(2012) 251 KLR 766 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934 WP(C).No. 30021 of 2011 (C) --------------------------- PETITIONER(S): ------------- V.E.MOYI HAJI, MANAGER, CORPORATE SCHOOLS UNDER THE MUKKOM MUSLIM ORPHANAGE COMMITTEE REGD, MUKKOM, KOZHIKODE DISTRICT. BY ADVS.SRI.M.R.ANISON SMT.K.P.GEETHAMANI SMT.P.A.RINUSA SMT.ANNIE JACOB RESPONDENT(S): -------------- 1. STATE OF KERALA, REP BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT 673 560. 3. FASNA T.V, D/O.LATE T.V.MOHAMMED MASTER, CRESENT HOUSE, PANDANILAM PO, KUNNAMANGALAM, KOZHIKODE DISTRICT, PIN-673 571. R1 & R2 BY ADVS.SMT.LOWSY.A, GOVERNMENT PLEADER ADVS. SRI. V.A. MUHAMMED ADVS.SRI.K.E.HAMZA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2011 ALONG WITH WPC. 32889/2011, THE COURT ON 21-05-2012 DELIVERED THE FOLLOWING: DG WP(C).No. 30021 of 2011 (C) APPENDIX PETITIONER(S) EXHIBITS:
RESPONDENTS' EXHIBITS:
//TRUE COPY// P.A.TO JUDGE DG T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.30021/2011-C & 32889/2011-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of May, 2012 Head Note:- Kerala Education Rules, 1959 - Rule 51B of Chapter XIV A - dying in harness scheme - There was no communication by the Management to the claimant about the occurrence of vacancy and no request was made to the dependant to submit an application. Actually, if there was such a direction and the applicant had failed to submit the application in time alone, the Manager can take a contention that there is delay in submitting the application. Mere defects in the application, if any, will not make the application invalid as opportunities can be given to cure the alleged defects, if any. Therefore, the view taken by the Government in Ext.P11 cannot be said to be illegal or arbitrary or unreasonable. J U D G M E N T These writ petitions respectively are filed at the instance of the Manager of an aided school and the claimant under Rule 51B of Chapter XIV A Kerala Education Rules for appointment. The Government by Ext.P11 order produced in W.P.(C).No.30021/2011 directed the Manager to appoint the claimant in terms of Rule 51B and she is seeking implementation of the said order in W.P.(C).No.32889/2011. 2. The question which emerges for consideration is whether the application filed by the claimant, namely, the petitioner in W.P.(C). No.32889/2011, who is the third respondent in W.P.(C).No.30021/2011, is belated. The Management has got a further case that the claimant at the time of the date of death of the parent was not having the qualification for appointment as Teacher and waited till the acquisition of B.Ed qualification and this circumstance also will have its own bearing in the matter. 3. I shall refer to the facts of the case as stated in W.P.(C). No.30021/2011. The Manager represents a Corporate Educational Agency under the name "Mukkom Muslim Orphanage Committee". They are having several educational institutions which are being conducted for the welfare of the inmates of the Orphanage. It is stated that there are 1350 inmates in the Orphanage which was started in the year 1956. It is mentioned in para.2 of the writ petition that the Orphanage was graded as the best one in India for the years 1983 and 2009 and one of the inmates successfully got through the Civil Services Examination for the year 2011. It is also stated that in the matter of appointment of staff top priority is being given to the inmates of the Orphanage and a list of such appointees is produced as Ext.P4. Ext.P5 is a list of appointees during the year 2010-11, out of which two have been appointed in the post of High School Assistants. 4. The third respondent's father was the Principal of M.A.M.T.T.I, Mukkom, who died on 8/1/2008 while in service. According to the Management, the financial position of the family is very sound. Ext.P6 is the copy of G.O.(P).No.12/99/P&ARD, dated 24/05/1999 which contains the guidelines for compassionate appointment which have been made applicable going by Rule 51B of K.E.R. Clause 19 therein stipulates two years time limit for preferring an application under dying-in-harness scheme in an aided school. 5. It is alleged that as on the date of death of the third respondent's father, she was only a graduate and the application was submitted on the acquisition of B.Ed on 30/04/2010 which was received by the Manager on 15/05/2010 by registered post. It is averred in para.9 that the application was rejected by the petitioner-Manager by proceedings dated 19/07/2010 (Ext.P7). 6. The present controversy arose from that stage. Ext.P8 is a communication by the District Educational Officer to the Management directing to appoint the third respondent. The Government later issued a letter as per Ext.P9 to the District Educational Officer to initiate action against the Manager for not implementing the direction by the District Educational Officer, contained as Ext.P8. The parties took up the matter before this Court in W.P.(C).No.1442/2011 filed by the Management and W.P.(C).No.30311/2010 filed by the claimant which were disposed of by Ext.P10 Judgment. Therein, the Government was directed to reconsider the matter after hearing the parties and to take a fresh decision. 7. In W.P.(C).No.32889/2011 filed by the claimant, it is averred that the application was submitted on 30/04/2010 along with all required documents produced as Exts.P1 to P1(l) with a copy to the District Educational Officer, Thamarassery. It is also averred that overlooking the claim of the petitioner, the Manager appointed respondents 5 and 6 as High School Assistants (Social Studies) from 01/06/2010 onwards. The application submitted by the petitioner has not been rejected by the Manager but he has only sent a report to the District Educational Officer as Ext.P3 (Ext.P7 produced in W.P.(C).No.30021/2011). It is pointed out that on the basis of the report of the District Educational Officer, the Government issued Ext.P4 letter (Ext.P9 produced in W.P.