induction into service under the Kerala Education Rules framed under the Kerala Education Act. Rule 9A appearing in Chapter XXIVA and Rule 51B appearing in Chapter XIVA of the said Rules are relevant in this regard. While Rule 9A deals with employment of dependants of the nonteaching staff of an aided school dying-in-harness, Rule 51B deals with employment of dependants of an aided school teacher dying-in-harness. The said rules are as under:- '9A: The manager shall give employment to a dependant of the non- **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021** **9** teaching staff of an aided school dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointment.' '51B: The Manager shall give employment to a dependant of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments.' 10. It is evident from a plain reading of the above that appointments under the statutory rules are further regulated by the terms of government orders issued on the subject. Government order dated 24th May, 1999 is in this regard relevant, for it stipulates the conditions of eligibility including the family income and the category of appointments that can be made under the compassionate scheme. Qualification for the post, age limit for making appointments and time for filing applications for compassionate appointments are matters regulated by the said order. Para 19 of the Government order stipulates the period of limitation for preferring applications and may be extracted: '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.' 11. A conjoint reading of the Statutory Rules and para 19 of the Government Order extracted above would show that the compassionate **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021** **10** appointment scheme itself permits applications to be made within two years from the date of death of the government servant. In the case of minors the permissible period for making applications is three years from the date the minor attains majority. It is not in dispute that the application for appointment as a Lower Grade Sanskrit Teacher was made by the respondent on 7th February, 2005 i.e. within three years of his attaining majority. Such being the position under the terms of the scheme, the validity or wisdom whereof is not under challenge before us, it is manifest that the scheme not only permitted making of an application but when read in conjunction with Rule 9A entitled respondent No.5 to seek such an appointment subject to his fulfilling other requirements stipulated in the scheme. It is nobody’s case that respondent No.5 did not satisfy other conditions stipulated in the Government Order nor was his request for appointment as Junior Grade Sanskrit Teacher rejected on any such ground. That being so, the High Court was justified in holding that the prayer for appointment made to respondent No.5 should have been allowed. ## xxxx 14. Appearing for the appellant it was contended by Mr. Rajan that the application filed by respondent No.1 was belated inasmuch as the same was filed 12 years after her attaining majority. He submitted that during the intervening period respondent No.1 had got married which clearly showed that the family was not in penury to call for any sympathy towards it. The High Court had according to Mr. Rajan, fallen in error in holding that delay in the filing of the application was only technical in nature as the vacancy against which the prayer for compassionate appointment had been made **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021** **11** had occurred after about 13 years of the demise of the father of respondent No.1. 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 8th of May, 1995 whereas the application for compassionate appointment was made on 10th 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. **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **12** 9. The Apex Court, while elaborating on the scope and ambit of Rule 51B, observed that a plain reading of the provision would show that the statutory rules are further regulated in terms of the Government Orders issued on this subject. Referring to the Government Order dated 24.05.1999, the Apex Court observed that the time limit for preferring the applications under the scheme will be two years from the date of death of a Government servant. In the case of minors, the period will be within three years after attaining a majority. In W.P.(C) No.13898 of 2019, the application for compassionate appointment was filed about 35 years after the death of the mother and almost 18 years after the petitioner had attained majority. Of course, the learned counsel appearing for the petitioner has a contention that he had waited till a vacancy had arisen. However, the Apex Court, while considering the said issue, had held that the application is required to be filed within the time stipulated in the Government Order and the same cannot be confused with the availability of vacancy against which such an application could be considered by the manager. The applicant was in fact bound to file the application within the time stipulated in the Government order and in terms of Rule 51B. In view of the law settled by the Apex Court, the claim lodged by the dependent under Section 51B cannot **WP(C) Nos.13898 OF 2019 & 3168 OF 2021** **13** be sustained. 