W.Vimala Upper Primary High School Assistant, St. Paul’s High School, Kozhinjampara, Palakkad District v State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938 WP(C).No. 10178 of 2013 (V) ---------------------------- PETITIONER(S): ------------- W.VIMALA UPPER PRIMARY HIGH SCHOOL ASSISTANT, ST.PAUL'S HIGH SCHOOL PO,.KOZHINJAMPARA, PALAKKAD DISTRICT 678 555. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAUPRAM 695 001. 2. THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (GENERAL) THIRUVANANTHAPURAM 695 001. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 678 555 4. THE DISTRICT EDUCATIONAL OFFICER PALAKKAD PO, PALAKKAD 678 555 5. S.SHEEBA PARAPURATH HOUSE, KOZHINJAMPARA PO, PALAKKAD 678 555 6. THE MANAGER ST.PAUL'S HIGH SCHOOL, KOZHINJAMPARA 678 555 R6 BY ADV. SRI.R.HARIKRISHNAN R6 BY ADV. SRI.E.RAMACHANDRAN R6 BY ADV. SRI.R.UMASANKAR R6 BY ADV. SRI.P.ARUN KUMAR (MONCOMPU) R1-R4 BY SR. GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R5 BY ADV. SRI.BINOY VASUDEVAN R5 BY ADV. SRI.R.MANIKANTAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10178 of 2013 (V) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/6/2010 EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 19/8/2010 IN WPC 26473/2010 EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 11/6/2001 EXHIBIT P4 TRUE COPY OF THE ALLEGED APPLICATION DATED 28/5/2004 AS WELL AS ITS ACKNOWLEDGEMENT. EXHIBIT P5 TRUE COPY OF THE APPLICATION GIVEN BY THE 5TH RESPONDENT DATED 14/5/2010 EXHIBIT P5(A) TRUE COPY OF THE APPLICATION GIVEN BY THE 5TH RESPONDENT DATED 17/6/2010 EXHIBIT P5(B) TRUE COPY OF THE APPLICATION GIVEN BY THE 5TH RESPONDENT DATED 2/8/2010 EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 6/9/2010 ALONG WITH ENCLOSURES EXHIBIT P7 TRUE COPY OF THE CERTIFIED COPY OF THE MATRIMONIAL REGISTER ISSUED BY THE ST.JOSEPH'S CHURCH, PODANUR DATED 15/11/2008 EXHIBIT P8 TRUE COPY OF THE APPOINTMENT ORDERS DATED 1/7/2008,15/7/2008 & 15/9/2008 EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 8/7/2010 EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 16/8/2010 ADDRESSED BY THE MANAGER TO THE DISTRICT EDUCATIONAL OFFICER EXHIBIT P11 TRUE COPY OF THE ORDER NO.B1/4427/2010 DATED 16/11/2010 PASSED BY THE DISTRICT EDUCATIONAL OFFICER,PALAKKAD EXHIBIT P12 TRUE COPY OF THE ORDER NO.B1/4427/2010 DATED 29/12/2010 EXHIBIT P13 TRUE COPY OF THE ORDER DATED 7/12/2010 GIVEN BY THE MANAGER EXHIBIT P14 TRUE COPY OF THE APPEAL DATED 17/1/2011 FILED BEFORE THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD EXHIBIT P14(A) TRUE COPY OF THE ADDITIONAL MEMORANDUM OF APPEAL DATED 16/2/2011 EXHIBIT P15 TRUE COPY OF THE ORDER NO.K.DIS/B4/1072/2011 DATED 22/8/2011 WP(C).No. 10178 of 2013 (V) ---------------------------- 2 EXHIBIT P16 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION , THIRUVANANTHAPURAM. EXHIBIT P17 TRUE COPY OF THE COMMUNICATION DATED 5/3/2012 EXHIBIT P18 TRUE COPY OF THE COMMUNICATION NO.CCCC/UCP MISC/DIGS/2012 DATED 17/5/2012 EXHIBIT P18(A) TRUE COPY OF THE COMMUNICATION NO.CCCC/UCP MISC/DIGS/2012 DATED 17/7/2012 23/1/2013 EXHIBIT P20 TRUE COPY OF THE ORDER NO.EMI/71576/11/DPI DATED 18/2/2013 PASSED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (GENERAL),THIRUVANANTHAPURAM. RESPONDENT(S)' EXHIBITS ----------------------- EXHIBIT R5(a): COP OF GO(P).NO.12/99/P & ARD DATED 24.5.1999. EXHIBIT R5(b): COPY OF REPRESENTATION DATED 14.5.2010. EXHIBIT R5(c): COPY OF REPRERSENTATION DATED 11.6.2010. EXHIBIT R5(d): COPY OF REPRESENTATION DATED 19.7.2010 PREFERRED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. EXHIBIT R5(e): COPY OF RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER'S MOTHER. EXHIBIT R5(f): COPY OF APPOINTMENT ORDER ISSUED TO THE PETITIONER'S MOTHER. /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 10178 of 2013 ----------------------------------------------Dated this the 10[th] January, 2017** ## **JUDGMENT** The prayers in this writ petition are as follows: - _“i. Issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibits P11, P15 and P20._ - _ii. Issue a writ of mandamus directing the District Educational Officer, Palakkad to approve Exhibit P1 appointment order appointing the petitioner as Upper Primary School Assistant, Hindi (UPSA) at the St.Pauls High School, Kozhinjampara._ - _iii. Issue such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case.”