(C).No.30021/2011. 8. It is submitted that the claimant satisfies all the criteria. The income limit prescribed was Rs.3 lakhs as per G.O.(P).No.37/2002/P&ARD dated 15/07/2002. The same stood enhanced by the Government to Rs.4.5 lakhs as per G.O.(P).No.14/10/P&ARD dated 12/04/2010, which was applicable at the time of the date of application of the claimant. 9. Heard the learned Senior Counsel for the Manager Smt.V.P.Seemanthini and Shri K.E.Hamsa learned counsel appearing for the claimant and the learned Government Pleader Smt.Lowsy A. 10. The learned Senior Counsel for the petitioner in W.P.(C). No.30021/2011 submitted that the view taken by the Government in Ext.P11 order cannot be supported. Rule 51B of Chapter XIV A K.E.R makes applicable the various Government Orders and the usage of the word "shall" makes the conditions of the Government Order, namely, Ext.P6 herein mandatory. It is submitted that clause 19 of Ext.P6 Government Order prescribes a time limit of two years for making an application by the dependant for employment assistance and herein the application is submitted after two years and, hence, it could not have been entertained at all. The learned Senior Counsel also invited my attention to the fact that various appointments made by the Management have been kept without approval merely for the reason of the claim raised by the third respondent which itself is illegal. A list of appointees awaiting such approval has been produced as Ext.P13. It is submitted that various claimants under Rule 51B have been appointed by the Management from time to time. It is also one of the contentions of the petitioner that the claimant does not satisfy the other conditions, especially, with regard to the income limit. 11. Various Judgments of this Court and that of the Supreme Court have been relied upon by the learned Senior Counsel in support of the above argument. My attention was invited to the following decisions: Deepak v. Secretary, General Education Department [2002 (3) KLT 288], Manager, Parli High School v. Narayanan [2002 (3) KLT 912], Corporate Manager, Diocese of Thrissur v. Jayanarayanan [2003 (1) KLT SN. Case No.45 Pg.33], Sreeja v. Chief Postmaster General [2001 (1) KLT 356], Union of India v. Kumaran [1998 (2) KLT 166], Priyesh Vasudevan v. Shameena [2005 (4) KLT 1003], Umesh Kumar Nagpal v. State of Haryana and others [(1994) 4 SCC 138], Bhawani Prasad Sonkar v. Union of India and others [(2011) 4 SCC 209], Santosh Kumar Debey v. State of Uttar Pradesh and others [(2009) 6 SCC 481], General Manager, Corporate Educational Agency of Discalced v. State of Kerala and others [2007 (3) KLT Suppl.Pg.32]. 12. Shri K.E.Hamsa learned counsel appearing for the petitioner- claimant in W.P.(C).No.32889/2011 submitted that the various other Judgments of this Court have held that the right conferred in Rule 51B is statutory. The Manager will have to inform the claimant about the existence of vacancy and the said obligation of the Manager has never been complied with in this particular case. It is submitted that clause 19 of the Government Order [G.O.(P).No.12/99/P&ARD, dated 24/05/1999] has been held directory by this Court. It is also submitted that the scheme under Rule 51B being one for benefit of the dependant of the teacher, the only question is whether the application has been submitted within a reasonable time after the Manager informs about the vacancy. He drew support from various decisions of this Court, namely, Baiju Kumar v. D.E.O., Trivandrum [2003 (3) KLT 240], S.N.G.S High School v. Reji Sagar and others [2008 (1) KLT 1026], Snineesh v. State of Kerala [2009 (4) KLT 719], Soopy Haji v. State of Kerala [2009 (3) KLT 142] and the Judgments in Writ Appeal Nos.688/2008 and connected cases, W.A.No.1164/2005, W.A.No.2211/2008, W.A.No.2791/2009 and W.P.(C).No.21384/2009. Learned counsel therefore, submitted that the view taken by the Government herein is perfectly legal and valid. It is submitted that the Manager has been taking an adamant attitude not to recognize the claim inspite of the fact that the petitioner's father was the Principal under the very same Management. The two appointments itself have been made only after the receipt of the application. Apart from the same, the learned counsel also pointed out that herein the Manager never rejected the application on the plea that it was not submitted within two years. My attention was invited to Ext.P7 produced in W.P.(C).No.30021/2011 which is a report forwarded by the Manager to the District Educational Officer. It is submitted that a reading of the same will show that it does not reflect a rejection of the application and only certain alleged defects alone have been pointed out. At no point of time the Manager has communicated any decision rejecting the application of the claimant. Ext.P7 submitted before the District Educational Officer is after the receipt of Ext.P8 communication from the District Educational Officer to see that the petitioner in W.P.(C).No.32889/2011 is appointed. It is therefore, submitted that there are no bona fides in the disputes later raised by the Manager, which are clearly an after thought. 13. Various decisions of this Court relied upon by both sides have considered the impact of Rule 51B under different circumstances. I shall first consider the question whether the application filed by the claimant herein is hit by clause 19 of the relevant Government Order, namely, Ext.P6 produced in W.P.