10. In that view of the matter, I am of the considered opinion that the petitioner in W.P.(C) No.13898 of 2019 has not made out any grounds for interference by this Court. The Writ petition will stand dismissed. 11. The only reason for non-grant of approval of the appointment of the petitioner in W.P.(C) No.3168 of 2021 is the pendency of the claim raised by the 51B claimant. Now that the writ petition has been dismissed, the petitioner is entitled to succeed. Exts.P12, P13, P15, P16 and P18 will stand quashed and there will be a direction to the respondents to approve the appointment of the petitioner in W.P.(C) No.3168/2021 as Office Attendant in terms of Exts.P5 to P7 orders and grant all consequential benefits. A decision shall be taken expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021** **14** ## **APPENDIX OF WP(C) 13898/2019** PETITIONER(S) EXHIBITS : EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 06/03/2015. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11/05/2015. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 31/05/2015 SUBMITTED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 31/05/2015 OF THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 24.03.2017 IN WP(C) NO.19838 OF 2015. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 07.12.2017. EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 24/5/2017. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN CONT.CASE NO.1492 OF 2018. EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.A. NO.1978 OF 2018. RESPONDENT(S)EXHIBITS : Exhibit R3(a) TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD Exhibit R3(b) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN W.A NO.1978/2018 ALONG WITH C.M.APPL NO. 1/2018 Exhibit R3(c) TRUE COPY OF THE JUDGMENT DATED 09/04/2021 IN CIVIL APPEAL NO. 897/2021 OF THE HONOURABLE SUPREME COURT OF INDIA Exhibit R3(d) TRUE COPY OF THE JUDGMENT DATED 29/08/2018 IN W.P(C) 37633/2017 OF THIS HON'BLE COURT. Exhibit R3(e) TRUE COPY OF THE LETTER NO. A3-8187/18 DATED 15/10/2018 OF THE STATE PUBLIC INFORMATION OFFICER AND SECRETARY, PERAMBRA GRAMA PANCHAYATH ISSUED TO SRI.VINODAN T.M. **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021** **15** ## **APPENDIX OF WP(C) 3168/2021** PETITIONER(S) EXHIBITS : |EXHIBIT P1|TRUE COPY OF THE ORDER SC(1)25803/13/DPI| |---|---| ||DATED 17/04/2013 OF THE SENIOR| ||ADMINISTRATIVE OFFICER IN THE OFFICE OF THE| ||2ND RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE ORDER SC(3)/13123/2018/DPI| ||DATED 05/04/2018 OF THE SENIOR| ||ADMINISTRATIVE OFFICER IN THE OFFICE OF THE| ||2ND RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||01.01.2008 OF THE 5TH RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||20/05/2013 OF THE 5TH RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||03.07.2015.| |EXHIBIT P6|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||01.04.2016.| |EXHIBIT P7|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||20.04.2018.| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED 24.03.2017| ||IN WPC NO. 19838/2015 OF THIS HON'BLE| ||COURT.| |EXHIBIT P9|TRUE COPY OF THE ORDER DATED 24.05.2017 OF| ||THE 5TH RESPONDENT.| |EXHIBIT P10|TRUE COPY OF THE JUDGMENT DATED 31.10.2018| ||IN CONTEMPT CASE(CIVIL) NO.1492/2018 OF| ||THIS HON'BLE COURT.| |EXHIBIT P11|TRUE COPY OF THE JUDGMENT DATED 13.03.2019| ||IN WRIT APPEAL NO. 1978 OF 2018 OF THIS| ||HON'BLE COURT.| |EXHIBIT P12|TRUE COPY OF THE ORDER NO.K.DIS B/2092/15| ||DATED 22.08.2016 OF THE 4TH RESPONDENT.| |EXHIBIT P13|TRUE COPY OF THE ORDER NO. K.DIS| ||B5/7233/2016 DATED 22.02.2017 OF THE 3RD| ||RESPONDENT.| |EXHIBIT P14|TRUE COPY OF THE APPEAL DATED 09.03.2017| ||FILED BY THE MANAGER AGAINST EXTS. P12 AND| ||P13, WITHOUT ITS ENCLOSURES.| |EXHIBIT P15|TRUE COPY OF THE ORDER NO.K.DIS B/1297/2016| ||DATED 07/12/2017 OF THE 4TH RESPONDENT.| |EXHIBIT P16|TRUE COPY OF THE ORDER NO.K.DIS| ||B5/10054/2017 DATED 05.10.2018 OF THE 3RD| **WP(C) Nos.13898 OF 2019** **& 3168 OF 2021** **16** RESPONDENT. EXHIBIT P17 TRUE COPY OF THE APPEAL DATED 23.12.2017 FILED BY THE MANAGER AGAINST EXTS.P15 AND P16 BEFORE THE 2ND RESPONDENT. EXHIBIT P18 TRUE COPY OF THE ORDER NO. K.DIS B/1611/2018 DATED 16.03.2019 OF THE 4TH RESPONDENT. EXHIBIT P19 TRUE COPY OF THE APPEAL DATED 05.04.2019 FILED BY THE MANAGER AGAINST EXTS.P18 BEFORE THE 3RD RESPONDENT. EXHIBIT P20 TRUE COPY OF THE LETTER NO.B3/9744/19/K.DIS DATED 30.10.2019 OF THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. RESPONDENT(S) EXHIBITS : NIL