_ 2. The petitioner claims that she was appointed as UPSA on 1.6.2010. Her approval was rejected on the ground that the 5[th] respondent had raised a claim for compassionate appointment under Rule 51 B of Chapter XIV-A of the Kerala Education Rules ('KER', for short). It is submitted that the 5[th] respondent's father had been working as a Drawing Teacher in the school and had passed away on 11.10.2002 after a long period of illness. The 5[th] respondent was a minor at that time. On 11.6.2001, during the illness of the 5[th] respondent's father, 2 _**WP(C).10178/13**_ her mother was appointed as L.G.Hindi Teacher on compassionate ground. 3. It is stated that the 5[th] respondent had claimed to have filed an application for appointment under the dying-in-harness scheme addressed to the Principal of the school on 28.5.2004. The petitioner as well as the Manager of the school dispute the existence of any such application. On 15.5.2010, the 5[th] respondent had raised a claim for appointment as UPSA (Hindi) on the basis of her qualification. She had, therefore, raised objections to the approval of the appointment of the petitioner on 1.6.2010. Exhibit P11 order was passed by the District Educational Officer on 16.11.2010, rejecting the approval of the petitioner's appointment on the ground that the 5[th] respondent had established her Rule 51 B claim. Though appeals were preferred by the Manager before the Deputy Director of Education, by Exhibit P15 order dated 22.8.2011, the appeals were rejected. Revision filed under Rule 8A of Chapter XIV-A of KER by the Manager was also rejected by Exhibit P21. These orders are under challenge in this writ petition. 4. Heard Advocate Smt.Nisha George, learned counsel for the petitioner, Smt.Mary Beena Joseph, learned Senior Government Pleader appearing for respondents 1 to 4, _**WP(C).10178/13**_ 3 Advocate Sri.Binoy Vasudevan, learned counsel appearing for the 5[th] respondent and Advocate Sri.R.Harikrishnan, learned counsel appearing for the 6[th] respondent. 5. It is submitted by learned counsel for the petitioner that the fact that an application had been submitted on 28.5.2004 by the petitioner had been disputed from the first instance itself by the Manager. It is stated that the claim raised by the 5[th] respondent on 14.5.2010 was highly belated in view of the fact that the petitioner had attained the age of majority in 2004. It is further stated that a reading of Rule 51 B of Chapter XIV A of KER itself would make it clear that the procedure for appointment under the compassionate appointment applicable in Government service is mutatis mutandis applicable in cases of applications under Rule 51 B. The time limit provided in the Government orders on the subject have to be adhered to in the matter of making applications. Learned counsel for the petitioner placed reliance on the decision of the Apex Court in _**Sreejith L. v. Deputy Director (Education) Kerala**_ [(2012)7 SCC 248] to contend that an application under Rule 51 B of Chapter XIV-A of the Rules has to be filed within the time stipulated for the purpose, whether or not a vacancy is available. The Apex Court held that 4 _**WP(C).10178/13**_ in the absence of any application within the time stipulated in the Government orders, the claim for compassionate appointment could not have been favourably considered. It is further submitted that the official respondents have not considered the specific contentions raised by the Manager to the effect that the claim raised by the 5[th] respondent was belated and that she was otherwise not eligible for appointment. 