(C).No.30021/2011. The said Government Order contains the scheme for compassionate appointment of the dependants of Government servants who died in harness. In the light of Rule 51B, the provisions of the said Government Order have been made applicable to appointments of dependants in aided schools. Clause 19 therein reads as follows: "The time limit for preferring applications under the scheme will be 2 years from the date of death of Government Servants. In the case of minor, the period will be within 3 years after attaining majority." Thus, in respect of an aided school a period of two years from the date of death of the teacher and three years in the case of minor after attaining majority is the time limit for preferring the application by the dependant. 14. One thing that is discernible from the said clause is that no consequence is provided if at all there is a delay in filing the application. 15. Therefore, first we will have to understand the way in which the Government has approached the said question in Ext.P11. Therein, the Government is of the view that:- (a) mere delay in the application will not be a mitigating circumstance for absolving of the Management to offer an entitlement under Rule 51B, especially when the statute prescribes no such minimum period; (b) the executive order G.O.(P).No.12/99/P&ARD, dated 24/05/1999 which prescribes two years time limit from the date of death of the employee cannot be construed inconsistent with the substantive provision of the relevant statute, provided there is no unreasonable delay in making the application, and that the Manager should have offered a vacancy to the immediate family of the deceased, or have reserved a vacancy till such mandatory time limit expires; (c) G.O.(P).No.12/99/P&ARD, dated 24/05/1999 does not restrain the appropriate authorities to condone delay in case of Government servants by following the procedure in Circular No. 6678 / Adv.C2 / 2004 / P&ARD dated 18/05/2004; (d) Rule 51B is a benevolent legislation and, hence it cannot be denied to any legitimate applicant unless there is compelling evidence otherwise; (e) the deficiency in application or requisite documents will not lead to disentitlement of the claim. Therefore, the Government was mainly of the view that even if there is some delay, the same can be condoned and it is not fatal and it is in the above factual background, the principles will have to be assessed. 16. Smt.Seemanthini, learned Senior Counsel further pointed out that many of the earlier Judgments of this Court have considered the principle that there should be some proximity with the date of death of the employee as well as the date of application and said principle also will have application here. 17. In fact, I had an occasion to consider the entire statutory scheme in the Judgment in W.P.(C).No.21384/2009 produced along with counter affidavit of the third respondent as Ext.R3(o) in W.P.(C). No.30021/2011. The views taken by the various Benches of this Court in the decisions cited herein have been discussed therein. The said Judgment has become final as the writ appeal filed against the same, namely, W.A.No.2791/2009 stands dismissed by Judgment dated 20/08/2010. 18. I shall now examine the principles stated in various decisions relied on by the learned Senior Counsel for the petitioner in W.P.(C). No.30021/2011. First of the decisions is Deepak v. Secretary, General Education Department [2002 (3) KLT 288]. Therein Rule 51B came up for consideration. The facts of the case show that the date of death was 07/02/1978 and the application was on 05/01/1999. There, the question whether, there should be some proximity between the date of death as well as the date of application was considered. In the light of the above factual situation it was held as follows in para.6:- "The object and purpose of introduction of Rule 51B as well as the other scheme for compassionate appointment is to give some assistance to the family of the employee to tide over the sudden crisis due to the untimely death of the earning member. ....." Various decisions of the Apex Court have been referred to and finally, it was held as follows: "We are of the view if an application is made for compassionate appointment, there must be some proximity between the date of death as well as the date of application. ..... " Finally, the claim was rejected in the following words in para.7:- ".......... We are informed that Government has issued order dated 24/05/1999 recently fixing two years as the time limit for making application for appointment on compassionate ground. As far as the present case is concerned, evidently the application has been made after a period of twenty-one years after the death of the mother of the applicant. We may indicate there is no proximity with the date of death of the mother and the date of application made by the dependant applicant. ......" 19. The next is by another Division Bench in Manager, Parli High School v. Narayanan [2002 (3) KLT 912] wherein the above Judgment was also referred to. The facts of the cases considered by the Division Bench also show that therein, the time lag between the date of death and the time of application are 16 years, 14 years etc. Rule 51B came up for consideration in the said case also. The question whether there should be a proximity between the date of death of the employee and the date of application was considered in para.11. The Division Bench in para.11, after referring to the Deepak's case (supra) held as follows: "............. In the light of the decisions of the Supreme Court there cannot be any doubt that right conferred on the dependants of the deceased employee for compassionate appointment is neither absolute nor unlimited. The above principle has to be read into the executive orders as also statutory provisions governing such appointments. This requirement has been duly emphasised in Ganesan v. State of Kerala also. In the instant case the provision that governs the right of appointment is R.51B. Though this Rule did not initially prescribe any time limit for making a claim for compassionate appointment, the Government order in its modified form which has to be read as part of the above Rule, has incorporated a provision prescribing time limit vide para 19 of G.O.