IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 36155 of 2008(D) -------------------------- PETITIONER: --------------- NADESAN, AGED 38, S/O.LATE SREEDHARAN NADAR, THETTIVILA PUTHEN VEEDU, KALLIYOOR PO., THIRUVANANTHAPURAM BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: --------------- 1. SECRETARY TO GOVERNMENT, AGRICULTURE(FARMS), DEPARTMENT, THIRUVANANTHAPURAM. 2. KERALA AGRICULTURAL UNIVERSDITY REP. BY ITS REGISTRAR, MAIN CAMPUS, VELLANIKKARA. BY GOVT. PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.36155 of 2008-D ------------------------------ Dated this the 24th day of February 2009. J U D G M E N T The petitioner’s father late Sreedharan Nadar was an employee of Kerala Agricultural University. He passed away on 22.5.2002 while in service. 2. The petitioner states that he is unemployed and that he was depending on his father for his livelihood. Seeking employment under the dying-in-harness scheme, the petitioner applied to the Kerala Agricultural University. That application was initially rejected by the University by Ext.P5 letter dated 11.4.2007 on the ground that the petitioner’s father obtained employment by furnishing an incorrect date of birth and that he would not have been regularized in the Kerala Agricultural University had he furnished the correct date of birth. This decision was rested on the decision of the Government. The petitioner challenged Exhibit P5 in W.P(C) No.25341 of 2007. By Exhibit P7 judgment delivered on 2.9.2008, this Court quashed Exhibit P5 and directed the Kerala Agricultural University to consider the matter afresh. 3. As directed by this Court in Exhibit P7 judgment, the W.P(C) No.36155 of 2008-D 2 University considered the application for employment assistance afresh and rejected it by Ext.P8 letter dated 24.9.2008 on the ground that the petitioner being a married son of the deceased employee is not entitled to be appointed under the compassionate employment scheme. Reliance was placed on Exhibit P9 letter dated 2.11.2007 sent by the Secretary to Government, Agriculture Department to the Registrar of the University, wherein the Government have taken the said stand. In this writ petition the petitioner challenges Exts.P8 and P9 and prays for a writ in the nature of mandamus commanding the respondents to provide him employment under the compassionate employment scheme. 4. A Division Bench of this Court has in Rev. Mother, Delphine Mary V. State of Kerala (2002(1) KLT 137) held that married sons/daughters are also eligible to be considered for employment under the dying in-harness scheme if they were dependent on the deceased employee at the time of his death. It was held that though marriage may result in change of status of the son or daughter, he/she may continue to be dependent on their father or mother. A similar view was taken by the Division Bench of this Court in St.Ignatius High School V. State of Kerala 2005(3) KLT W.P(C) No.36155 of 2008-D 3 1000 . Further it is brought to my notice that the Secretary to Government, General Education Department had in letter No.61701/J3/2000/G.Edn. dated 6.1.2001 sent to the Director of Public Instruction clarified that married son/married daughter may also be considered for the benefit of compassionate employment scheme if they are otherwise eligible. In letter No.2806/R3/2001/P &ARD dated 19.3.2001 sent by the Principal Secretary to Government, Personnel & Administrative Reforms (Rules) Department, Thiruvananthapuram to the Director of Public Instruction it is stated that married son/daughter may also be considered for the benefit of the scheme if they are otherwise eligible, was also brought to my notice. 5. The stand taken by the Government in Exhibit P9 letter is at variance with the decision of this Court and the Government letters referred to above. In Exhibit P9, the Secretary to Government, Agriculture (Farms) Department has taken the stand that as per para 13 of G.O(P)No.12/99/P&ARD dated 24.5.1999 which presently governs appointments under the dying-in harness scheme, the income of married sons and daughters and other members of the family living separately cannot be reckoned for W.P(C) No.36155 of 2008-D 4 calculating the family income and therefore married sons/daughters are excluded from the purview of the scheme. 6. Para 13 of the GO(P)No.12/99/P&ARD dated 24.5.1999 reads as follows: “Family income to be reckoned is the actual income available to all members of the family from all sources other than family pension. Income from the properties of the members of the family should also be reckoned. Income of the married sons and daughters and other members of the family living separately shall not be reckoned for calculating the family income. In case of disputes on income, the case shall be referred to the concerned District Collector and the income reported by the Collector shall be accepted as the actual income. When salary based income is calculated the pay including all allowances except Travelling Allowance shall be reckoned for the purpose. For this purpose, necessary amendments in the guidelines in G.O(Ms)No.192/85/RD dated 23.3.1985 will be issued, separately.” 7. The Government relies on the aforesaid stipulation that the income of married sons/daughters living separately shall not be reckoned for calculating the family income. The said stipulation does not in my opinion justify the stand taken by the Government in Exhibit P9. If a married son or daughter is residing separately and has his or her own income, it means that he or she is not/was not dependent on the deceased. The stipulation in para 13 of Exhibit P6 Government order is only to the effect that the income of W.P(C) No.36155 of 2008-D 5 married son/daughter living separately shall not be reckoned for the purpose of calculating the family income of the deceased employee. The said stipulation cannot be read as one excluding married sons/daughters from being considered for employment under the compassionate employment scheme. In the light of the decisions of this Court and the Government letters dated 6.1.2001 and 19.3.2001 referred to above, I am of the opinion that the stand taken by the Government in Exhibit P9 and the University in Ext.P8 cannot be sustained. In the result, I quash Exhibits P8 and P9 and direct the Kerala Agricultural University to re-consider the application submitted by the petitioner for employment assistance under the scheme for compassionate employment (Exhibit P6) and take a decision thereon after affording the petitioner an opportunity to establish that notwithstanding the fact that he is married, he was dependent on his late father at the time of his death. Final orders in the matter shall be passed within three months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. ab P.N.RAVINDRAN, JUDGE W.P(C) No.36155 of 2008-D 6 ab