6. The learned counsel appearing for the Manager would also support the contentions urged by learned counsel for the petitioner. It is submitted that even in case the claim of the petitioner as a dependent of an employee who died in harness is found, such claim can be considered by the Manager only on the strength of the Government orders applicable to compassionate appointment in Government service and that the question whether the applications submitted by the 5[th] respondent satisfies the conditions prescribed by the Government is to be considered by the appointing authority, the Manager. 7. The learned counsel appearing for the 5[th] respondent as well as the learned Government Pleader would, on the other hand, contend that the claim under Rule 51 B of Chapter XIVA, 5 _**WP(C).10178/13**_ KER is a statutory claim and once it is found that the applicant is a bona fide claimant under Rule 51 B, the appointment is automatic. It is, therefore, contended that a fresh appointee can have no better claim against a Rule 51 B claimant. 8. I have considered the contentions advanced. Rule 51 B of Chapter XIV-A of the Rules read as follows: “ _51B. The Manager shall give employment to a dependent 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.”_ 9. The Apex Court in _**Sreejith's case (supra)**_ has clearly held that in view of the specific language of Rule 51B, the application for appointment under the dying-in-harness scheme is required to be filed within the period stipulated for the purpose. It is stated that the requirement of making an application within the period prescribed cannot be confused with the availability of the vacancies. It is stated in paragraph 18 of the said judgment as follows: _“18. There is considerable merit in the contention urged by Mr.Rajan. It is not in dispute that respondent 1 had attained majority on 8.5.1995 whereas the application for compassionate appointment was made on 10.9.2007. This_ 6 _**WP(C).10178/13**_ _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.”_ 10. It is, therefore, clear that even in a case where the claim raised by an applicant under Rule 51B is found to be a bona fide and valid one, such claim has to be considered by the Manager in terms of the provisions of the Rules applicable to compassionate appointment of Government employees. This is the purport of the judgment of the Apex Court cited above. 11. In the above view of the matter, Exhibit P20 order, which proceeds on the basis that once the claim under Rule 51B is found to be valid, the appointment of the claimant would be automatic cannot be countenanced. I am, therefore, of the opinion that the order of the Director of Public Instruction directing the appointment of the 5[th] respondent under Rule 51B of Chapter XIV-A of KER cannot be sustained. Exhibit P20 order 7 _**WP(C).10178/13**_ is, therefore, set aside. The Director of Public Instruction is directed to take up and consider the claim of the 5[th] respondent for appointment under Rule 51B with specific reference to the date of her first application as well as the other requirements of the Government order applicable to compassionate appointment to be made in Government service at the time of such application. Orders in this regard shall be passed by the Director of Public Instruction with notice to the petitioner and the 6[th] respondent Manager as well as the 5[th] respondent, and after hearing them, within a period of three months from the date of receipt of a copy of this judgment. Till such time, the petitioner shall be continued to be paid salary in terms of the interim order dated 26.3.2015. The writ petition is ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs12/1_