(P)12/99/P&ARD dated 24.5.1999. Supreme Court has held that there cannot be reservation of a vacancy till such time as the dependent becomes a major after a number of years. In that view of the matter a provision which does not prescribe a time limit may not stand the test of law. Hence considering the object of a statutory provision like R. 51B we are of the view that requirement of the time limit has to be read into the said Rule, as it stood prior to the date of issuance of the modified Govt. Order in G.O.(P) No. 12/99/P&ARD dt. 24.5.1999. ..............." Actually, the Bench was considering the cases where the death occurred prior to the introduction of G.O.(P).No.12/99/P&ARD, dated 24/05/1999. The Bench was mainly of the view that there should be proximity between the date of death of the employee and the application for compassionate appointment. 20. In Corporate Manager, Diocese of Thrissur v. Jayanarayanan [2003 (1) KLT SN. Case No.45 Pg.33], the view taken is the following: "Admittedly the first respondent did not submit the application within two years from the date of death of his mother. Even if it is considered that the first respondent was only 17 years of age when his mother died, he did not raise his claim in the prescribed form within three years after attaining majority. Hence, in the light of the provisions contained in Government Order dated 24.5.1999, the first respondent's claim for employment assistance under the dying in harness scheme cannot be considered. Therefore, the denial of employment assistance to the first respondent on the ground that the application was highly belated, cannot be said to be arbitrary or unjust." That was a case where the claim was not raised within three years after attaining majority, which is noticeable. 21. The next one is by another Division Bench in Sreeja v. Chief Postmaster General [2001 (1) KLT 356]. It was a non statutory scheme applicable to the Postal Department. Therein, the petitioner was 10 months old when the mother died and the application was submitted after the petitioner became a major. It was held that:- "......... Evidently, the family has got over the sudden crisis befallen on them due to the death of the bread winner. Over and above, there is no evidence to show otherwise. The mere statement by the petitioner that she has no means to make her livelihood or that she is in need of a job is not sufficient to make a claim for compassionate appointment. The burden is on the person who claims compassionate appointment to show even though the bread winner died on 04/11/1979, for the last two decades the family is still in penury and without any means of livelihood. ........" 22. In Union of India v. Kumaran [1998 (2) KLT 166], the Division Bench took the view that the right of a dependant for getting appointment on compassionate basis is not a vested right. The scheme was for appointment in public service viz. General Reserve Engineering Force (GREF) and the view taken is that the compassionate appointment can be granted only to tide over the immediate financial crisis resulting from the employees death and the same cannot be insisted upon as a matter of course. 23. In Umesh Kumar Nagpal v. State of Haryana and others [(1994) 4 SCC 138] the Apex Court took the view that "the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over". Therefore, therein also, the proximity principle was applied. 24. In Santosh Kumar Debey v. State of Uttar Pradesh and others [(2009) 6 SCC 481] it was held in paras.11 and 12 thus:- "11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over the financial constraints. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. ........." 25. In Bhawani Prasad Sonkar v. Union of India and others [(2011) 4 SCC 209] these principles were reiterated in para.20, which are extracted below: "Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts." 26. The clause 19 of the guidelines was subject matter of consideration in General Manager, Corporate Educational Agency of Discalced v. State of Kerala and others [2007 (3) KLT Suppl.Pg.32] . Therein the application was filed by the claimant beyond 3 years after attaining majority. The date of death was 09/10/1989 and the claimant attained majority on 22/05/1997. It appears that the application was submitted on 15/05/2002 when a vacancy arose. In that context, the Division Bench in para.3 held as follows: "........ Time limit mentioned in clause 19 has to be strictly applied, especially in the case of compassionate appointment." and reliance is placed on the Judgment in Deepak's case [2002 (3) KLT 288]. In para.4 it was held that "clauses 19 and 20 have to be interpreted strictly". 27. When we analyse these decisions, it can be seen that the proximity principle was mainly put forth in opposing the claim of the applicants. The decisions of the Division Benches in Deepak's case [2002 (2) KLT 288] and Manager, Parli High School's case [2002 (3) KLT 912] actually considered the cases prior to the introduction of Ext.P6 Government Order. In later decisions of this Court, as I have already referred to, the fact that the right under Rule 51B is statutory in nature and the situation available in Government services as well as in Public Services is in contra distinction to aided schools has been analysed. As far as non statutory scheme for appointment in Government/Public services is concerned, a time limit was thought of and the proximity principle was applied after noticing the fact that in such services vacancies may be arising from time to time, which is not the case as far as aided schools are concerned. The date of occurrence of vacancy in an aided school is only known to the Manager. It is in that context, the issue will have to be considered, which is the considered view taken in most of decisions of this Court starting from Baiju Kumar's case [2003 (3) KLT 240]. 28. A learned Single Judge of this Court in Baiju Kumar's case [supra] considered the statutory scheme under Rule 51B and the difference in approach to be made in the matter. In para.7, the following principles were laid down. "7. A number of cases are coming up before this Court under R.51B of Chap.XIVA of the K.E.R. The Managers in most of the cases contend that the application was not submitted in time, it was not in the prescribed format etc. All these contentions illcome from the mouth of the Manager in the light of the mandatory provision in R.51B which says that the Manager shall give employment to a dependent of an aided school teacher dying in harness. When a teacher of his school dies, it must be presumed that the Manager knows who are the dependents and whether anyone of them is eligible for appointment. Going by the provisions of the Act and Rules, he has to offer appointment to them whenever a suitable vacancy arises. He cannot take shelter behind the plea that the dependent did not apply in time etc. The Manager alone knows, when the vacancy arises. It is impossible for the dependent to keep track of the vacancies that may arise in a school or schools under the management. The claimant cannot know whether anybody else is appointed overlooking his claim. The Manager can inform the dependent about the vacancy and direct him to apply in the prescribed format within a time frame. Atleast these positive actions can be implied from the mandatory words of R.51B. It cannot be read down to mean that only if the dependent applies in time and pesters him, he need act under R.51B. In the absence of provisions containing procedures or orders for filling up the lacunae, this grey area is a breeding ground for so many disputes and litigations. I think the Government should bestow its attention to this aspect." Therefore, as far as the right of a claimant under the mandatory provision under Rule 51B is concerned, this Court was of the view that since the Manager alone knows when the vacancy arises, he will have to take the following steps (a) inform the dependant about the vacancy; (b) direct him to apply in the prescribed format within a time frame; (c) Rule 51B cannot be read down to mean that only if the dependant applies in time, the Manager need act under Rule 51B. Specifically it was held that the Manager cannot take shelter behind the plea that the dependant did not apply in time if he has not offered the appointment. This Court considered the Judgment of the Division Bench in Deepak's case (supra) and the principles stated by the Apex Court in various cases starting from State of Haryana v. Umeshkumar Nagpal [(1994) 3 SC 525] in para.11 and the differences in approach to be made have been explained thus: "........... The Manager of an aided school can appoint any person having the prescribed qualification. Merit is never a criterion for many educational agencies. In most of the schools, appointments are made on other considerations. Only a very few managements are concerned with the merit of the candidates. So the provisions of Arts.14 and 16 are not applicable while making appointment to the vacancies in aided schools. Therefore, the observations made by the Apex Court are not applicable to the appointments on compassionate ground in aided schools with its full vigour. Apart from that, the right to get appointment in an aided school on compassionate ground is not a concession granted by any executive order. It is a statutory right. The executive orders governing appointment on compassionate ground in public services is incorporated in the Rule by adoption. It is legislation by reference (See the decision in Mahindra and Mahindra Ltd. v. Union of India (1979 (2) SCC 529). Unless R.51B and the relevant orders which form part of that Rule are challenged, the Manager cannot rely on the general observations of the Apex Court to reject the claim of an applicant under R.51B." Significantly, therefore, it was held that the right to get appointment in an aided school on compassionate ground is not a concession granted by an executive order. It is a statutory right. 29. The above view of the learned Single Judge was upheld by a Division Bench in W.A.No.1164/2005 wherein the various issues were considered elaborately. Therein also, the Manager contended that there was some delay. In that case, the application was not made strictly within the two year period provided under clause 19. Therein, the date of death was on 24/10/1999, a vacancy arose on 01/04/2002 and the application was submitted on 14/08/2002. The Division Bench considered the interpretation of Rule 51B, especially in the light of the procedure prescribed under Rule 51A also. In para.6, the view taken in Baiju Kumar's case [2003 (3) KLT 240] was upheld and it was further held thus: "...........Since provisions like the one under Note 2 of Rule 51A regarding sending of registered notices are absent in Rule 51B the learned Single Judge expressed the hope that the Government would bestow its attention to those aspects referred to above. Apparently nothing has been done by the Government. Be that as it may, even in the absence of any specific procedure regarding registered notice, prescribed time etc., in view of the mandatory expressions used in Rule 51B of Chapter XIV-A KER, it is fairly clear that it is the duty of the Manager to request the dependants of a deceased aided school teacher to apply in the prescribed format as and when a vacancy arises. If only there is no response from the dependant within a reasonable time as noted in the request, the Manager would be in a position to make appointment from the open market ignoring the statutory claim available to the dependant. In case of ineligibility or if the application otherwise does not require consideration, the Manager has to enter a finding and inform the applicant accordingly. Then alone the Manager can proceed to make appointment ignoring the statutory claim. The benevolent piece of legislation would get force and life only if such an interpretation as above is given." Further, the decision of a Division Bench in Corporate Manager, Diocese of Thrissur's case [2003 (1) KLT SN. Case No.45 Pg.33] was explained in para.7 and it was held that the same was rendered on the peculiar facts of the said case. 30. Therefore, the view taken by the Division Bench, above, is that the Manager will have to request the dependant as and when the vacancy arises to submit the application and if there is no response from the dependant within a reasonable time, the Manager can make appointment from open market. SLP No.18645/2006 filed against the said Judgment was dismissed as per order dated 24/11/2006 by the Supreme Court. These two decisions came up for consideration before another Division Bench in S.N.G.S High School's case [2008 (1) KLT 1026] in a similar matter under Rule 51B. The Bench was significantly of the view in para.7 that the general principles stated by the courts concerning the appointment under the dying-in-harness scheme in Government service have no application while considering the matter under the Kerala Education Rules. The following findings were rendered in that context in para.7 "We notice that the right of the dependent of a teaching staff or a non-teaching staff, who died in harness, is a statutory right. It is not a concession granted to the dependents. Whenever there is a vacancy, the Manager has to make the appointment. So, he should alert the dependents of the deceased employee regarding the occurrence of the vacancy, so that any one among them who is qualified, can apply for the post. If there is any defect in the application, the Manager has to give the applicant time to rectify the mistake and thereafter, he should appoint him. The general principles stated by the courts concerning the appointment under the dying-in-harness scheme in Government service have no application here. A vacant post in the Government will have to be filled up by inviting applications and giving every one a chance to apply, in accordance with the Rules governing appointment to such posts. The mandate of Arts.14 and 16 of the Constitution of India compels to follow the above course. The appointment of the dependent of an employee, who died in harness is an exception to the above rule and is a concession granted by the Government. The said right should be exercised, subject to the mandate of Arts.14 and 16 of the Constitution of India. But, if a vacancy arises in an aided school, no advertisement is made and no selection is made from among the best candidates, who apply pursuant to the advertisement. The Manager appoints a person of his choice. So, the principles laid down by the courts relating to appointment under the dying-in-harness scheme in public services cannot be mechanically imported or applied to the appointments under R. 51B or R.9A in an aided school." After referring to Baiju Kumar's case [2003 (3) KLT 240] it was noticed by the Bench that in W.A.No.1164/2005 supra, the said Judgment was approved and that the Special Leave Petition was also dismissed. The Bench reiterated the view taken in W.A.No.1164/2005. The various decisions of the Apex Court laying down the principle that the claim should be made for immediate succour of the family were also considered and the same were distinguished in the following words: "...........vancancies in aided schools arise only occasionally. Therefore, the principles laid down by the Apex Court concerning appointment to public services under the dying-in-harness scheme, like grant of appointment, immediately after the death of the bread-winner to bring immediate succour to the family etc., are not applicable and unworkable, as far as aided schools are concerned." Thus it was held that those principles may not be workable as far as aided schools are concerned. These decisions were later considered by a Division Bench in common Judgment in W.A.Nos. 688, 706, 736 and 761 of 2008 and the legal position was reiterated. Para.7 will show that the contention was that the application was not submitted within the two year period prescribed under clause 19. This contention was rejected in para.8 in the following words: "...........As held by us earlier in S.N.G.S. High School v. Reji Sagar (2008 (1) KLT 1026) the Manager had a statutory duty to inform Smt.V.S.Prasobha before the appointment of the sixth respondent on 12/08/2003 that a vacancy of UPSA has arisen or is likely to arise in his school and that she or one among her children has to apply in the prescribed form claiming appointment to that post. The Manager, instead of adopting the said course kept quite without replying to the representations submitted by Smt.N.S.Prasobha on 17/11/2001 and 08/07/2003 and appointed the sixth respondent as UPSA on 12/08/2003." S.L.P (Civil) No.17444 to 17447/2008 filed against the said Judgment stands dismissed by the Apex Court by order dated 01/08/2008. 31. W.A.No.2211/2008 is another important Judgment concerning interpretation of clause 19 wherein various Judgments were referred to including Deepak's case [2002 (3) KLT 288] and Corporate Manager, Diocese of Thrissur's case [2003 (1) KLT SN. Case No.45 Pg.33] apart from S.N.G.S High School's case [2008 (1) KLT 1026]. The Bench was of the view that the time limit prescribed is only directory. That was a case where the Manager contended that the 3 years period provided for a minor was breached. The plea was considered in para.6 thus: "Ext.R1(a) order is the order governing appointment under the dying-in-harness scheme in Government service. Normally, in the government service, hundreds of vacancies arise every year and a portion of those vacancies are set apart for appointment of candidates under the dying-in-harness scheme. Therefore, the candidates should apply within a reasonable time limit so that the Government can process them, prepare wait list of them and give appointment as and when the vacancies are available in the quota set up for appointment in the dying-in-harness scheme. But, in the case on hand, we notice that the first vacancy to which the 1st respondent applicant can be considered arose only after 13 years of the death of the incumbent's father. Therefore, the delay in making application canvassed by the Manager is only technical. The time limit prescribed in Ext.R1(a) can only be treated as directory in nature and not mandatory, as far as aided schools are concerned." It is clear that the Bench was of the view that the time limit prescribed can only be treated as directory as far as aided schools are concerned. This will in a long way support the contentions of the third respondent in W.P.(C). No.30021/2011. 32. The next decision relied upon by Shri K.E.Hamsa is Snineesh v. State of Kerala [2009 (4) KLT 719]. The same is also of a Division Bench and the various principles were reiterated therein. 33. I had occasion to consider practically all these decisions in the Judgment in W.P.(C).21384/2009 . The vehement argument raised on behalf of the Manager therein was that the application was not proximate to the time of death. The earlier view taken by the various Benches with regard to the said requirement of proximity to the time of death and the different view taken from the Judgment of this Court in Baiju Kumar`s case [2003 (3) KLT 240] onwards have been adverted to in detail and it was held in para.16 thus: "Therefore, even though the earlier Division Benches have viewed that there should be some proximity with the date of death of the employee, later decisions by other Division Benches are of the view that in the light of the obligation of the Manager under the statutory provisions, the Manager has to offer an appointment whenever a vacancy arises. The aspect whether there is a vacancy, is a matter exclusively within the knowledge of the Manager. Therefore, the Manager cannot take a stand that there is delay in making the application. As held by the Division Bench in W.A. No.1164/2005, which is relied on in S.N.G.S. High School's case ( 2008 (1) KLT 1026) there is an obligation cast on the Manager to give employment to the dependent of a deceased aided school teacher, going by the mandatory requirements under Rule 51-A. It was also held that if only there is no response from the dependent within a reasonable time as noted in the request, the Manager would be in a position to make appointment from the open market ignoring the statutory claim available to the dependent." As already noticed the Division Bench in W.A.2791/2009 has upheld the above Judgment. 34. Smt.V.P.Seemanthini learned Senior Counsel for the petitioner in W.P.(C).No.30021/2011 submitted that the view taken by the Division Bench in General Manager, Corporate Educational Agency of Discalced v. State of Kerala and others [2007 (3) KLT Suppl.Pg.32] that the time prescribed in clause 19 is mandatory will have to be accepted. 35. The Division Bench in General Manager, Corporate Educational Agency of Discalced's case (supra) did not consider the impact of the view taken in Baiju Kumar's case [2003 (3) KLT 240] which was affirmed in W.A.No.1164/2005. There is a duty cast on the Manager to inform about the vacancy, and direct to file an application. If there is no response, he can proceed to make a fresh appointment. Herein also the Manager failed to inform the claimant about the vacancy. Hence, the view taken in W.A.No.2211/2008 that the time limit provided in Clause 19 is directory will apply here. 36. The decision of the Division Bench in Priyesh Vasudevan's case [2005 (4) KLT 1003] relied upon by the learned Senior Counsel actually concerns, the claim of a posthumous child of a teacher in an aided school, who died in harness, for appointment under the compassionate scheme after attaining majority. This Court upheld the said claim after elaborately considering the various aspects. The question considered therein is different from those raised in this particular case. Therefore, I am not elaborately discussing the points and the dictum laid down therein. Significantly, in para.34, the Division Bench was also of the view that: "it would not be hence proper, to restrict the scope and application of the scheme on the basis of the law laid down by the Supreme Court in reference to the Schemes which are quite different from the Scheme in force in the State of Kerala". 37. Shri K.E.Hamsa in this context submitted that even if this Court finds that there is a conflict in the views of two Division Benches, in the light of the principles stated by the Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458], the Judgment in W.A.No.2211/2008 being the later at point of time will have to be followed by this Court. Therein, the Full Bench was of the view in para.60 that: "In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one." 38. Thus, an analysis of the legal position will support the view taken by the Government in Ext.P11. The date of death is 08/01/2008 and the date of application is 30/04/2010. Exts.P1 to P1(l) produced in W.P.(C). No.32889/2011 will show that the application was submitted in the prescribed form with all the required documents. Significantly, the application was never rejected by the Manager. Even though it is stated in para.9 in W.P.(C).No.30021/2011 that the application was rejected as per Ext.P7 produced therein, Shri K.E.Hamsa, learned counsel for the third respondent-claimant submitted that no communication has been served on the claimant rejecting the application and Ext.P7 is not at all a rejection at all. A reading of Ext.P7 shows that it is actually in reply to Ext.P8 communication to the District Educational Officer which directed the Manager to consider the claim of the third respondent in that writ petition. In Ext.P7 what is pointed out is that along with annual income, family pension component has not been shown, that the mother actually wanted appointment either as High School Assistant (S.S) or Upper Primary School Assistant, but the applicant has only shown the post of H.S.A (S.S.). It is also stated that 42 appointments made by the Management in teaching and non teaching posts are remaining for approval. What is indicated in Ext.P7 is only that in the light of the above circumstances, the District Educational Officer's letter cannot be considered. Evidently, it does not finally reject the application of the claimant, on the basis of the pleas now raised in the writ petition. Therefore, it can be taken that the Manager has never taken a stand in Ext.P7 that the application is belated and, therefore, it cannot be considered. The Government in Ext.P11 has clearly held that the family pension amount is not liable to be added along with the family income in the light of para.13 of the Government Order Ext.P6 itself. As on the date of application, the income limit was enhanced to Rs.4.5 lakhs as per G.O.(P). No.14/10/P&ARD dated 12/04/2010. 39. Therefore, the question is whether the Government has in any way erred in passing Ext.P11. As already noticed, in Ext.P11 the Government was of the view that there was an obligation on the part of the Manager to inform the claimant about the vacancy. It was never complied with. The Government has also chosen to take the view that merely because of delay of a few months, it cannot be taken as a mitigating circumstance for absolving the Management to offer entitlement under Rule 51B as the rule does not prescribe a minimum period. It was also the view that there was no unreasonable delay for making the application and there is no remoteness between the date of death of the employee and the application for compassionate appointment. It was further pointed out that there is power to condone delay. 40. In terms of the principles evolved in Baiju Kumar's case [2003 (3) KLT 240] and S.N.G.S High School's case [2008 (1) KLT 1026] and the other later decisions relied upon by Shri K.E.Hamsa, it can be seen that herein there was no communication by the Management to the claimant about the occurrence of vacancy and no request was made to the dependant to submit an application. Actually, if there was such a direction and the applicant had failed to submit the application in time alone, the Manager can take a contention that there is delay in submitting the application. Mere defects in the application, if any, will not make the application invalid as opportunities can be given to cure the alleged defects, if any. Therefore, the view taken by the Government in Ext.P11 cannot be said to be illegal or arbitrary or unreasonable in the light of the decision of this Court in Baiju Kumar v. D.E.O., Trivandrum [2003 (3) KLT 240], S.N.G.S High School v. Reji Sagar and others [2008 (1) KLT 1026], Writ Appeal Nos.688/2008, 706/2008, 736/2008 & 761/2008, W.A.No.1164/2005 and the Judgment in W.A.No.2211/2008, which I prefer to follow. 41. Learned Senior Counsel Smt.V.P.Seemanthini submitted that the Department was not right in keeping the entire appointments under check and the fate of those appointees in a fluid state, merely because of the claim raised by an applicant under Rule 51B. Shri K.E.Hamsa pointed out that on 01/06/2010 two vacancies had arisen and the Manager filled up the same in spite of the receipt of the application by the claimant before the date of filling up of the vacancies. Going by the pleading of the Manager in W.P.(C).No.30021/2011, the application submitted by the third respondent was received on 15/05/2010. Evidently, the two vacancies of H.S.A arose on 01/06/2010. The Government's direction in Ext.P11 is to appoint the third respondent in the first vacancy that arose after the date of filing of the application for compassionate appointment. The same will have therefore to be complied with by the Management. 42. The Management will have to rearrange the appointments made and resubmit the proposals for approval after the appointment of the petitioner in W.P.(C).No.32889/2011 is made, and the Department thereafter, will be able to process all the proposals for approval. As rightly pointed out by the learned counsel Shri K.E.Hamsa, if all other appointments are approved, then there will not be any vacancy to appoint the Rule 51B claimant. In the light of the statutory right of the said claimant, the vacancy cannot be filled up by a fresh hand. 43. W.P.(C).No.30021/2011 is dismissed and W.P.(C). No.32889/2011 is allowed. There will be a direction to the Manager to appoint the petitioner in W.P.(C).No.32889/2011 as H.S.A (Social Science) in one of the vacancies which arose on 01/06/2010 within a period of three weeks from the date of receipt of a copy the Judgment and forward the appointment order and other documents to the District Educational Officer for approval within a further period of two weeks and the District Educational Officer will pass appropriate orders with regard to the grant of approval within a further period of one month. Depending upon the said order, the proposal for approval of other teachers and non teaching staff of the institutions which are kept pending due to the present dispute will be taken up and the orders will be passed accordingly without further delay. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms |
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W.P. (C) No. 30021 of 2011 - V.E. Moyi Haji Vs. State of Kerala, (2012) 251 KLR 766posted May 22, 2012, 8:07 AM by Law Kerala [ updated May 22, 2012, 8:07 AM ] |
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